Studied by 9 people
Bail
guarantee, and in return for being released from jail, the accused promises to return to court as needed.
Bail agent
a person whose business it is to effect release on bail for persons held in custody by pledging to pay a sum of money if a defendant fails to appear in court as required.
Forms of bail
Release on recognizance, cash bond, property bond, bail bond, unsecured bail
Release on recognizance (ROR)
judge releases a defendant from jail without monetary bail if they believe the person is not likely to flee.
Cash bond
the accused must post either the full amount of cash bail with the court or a percentage of it in the form of a cash bond. All this money will be returned when all court appearances are satisfied. o This form of bail is rarely used because it requires a large amount of cash, and most people cannot raise that much money easily.
Property bond
most states allow a defendant (or friends or relatives) to use a piece of property as collateral. rare because courts generally that equity in property must be double the amount of the bond.
Bail bond
arrestee hires a bail agent (often called a bail bondsman), who posts the amount required and charges a fee for services rendered, usually 10% of the amount of the bond.
Unsecured bail
bail amount is set but nothing needs to be posted with the court unless one violates a bail condition. Must have written agreement with the court that you are liable for a fixed sum of money if you fail to comply with the conditions of the bond.
Factors the guide judge's discretion in setting bail
risk of flight and other nonappearance, risk to self or others, and situational justice
Risk of flight and other nonappearance
Considered the suspect's ties to the community in terms of stable employment, property ownership, marital status, number of close & stable relationships, length of presence in the community
Risk to self and others
Considers the suspect's mental condition, the seriousness of the crime(s) for which the suspect was arrested, and the arrestee's prior criminal history
Situational justice
Considers factors such as how the defendant appears, acts, responds to questions, and the like. Use of situational justice might lead judges to make certain judgements about defendants based on demographic characteristic, resulting in racial, ethnic, gender, and sexual orientation disparities to manifest themselves in bail decisions.
Consequences of violating bail
bail is forfeited and warrant issued for suspects arrest
Bench warrant (capias)
an order issued by the court itself, or from the bench, for the arrest of a person based on the person's failure to appear in court as directed; Person must be delivered to the judge issuing the warrant and cannot be released on bail; Failure to appear often subjects the defendant to a separate criminal charge of bond jumping; Defendants who fail to appear do not always intend to miss their court dates; Failure-to-appear rates are closely related to practices within the court; Defendants were not given clear notice of the next appearance date; Lengthy delays in disposing cases. Increase in time of arrest to trial = increased rate of nonappearance.
8th Amendment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Discovery
informal exchange if information between prosecution and defense
Brady v. Maryland
The U.S. Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is mater either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution."
Exculpatory Evidence
Any evidence that may be favorable to the defendant at trial either by tending to cast doubt on the defendant's guilt or by tending to mitigate the defendant's culpability, thereby potentially reducing the defendant's sentence.
Impeachment Evidence
Any evidence that would cast doubt on the credibility of a witness.
On the spot decisions
may latter be challenged in court as violations of suspects' constitutional rights Police must often make immediate decisions about searching or interrogating a suspect.
How can an attorney motion to suppress the evidence
A defense attorney who believes that his or her client was identified in a defective police lineup, gave a confession because of improper police activity, or was subjected to an illegal search can file a motion to suppress the evidence.
When is the burden of proof shown
During the hearings on these pretrial motions, the defense attorney usually bears the burden of proving that the search was illegal or that the confession was coerced. Only exception involves an allegation that the Miranda warnings were not given, in which the state has the burden of proof.
Swearing matches
Pretrial hearings on a motion to suppress evidences
Filling pretrial motions to suppress evidence may produced benefits for the defense such as
o If motion is granted, the defense wins, because the prosecutor will usually dismiss the case for lack of evidence. o Even if motion is denied, defense may be able to discover information that may later prove valuable at trial. o Filing pretrial motion keeps options open; plea bargaining remains a possible course of action.
