Pre-Trial Procedures

Define Litigation

Process of taking a legal dispute to court; how people resolve disagreements through the legal system

Define Litigate

Engage in a lawsuit; how people resolve disagreements through the legal system

Define Bench Trial

When a judge alone hears the case and makes decision

Jury Trial

When group of citizens (the jury) listen to evidence and decide the outcome

Define Parties/Litigants

Individuals or groups involved in a lawsuit

Define Plaintiff

Person who brings a case against someone else in a civil lawsuit (like if someone sues after a car accident

Define Prosecutor

Government’s lawyer in a criminal case who tries to prove someone committed a crime

Define Defendant

• Person being sued in a civil case

• Person accused of a crime in a criminal case

Define Lawyer

Someone trained in law and can give legal advice

Define Counselor

Provides legal advice

Define Attorney

Lawyer who is licensed to practice law in specific jurisdiction

Define Litigator

Lawyer who specializes in handling lawsuits

Define Bar Association

Professional organization for lawyers in a specific area (like state/county) that often sets ethical rules for lawyers

Define Contingency Fee

An arrangement where lawyer gets paid a percentage of money client receives if they win case (if lose, they don’t get paid)

Define Retainer Fee

Fee paid to lawyer upfront to secure their services (like a downpayment)

Define Attorney-Client Privilege

Confidential relationship; lawyer cannot reveal what their client tells them w/o client’s permission

Define Judge

• Person who presides over court and makes sure trial is fair

• Interprets law and makes decisions about the case

Define Bailiff

Person who maintains order in courtroom and assists judge; ensures security

Define Court Clerk

Official who keeps records of court proceedings and handles administrative tasks

Define Witness

Someone who saw or knows something relevant to case and testifies in court

Define subpoena

Legal order requiring person to appear in court or provide evidence

Define affidavit

Written statement made under oath

Define Perjury

Lying under oath in court testimony or in a sworn statement

Define Stipulated Facts

Facts that both sides in a case agree are true, so they don’t have to be proven

Define Burden of Proof

Responsibility to prove a fact in court

Define Burden of Proof (criminal case)

Prosecution has to prove guilt “beyond a reasonable doubt”

Define Burden of Proof (civil case)

Plaintiff has to prove its remedy “by the preponderance of the evidence”

Define Contempt of Court

Disobeying court order or showing disrespect to court

Define Voir Dire

(old French meaning to “truly say”) Process of questioning potential jurors to select a fair jury

Define Removal/Challenge for Cause

Way to remove potential juror from jury because they are biased or unqualified

Define Peremptory Challenge

Way to remove a potential juror w/o giving a reason (within limits)

Define Deliberation

Process where the jury meets to discuss case and reach a verdict

Define Trier of Fact

• Jury trial: jury

• Bench trial: judge

• Decide what actually happened based on evidence and render a verdict (judgement)

Define Evidence

Anything that can be used to prove or disprove a fact in a trial, like witness testimony, documents, or physical objects

Define Testimony

Statement made by witness under oath in court

Define Objection

• Formal challenge by an attorney to evidence or a question asked during trial

• Typically alleges a breach of rules of evidence or of trial procedure by opposing attorney

Define Sustain

When judge agrees w/an objection and disallows evidence or question

Define Overrule

When judge disagrees w/objection and allows evidence or question

Define Mistrial

Trial stopped and declared invalid due to major error or problem

Define Verdict

• Decision made by jury in jury trial

• Decision made by judge in bench trial

Define Plea Bargain

Agreement between prosecution and defendant where defendant pleads guilty to lesser charge in exchange for lighter sentence

Define Acquittal

Finding of not guilty in a criminal trial

Define Bail-Jumping

Defaulting on one’s own bail

Define Bail Bondsman

One who provides bail as a surety for criminal defendant’s release

Define Bail Bond

Bond given to court to guarantee defendant will appear in court; obtains defendant’s release from confinement

Define Excessive Bail

bail that is unreasonably high considering the offense and risk that the defendant will not appear

Define Surety

Person primarily liable for payment of another’s debt or performance of another’s obligation

What is Order of Process for Bail Process? (3)

1) Arrest

2) Booking (jail)

3) Initial Appearance: judge determines if subject is eligible for bail and cost

What does the judge take into account when determining if subject is eligible for bail and the cost? (5)

