Chapter 8 Traditional Persecution

What is the trial in the adversary system of justice?

The penultimate act in the adversary system.

What are trials considered in the adversary system?

Public battles between two opposing parties.

Who are the opposing parties in a criminal trial?

The prosecution and the defense.

Who are the opposing parties in a civil trial?

The plaintiff and the defendant.

What is the prosecution’s primary goal?

To obtain convictions.

What is the criminal defendant’s primary goal?

To maintain their freedom.

What is the civil plaintiff’s primary goal?

To receive compensation.

What is the civil defendant’s primary goal?

To be absolved of wrongdoing.

Why are many criminal cases dismissed before trial?

Lack of evidence or other difficulties with the prosecution’s case.

What resolves most criminal cases that are not dismissed?

Plea bargains.

What is plea bargaining?

A defendant pleads guilty in exchange for a concession from the prosecutor.

What concessions might a prosecutor offer during plea bargaining?

Reduced charges, fewer charges, or a reduced recommended sentence.

What right does a defendant give up when accepting a plea bargain?

The right to a trial.

How are most civil cases resolved?

Through settlement negotiations.

What usually happens if police believe a suspect committed a crime?

They will probably arrest the suspect.

Who makes the formal decision to continue with a prosecution?

The prosecuting attorney, not the police.

What is the initial appearance?

The defendant’s first appearance before a judge after arrest.

How soon must an arrested person be brought before a judge?

Within 48 hours of arrest.

What constitutional amendment requires an initial appearance within 48 hours?

The Fourth Amendment.

What does the judge review during the initial appearance?

Evidence summarized by the prosecutor.

What happens during the initial appearance?

The judge explains the charges, constitutional rights, bail, and attorney arrangements.

What happens if a defendant cannot afford an attorney?

The judge appoints an attorney.

What is the main purpose of a preliminary hearing?

To filter out cases where the prosecution has insufficient evidence.

What must the prosecution demonstrate at a preliminary hearing?

Some evidence supporting every element of the charged crime.

Is a jury present during a preliminary hearing?

No.

Do defendants typically testify or present evidence during preliminary hearings?

No, they rarely do.

What might a judge do after a preliminary hearing?

Send the case to a grand jury or reduce the charges.

What is a grand jury?

A group of 12 citizens who meet privately with a prosecutor to investigate criminal activity.

What is the purpose of a grand jury?

To determine whether sufficient evidence exists to justify a trial.

What is an indictment?

A formal accusation describing the crime charged.

Can a grand jury call additional witnesses?

Yes, if dissatisfied with the witnesses presented by the prosecutor.

What happens if a grand jury finds sufficient evidence?

It issues an indictment.

What is an arraignment?

A court proceeding where the defendant is asked to plead guilty or not guilty.

What does the judge ensure during arraignment?

That the defendant has an attorney.

Why do defendants commonly plead not guilty during arraignment?

To allow time for discovery and plea bargaining.

What is discovery?

The process of reviewing evidence and information that may be used at trial.

What evidence must prosecutors generally share with the defense?

Exculpatory evidence.

What is exculpatory evidence?

Evidence suggesting the defendant is not guilty or that prosecution witnesses are not credible.

What defenses must defendants sometimes disclose to prosecutors in advance?

Insanity or alibi defenses.

What is discovery in civil cases?

Each side can question the other’s witnesses and review documents that may be used at trial.

What are pretrial motions?

Requests asking the judge to make rulings before the trial.

What is a motion for separate trials?

A request to hold separate trials for multiple defendants.

What is a motion to sever counts?

A request to hold separate trials for different criminal charges.

What is a motion for change of venue?

A request to move a trial because of community opinions or potential bias.

What is a motion to suppress?

A request to prevent certain evidence, such as a confession, from being used at trial.

What is a motion in limine?

A request for a pretrial ruling about whether certain evidence can be admitted.

What is the purpose of deciding whether previous convictions can be introduced?

To determine whether the prosecution may use prior convictions as evidence.

What is bail?

Money or other conditions required for a defendant’s release before trial.

What is the judge’s responsibility when deciding bail?

Determining whether the defendant should remain in custody or be released before trial.

When might a judge deny bail?

When the defendant is considered a flight risk or poses a safety concern.

What happens when a defendant deposits bail money with the court?

The defendant may be released while promising to return for future hearings.

What is a bail bondsman?

A person or business that helps a defendant obtain release by providing a bail bond.

What happens if a defendant fails to appear in court after posting bail?

The bail money may be forfeited.

What are the two main purposes of bail?

Ensuring the defendant returns to court and protecting public safety.