Major barriers defense attorneys face in raising objections:
o Defense must frame the issue and determine whether enough facts exist to support the contention. § Police said to follow proper procedures most of time, so the task of the lawyer is to separate the out-of-the-ordinary situation from the more numerous ones in which the police have not violated relevant court rulings.
Miranda v. Arizona
· Miranda had extensive criminal history o Was interrogated by officers and told he failed a lineup o Signed a written confession admitting guilt o Found guilty by jury o Was not advised of his constitutional rights · Supreme Court adopted specific procedures for custodial police interrogations. · Decision in Miranda v. Arizona allowed the Court to impose Miranda warnings. o Before a suspect in custody may be lawfully interrogated, the police are required to tell the suspect: § You have the right to remain silent. § Anything you say can and will be used against you in a court of law. § You have the right to talk to a lawyer and have him or her present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish
Search Warrant
a written document, signed by a judge or magistrate, authorizing a law enforcement officer to conduct a search.
Affidavit
Written statement of facts sworn to before the magistrate.
Executing search warrants
Executed in a timely manner
Limited to achieving objective of warrant
Reasonable time of day
Knock-and-announce their presence, authority, and purpose before entering / No knock exceptions
Performance of search warrant must be reasonable (4th Amendment reasonableness requirement) Reasonable amount of force when searching
Warrantless searches
Search without a warrant. Unreasonable under the 4th Amendment subject to a few exceptions
Forms of warrantless searches:
Consent, Plain view, Incident to lawful arrest, Inventory Search, Exigent Circumstances
Consent
4th Amendment rights may be voluntarily waived. If permission is granted when police ask for permission without probable cause and/or a warrant, then any evidence found may be used in criminal prosecution.
Plain View
When law enforcement officer is legally in a place in which he/she sees contraband or other evidence that provides probable cause to believe criminal activity is afoot, the evidence may be seized w/o warrant. Has extended to "plain smell" and "plain touch."
Incident to Lawful Arrest
Police can search someone who is lawfully arrested to remove any weapons the person might use to resist arrest or escape. Can also search and seize any evidence on the arrestee's person or in the area within his/her immediate control in order to prevent its concealment or destruction.
Inventory Search
After lawfully taking property into custody (like an impounding car), police may conduct a warrantless search of the property in order to protect the owner's property, protect police from potential danger, and to guard against claims of theft or loss
Exigent Circumstances
emergency situations make it impracticable for police to seek and obtain a warrant first.
ple bargaining
Defendant pleads guilty with an exception of receiving consideration from the state.
Charge Bargaining
Prosecutor allows the defendant to plead guilty in return for a less serious charge than the one originally filed. The principal effect of a plea to a less serious charge is to reduce the potential prison term the defendant will have to serve. Bargains for reduced charges are most commonly found in jurisdictions where the state's criminal code is rigid or where prosecutors routinely overcharge.
Count Bargaining
In return for the defendant's plea of guilty to one or more counts in the indictment or information, the prosecutor dismisses the remaining charges. Defendant pleads guilty to some, but not all, of the counts contained in the charging document, which reduces the potential sentence. Reduces the defendant's potential sentence but in a very different way. Defendant will receive the same penalty no matter how few or how many charges are involved.
Sentence Bargaining
Defendant pleads guilty to original charge in exchange for a promise of leniency in sentencing. o Defendant pleads guilty knowing the sentence that will be imposed; the sentence in the sentence bargain is less than the maximum. Defendant typically pleads to original charge (plea on the nose). Sentence agreed to is the one typically imposed in similar cases
Nolo Contendere
Latin phrase meaning "I will not contest it." A plea of "no contest" in a criminal case means that the defendant does not directly admit guilt but submits to sentencing or other punishment.
Alford Plea
Plea allows a defendant to plead guilty while claiming innocence.