1) Seriousness of crime

2) Flight risk

3) Criminal history

4) Ties to the community

5) Danger to others

Define Cash Bail

Accused pays full amount of bail in cash (court may accept checks or credit cards)

Define Surety Bond (Bail Bond)

• Bail bondsman pledges to pay full value of bond if accused does not appear in court; bail bondman charges 10-20% and collects some sort of collateral that usually involves friend/relative

• THEN: Bounty hunter contracted to locate defendant and bring them before court

Define Release on Citation

Suspect is issued a citation to appear before court at later date

Define Release on Own Personal Recognizance

Suspect is responsible for showing up to court dates and does not pay bail; highly unlikely person will flee and not appear for court

Define Property Bonds

Defendant provides property as bond and a lien (right to keep property until debt is paid) is placed on property; if defendant fails to show for court, property is foreclosed on to recover bail

Describe Role of Prosecutor (4)

1) Supervise legality of procedures during investigation and bring criminal action to court

2) Impact police work by returning cases for further investigation and refusing to sign warrants that are lacking probable cause

3) Check police investigations against due process

4) Give instruction on certain acts or decision concerning particular matters

Describe Joint Roles (5)

1) Police and DA investigators may both be responsible for the investigation

2) Prosecutors w/o police cooperation will have problems investigating and presenting evidence in court

3) Police and prosecutors often have conflicting views over the disposition of cases

4) Both parties want justice for victims

5) Both parties present evidence at trial

Describe Role of Police (4)

1) Investigate crime

2) Protect victim

3) Provide evidence and testimony in court

4) Depend on prosecutors to advise them on legal issues and hold them accountable in regards to constitutional rights

Describe Rules of Discover (5)

1) Definition: Formal process by which defense and prosecution exchange info relevant to criminal investigation

2) Provides pertinent info

3) Aids in adequate preparation for trial

4) Helps criminal justice system reach reliable outcomes

5) Evidence can be appropriately scrutinized and give accused a meaningful opportunity to challenge and test evidence

Describe general Purpose of Rules of Evidence (4)

1) Restricts content and manner of presentation

2) Ensures trial runs smoothly

3) Protects against unfair trials

4) Role of prosecutor and defense to challenge rule of evidence violations

Describe Rules Regulating Testimony of Rules of Evidence (13)

1) Purpose is to influence opinion of judge and jury

2) Testimony must be relevant (logically connected) to issue and deemed admissible

3) Testimony that is logical to issue is not always admissible, such as hearsay

4) Witness must testify on firsthand info only (Personal Knowledge Rule)

5) Testimony of defendant’s good character (The Mercy Rule)

6) “Bad Character” evidence may not be submitted unless “good character” evidence is presented first

7) Witness credibility can be challenged by attacking honesty and criminal activity

8) If no good character evidence is entered, then defendant’s past convictions cannot be entered

9) Rape victims are shielded from attacks on sexual history under Rape Shield Laws

10) Hearsay rules prevent testimony that is not firsthand from being admitted

11) Statements not subjected to cross-examination are not permitted

12) Expert testimony may include opinions and references to previous witness’ testimony (expert testimony may be paid)

13) “Chain of Custody” rule regulates admissibility and credibility of evidence to ensure evidence is not tampered with or somehow altered prior to trial

Describe Rules Regarding Scientific Evidence of Rules of Evidence (7)

1) Include scientific or forensic evidence

2) Scientific evidence entered by both sides (DNA, fingerprints, ballistics)

3) Polygraph results are not considered scientifically reliable and are inadmissible

4) Other forms of altered consciousness statements are not accepted

5) Judge determines admissibility by considering: validity of evidence, credibility of science behind it, how influential evidence may be

6) Private info cannot be released w/o consent of holder

7) Confidentiality exceptions (client telling attorney they will commit future crime or holder of privileged info elects to also include third party in communication)

Describe Entry into Court System (5)

1) Person enters court system when arrested (arrest occurs when adequate evidence exists)

2) Once person is arrested, they are taken to jail and booked

3) Police officer (or sometimes prosecutor) files complaint, which is charge

4) Hearsay can be allowed in a complaint

5) If person is not in custody when an officer has his complaint signed by judge, it then becomes a warrant for that person’s arrest

What does booking consist of? (4)

1) Obtaining biographical info about defendant (name, address, date of birth, etc.)