What are legal factors influencing bail decisions?

The seriousness of the offense and the defendant’s prior convictions.

What are extralegal factors influencing bail decisions?

Factors such as the defendant’s race and gender.

How does the seriousness of an offense affect bail?

More serious offenses are associated with higher bail or bail denial.

How do prior convictions affect bail decisions?

Defendants with prior convictions are more likely to receive high bail or be denied bail.

How did race influence pretrial release decisions in the research presented?

Black defendants were less likely to be released than other defendants.

What percentage of Black defendants were released according to the presented research?

61%.

How did gender influence bail decisions?

Female defendants were assigned lower bail amounts than male defendants.

What is the matching heuristic?

Judges make decisions using only a small subset of available case information.

What factors might judges focus on when using the matching heuristic?

Offense severity and prior criminal record.

Does pretrial detention affect trial outcomes?

Yes. Detained defendants are more likely to plead guilty, be convicted, and receive longer sentences.

How does pretrial detention affect defendants compared with those who can afford bail?

Detained defendants often experience worse outcomes even when the evidence and offense seriousness are similar.

What is preventive detention?

Detaining accused individuals considered risks for fleeing or dangerous behavior.

When did the movement toward increased preventive detention begin?

Around 1970.

Which individuals have sometimes been targeted for preventive detention?

Violent offenders, individuals with severe mental illness, and suspected terrorists.

What is one major problem with preventive detention?

Predictions about future dangerous behavior are not always accurate.

What percentage of criminal cases end in plea bargains rather than trials?

Approximately 90–95%.

What is charge bargaining?

The prosecutor drops some charges in exchange for a guilty plea.

Why might prosecutors overcharge defendants?

To create opportunities to drop charges during plea negotiations.

What is sentence bargaining?

The prosecutor recommends a reduced sentence in exchange for a guilty plea.

Do judges generally follow prosecutors’ recommended sentences?

Yes, in general.

Why do defendants agree to plead guilty?

They may believe conviction is likely and fear receiving a lengthy sentence.

Why might prosecutors offer plea bargains when evidence is weak?

To resolve difficult cases without risking losing at trial.

Why might prosecutors offer plea bargains to obtain testimony?

To secure one defendant’s testimony against a more culpable defendant.

Why do prosecutors use plea bargaining to expedite cases?

It helps move cases through the criminal justice system more quickly.

What are framing effects?

The way choices are presented as gains or losses influences decisions.

How do people respond to decisions framed as gains versus losses?

People are generally more willing to take chances when alternatives are presented as gains.

What is overconfidence bias?

The tendency to be overly optimistic about one’s chances of obtaining a favorable outcome.

What are three arguments supporting plea bargaining?

It reduces case backlogs, helps prosecute other offenders, and reduces criminal justice system workload.

How does plea bargaining reduce the court backlog?

Guilty pleas resolve cases without requiring full trials.

What are major criticisms of plea bargaining?

Unfair sentences, surrendered constitutional rights, excessive prosecutorial power, and coercion of innocent defendants.

Why can plea bargaining result in improper sentences?

Sentences may be too harsh or too lenient.

Why do critics believe plea bargaining threatens constitutional rights?

It encourages defendants to surrender their right to trial.

Why might innocent defendants accept plea bargains?

They may feel pressured or fear receiving harsher sentences if convicted at trial.

How are most civil disputes resolved?

Through private settlement negotiations between attorneys.

What is the most important factor determining civil settlement amounts?

The legal merits of the case.

What is a reservation price?

The amount of money a party is willing to accept or pay to reach an agreement.

What is the defendant’s reservation price?

The maximum amount of money the defendant is willing to pay to settle.

What is the plaintiff’s reservation price?

The minimum amount of money the plaintiff is willing to accept to settle.

What is self-serving bias in settlement negotiations?

The tendency to interpret information in a way that favors one’s own interests.

What is anchoring in settlement negotiations?

The tendency for the initial amount proposed to influence later negotiations.

According to Miller and Boster (1977), what are three purposes of a trial?

Testing credibility, resolving conflict, and searching for truth.

What is the trial as a test of credibility?

Judges and jurors evaluate the truthfulness of opposing witnesses and evidence.

Why is evaluating credibility difficult?

Evidence and testimony may be incomplete or biased.

What is the trial as a conflict-resolving ritual?

A process that resolves controversies and creates a sense that justice has been done.

What is the trial as a search for truth?

The belief that truth emerges through examining conflicting facts and evidence.

What does the search for truth assume about judges and jurors?

That they can put aside prejudices and objectively evaluate evidence.