Petit Jury
another term for trial judges and differentiate them from grand juries
Trial by jury
· Not all persons accused of violating the criminal law are entitled to trial by jury. o Both youths prosecuted as juvenile offenders and adult offenders charged with petty offenses have no right to have their case heard by a jury. § Sixth Amendment covers only adults charged with serious offenses. § Some states guarantee a jury trial to anyone facing any criminal charges whatsoever, including traffic offenses.
Bench Trial
o When there is no right to a jury trial, a bench trial takes place in which a judge serves as both the trier-of-law and trier-of-fact determining guilt. o Bench trials are not limited to cases in which no right to a trial by jury exists. § Parties can waive the right to a trial by jury and opt for a bench trial § Either pretrial publicity or the facts of a case might motivate the parties to seek a bench trial. q This might be true in criminal cases where the defendant has a long criminal history or is accused of a heinous crime since it may be hard to get a fair and impartial jury. o State laws vary on when prosecution and/or defense may waive a trial by jury in criminal cases.
Determining jury size
· Size of juries fixed at 12 and universally accepted o Not required by Constitution because Supreme Court declared that the number 12 was a "historical accident, unnecessary to effect the purposes of the jury system and wholly without significance except to mystics" · 6-person jury in Florida in noncapital cases was large enough to promote group deliberations. o Attempts to use juries with fewer than 6 members were struck down. · Many states have specifically authorized juries of fewer than 12 jurors, but most allow these smaller juries only in misdemeanor cases. o In federal courts, defendants are entitled to a 12-person jury unless the parties agree to a smaller jury, but 6-member juries in federal civil cases are quite common. · Debate over whether small juries provide defendant with a fair trial because there are inconsistent findings on the differences in the conduct deliberations between 6- and 12-person juries. o Racial, ethnic, religious, & sexual minorities represented in smaller percentage on 6-person as compared to 12-person juries o Larger juries deliberate longer than smaller juries o Talking time more evenly divided among small juries; allows for less domination by stronger voices o Members of larger juries more accurately recall evidence both during deliberation and in individual recall afterward o 12-persons recall more probative information and rely on evaluative statements and nonprobative evidence less than 6-persons o 6-persons show more variability in their awards and give larger awards than 12-persons o Jurors report more satisfaction in the deliberation process with 12-persons than with smaller ones.
Jury Verdict Unanimity
o The requirement that a jury reach a unanimous decision became a firm rule in England in the 14th century. § Agreement by all the jurors legitimized the verdict, giving community a sense that conclusion must be correct. o Most states require unanimous verdicts in criminal trials; only 5 states permit non-unanimous criminal verdicts. o In any case, six-member juries must be unanimous. o Non-unanimous juries tend to be hung less often, deliberate less thoroughly, and result in less-satisfied jurors. § These results can easily be explained by the fact that the deliberation process differs a lot depending on whether a unanimous or majority verdict is permitted. o When juries not required to be unanimous, they tended to be more verdict driven. More likely to take the first formal ballot during the first 10 minutes of deliberation and to vote until they produced a verdict. § Juries that were required to reach a unanimous verdict tended to delay their first vote and discuss the evidence more thoroughly and rated their deliberations as more serious and thorough.
Steps in the jury process
Compilation of a Master Jury List, Drawing of the Venire (Jury pool), and Voir Dire
Master jury list
Voter registration lists are the most frequently used source for assembling this list.
Advantages of a master jury list
Readily available, frequently updated, collected in districts within judicial boundaries
Disadvantages of a master jury list
Exclude poor, young, minorities, and less educated
Drawing of the Venire (jury pool)
Sufficient number of names are randomly selected from the master jury list and a summons is issued—a court order commanding these citizens to appear at the courthouse for jury duty.
Voir Dire
Involves the preliminary examination of the prospective juror in order to determine his or her qualifications to serve as a juror.
Principal Challenges
strikes of potential jurors because they have some relationship with one of the participants in the case. They are presumed to be partial on account of this relationship.