2) Fingerprinting the defendant

3) Taking defendant’s photograph (mug shot)

4) DNA sample may be taken

Describe affidavit (2)

1) Complaint is written statement of essential facts constituting a charged offense (made upon oath before magistrate)

2) Police officer (sometimes prosecutor) files complaint, which is charge

Describe Initial Appearance before Judge (6)

1) First appearance before judge

2) Judge…

• Confirms identity of defendant

• Informs various rights (remaining silent or having attorney)

• Gives date to show up to court for preliminary hearing

• Advises defendant of how much bail is

3) Happens within 24 - 48 hours of being arrested

Describe Bail

Bail is money or property given as security for defendant’s appearance in court (may be lost if defendant does not appear at court date); aka bond

Describe Surety Bond (3)

• When third party agrees to pay bond

• Defendant pays professional bondsman 10% or more of bond amount in exchange for bondsman making defendant’s bail

• Defendant does not get 10% back

Define Property Bond

When defendant pledges a car, house, or other property to retain release

Define Cash Bond

Defendant puts up their own cash to bail out

Define Personal Recognizance

When defendant needs only to promise to appear in court

The 8th amendment does not allow…

bail to be excessive; SCOTUS has ruled that just because defendant cannot pay amount court has set it is not necessarily excessive

Bail amount can depend on… (4)

1) Nature of crime

2) Defendant’s criminal history

3) Flight risk

4) Amount of wealth defendant has

Bail can be denied depending on… (3)

1) Type and nature of crime

2) Flight risk

3) Protection of victim or defendant

Describe Preliminary Hearing (5)

1) Defendant’s second appearance before judge in which court determines if probable cause exists to believe accused committed the crime

2) Purpose of hearing is to have an impartial third party review facts and ensure probable cause exists

3) Preliminary hearing is many times bypassed if grand jury issued the charge(s) in case

4) Hearing is adversarial and can serve as source of discovery for both prosecutor and defense

5) Other motions to throw out illegally seized evidence, etc. are made after preliminary hearing

Define Grand Jury

Group of people who routinely meet to determine whether there is probable cause to believe that defendants committed the crimes they are charged with

Describe Grand Juries (7)

1) Are closed

2) Are presented evidence by prosecutor only

3) Deliberations are secret

4) Do not have defendant present

5) Has power to subpoena witnesses to testify and give immunity from prosecution

6) If grand jury finds probable cause does not exist, defendant is issued a true bill of indictment or is indicted

7) If grand jury finds probable cause does not exist, defendant is not billed and case dropped

Describe Arraignment (6)

1) After formal charges have been filed, defendant is brought to court for arraignment

2) Arraignment is hearing at which defendant is brought before judge to hear charges and enter plea

3) Defendant will enter following pleas: Not guilty, guilty, or nolo contendere or no contest (“I do not contest it”; defendant neither admits nor denies charges and has no intention of defending themselves)

4) Guilty plea must be voluntarily and defendant must be aware of its implications

5) No plea is same as not guilty plea

6) Plea bargain can be announced

Define plea bargain

Negotiation between prosecutor and defendant’s lawyer where defendant pleas guilty for lesser punishment so case doesn’t go to court (has to be approved by court)

Define Booking

Process where a suspect is taken to jail and their information is recorded

Define Initial Appearance

First appearance before a judge where bail is typically set

Define Preliminary Hearing

Hearing where the prosecution must show probable cause after an arrest

Define Discovery

Process in which the prosecution and defense exchange information before trial

Define No Bill

Grand jury does not find enough evidence to charge the defendant

Define Court Reporter

Official responsible for keeping an accurate transcript of court proceedings

Define Defense Attorney

Role of representing the defendant

Define Hearsay

Testimony not allowed because the witness did not see or hear the event themselves

Define Chain of Custody

Rule that requires evidence to be properly documented

and handled before trial by those who collected, stored,

and handled the evidence

Define Hung Jury

Result if a jury cannot unanimously agree on a verdict

Define Habeas Corpus

Legal process that protects against illegal imprisonment and allows someone to challenge their detention

Define Due Process

Required method for judicial proceedings or other governmental activities designed to safeguard the legal rights of individuals

Define Substantive Due Process

Principle that the 5th and 14th Amendments protect fundamental freedoms

Define Procedural Due Process

Government must use fair and consistently applied procedures in fulfilling its responsibilities

Define Writ of Habeas Corpus

Directive from a court requiring the government to justify the imprisonment of a citizen

Define Trial By Jury

Persons charged with a crime have the right to allow

citizens to determine their guilt or innocence