Fact-Partial Challenges
strikes of potential jurors because the subject matter of the dispute presents issues on which the potential juror is biased, prejudiced, or predisposed to a particular outcome because of their belief system or experiences.
Baston v. Kentucky
Supreme Court restricted the ability of prosecutors who used peremptory challenges to keep African Americans off the jury in any case involving African American defendant.
J.E.B. Petitioner v. Alabama
Lawyers may not exclude potential jurors from a trial because of their sex. o Principle of non-discrimination at the core of both cases.
Presumption of Sanity
Requires that all defendants be presumed sane unless sufficient evidence of their insanity is proven
Presumption of Innocence
Requires the trier-of-fact to accept that the defendant is innocent unless the prosecution meets its burden to prove that the defendant is guilty beyond a reasonable doubt.
Burden of Production
party must produce some evidence to put facts in issue
Burden of Persuasion
The obligation of a party to prove a fact to a certain level, either beyond a reasonable doubt, by clear and convincing evidence, or by a preponderance of the evidence.
Reasonable Doubt
legal yardstick measuring the sufficiency of the evidence. This burden of proof does not require that the state establish absolute certainty by eliminating all doubt.
Direct Evidence
First-hand evidence that does not require any inferences to be drawn in order to establish a proposition of act.
Circumstantial Evidence
Indirect evidence. To reach a conclusion, the trier-of-fact would have to reason through circumstantial evidence and infer the existence of some fact in dispute, such as inferring that the defendant killed the victim because the defendant's fingerprints were found on murder weapon.
Real Evidence
· also referred to as physical evidence. Consists of tangible objects such as documents, drug paraphernalia, clothing, and weapons.
Rules of Evidence
Presentation of evidence during trial is governed by principles
Best-Evidence Rule
to prove the content of a writing, recording, or photograph, the original is generally required, since a copy is too easily altered.
Hearsay
· secondhand evidence. Testimony that is not based on personal knowledge but rather is a repetition of what another person has said. Not admissible because it is impossible to test its truthfulness
Relevancy
· evidence is relevant if it shows the existence of any fact that is of consequence to the determination of the action by making that fact more probable or less probable than it would be without the evidence. o Evidence that does not tend to prove disprove any material fact in dispute is irrelevant and inadmissible.
Timely Objections
§ Attorneys must always be alert and ready to make timely objections to the admission of evidence. § After a question is asked but before the witness answers, the attorney may object if the evidence is irrelevant or hearsay. Court then rules on the objection, admitting or barring the evidence.
Mistrial
§ Sometimes, inadmissible evidence will inadvertently be heard by the jury if witness overelaborates. If the erroneous evidence is deemed so prejudicial that a warning to disregard is not sufficient, the judge may declare mistrial.
Challenging Forensic Science
§ Significant errors in lab testing have been documented. § Part of the problem lies with workload, as crime labs have become victims of their own success with requests for scientific tests growing faster. § Negligence or outright misconduct in crime labs § Some cases have been dismissed or convictions reversed because testimony concerning scientific evidence proved unreliable § SC made challenging scientific evidence easier holding that crime lab reports may not be introduced as evidence unless the person responsible for creating them gives testimony and is subject to cross-examination
Prejudicial Pretrial publicity
· refers to the media's ability to taint the venire so that potential jurors are incapable of rendering a fair and impartial verdict based on the evidence presented in court because pretrial publicity has already shaped their opinions of the case.
Gag Orders
· forbidding those involved in the case from talking to the press. Violations are punishable as contempt of court.
Changes of Venue
· if court is convinced that a case has received such extensive publicity that picking an impartial jury is impossible, the trial may be shifted to another part of the state.
Sequestration of the jury
shielding the jury from press coverage of an ongoing trial. The jurors live in a hotel, take their meals together, and participate in weekend recreation together. Newspapers and tv news is censored.
Alibi Defense
showing evidence a defendant was not at the scene when the crime occurred
Affirmative defenses
defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts.
Duress defense
here is an immediate threat of death or serious bodily injury to the actor
Entrapment
defense to criminal charges on the basis that the defendant only committed the crime because of harassment or coercion by a government official.
Insanity
mental disorder defense, is an affirmative defense by excuse in a criminal case, arguing that the defendant is not responsible for their actions due to an episodic psychiatric disease at the time of the criminal act.
Why do we sentence
retribution, deterrence, rehabilitation, incapacitation, restoration
Retribution
o Retribution focuses on past behavior and stands for sentencing as punishment for the crime committed. o Concept based strongly on moral principles: Individuals are held responsible for their own actions. o Punishing wrongdoers reflects a desire for revenge: Because the victim suffered, the criminal should suffer.
Lex Talionis
eye for an eye
Just Deserts
o new, more humane view of retribution. § Offender justly deserves to be punished for having wronged another person in violation of the law. § Also, society has the right and obligation to punish all transgressions because such acts should be viewed as offenses against society as a whole
Incapacitation
o Lock them up and throw away the key. o The assumption of incapacitation is that crime can be prevented if criminals are physically restrained. o Differs from theory of retribution in two different ways: § Incapacitation is future oriented—goal is to prevent future cries, not punish past ones. § Focuses on personal characteristics of the founder—type of person committing the crime is more important than the crime committed. o No intention of reforming the offender
Deterrence
o Let the sentence be a warning to others o The purpose of the deterrence theory is the prevention of future crimes not only by punishing the wrongdoer but rather preventing other potential offenders from committing crimes. o Does not propose to change offenders—just deter them
General Deterrence
goal of criminal punishment presumes that the threat of punishment will prevent the general population from engaging in the proscribed conduct.
Specific Deterrence
goal of criminal punishment postulates that those for whom the general deterrent of law was insufficient to prevent them from having engaged in the proscribed conduct should be subjected to punishment so that they will be personally discouraged from engaging in the proscribed conduct again.
Rehabilitation
o The idea of rehabilitation assumes that criminal behavior is a result of social or psychological disorders and that the treatment of such disorders should be the primary goal of corrections. o Concerns helping offenders assume a constructive place in society through vocational, educational, or therapeutic treatment. o Sentences should fit the offender rather than the offense.
Pretrial Diversion
o an alternative to prosecution that seeks to divert certain offenders from traditional criminal justice processing into programs of supervision and rehab services.
Restoration
Seeks to replace retribution with restoration.
Restorative justice is based on three distinct elements:
Crime is primarily a conflict between individuals, which results in injuries to victims, the community, and the offender as well. Therefore, crime is only secondarily a violation of governmental laws.
The principal aim of the criminal justice system should be to repair these injuries. Promoting peace and reconciling parties more important that punishing the guilty.
The criminal justice system should facilitate involvement of victims, offenders, and the community. Lay citizens should play a central role in the CJ system, and professionals should play less of a role.
Legislative Sentencing Responsibility
o Government, Congress, Legislature o Responsible for creating sentencing options in the criminal codes they enact. o Specify terms of imprisonment in different ways.
Indeterminate Sentences
Range of years. Stipulate with a minimum and a maximum amount of time to be served in prison.
Determinant Sentences
fixed sentence. Consist of a specified # of years.
Judicial Sentencing Responsibility
o Only judge has the authority to choose among the sentencing options provided by the legislature. o Rehabilitative Model § Wide discretion = punishment should fit the criminal/crime. o Due Process Model § Discretion = inequity o Crime Control Model § Discretion = leniency
Parole
conditional release of an inmate from incarceration, under supervision, after a portion of the prison sentences has been served.
Parole Boards
o administrative body whose members are chosen by the governor to review the cases of prisoners eligible for release on parole. Controlled length of prison term.
Good Time Policies
prisoners are awarded days off their minimum or maximum terms as a reward for good behavior or participation in various vocational, educational, and treatment programs.
Note 
Flashcard (78)