Law & Society Exam 2

Rights of the Individual vs. Society as a Whole

• the law functions to protect both of these rights

  • e.g. the law should both protect citizens from crime, but also protect the accused from an unfair trial

• however, what is best for the individual or seems a logical right is not always best for the common good

• through time, the tension between these two rights is illustrated in legal decisions

  • e.g., Miranda v. Arizona, 1966

Rights of the Individual vs. Society as a Whole is reflective of what two competing models of criminal justice?

• Due Process Model

• Crime Control Model

Due Process Model

places the primary value on the protection of citizens from possible abuses by the police and law enforcement system generally

• assumes the innocence of suspects

• accounts for humans error in the criminal justice process

• fairness over efficiency

Crime Control Model

seeks the punishment of lawbreakers, emphasizing the efficient detection of suspects and prosecution of defendants so that society can be assured that criminal activity is being contained or reduced

• repression of criminal conduct is the most important function in the criminal justice process

• Efficiency

• early determination of probable guilt or innocence

• presumption of guilt, meaning a complex of attitudes toward the case

• e.g.,California’s three strike law

Efficiency

the capacity to apprehend, try, convict, and dispose a high proportion of criminal offenders whose offenses become known

Exclusionary Rule

designed to prevent the prosecution from introducing evidence obtained in violation of a defendant’s constitutional rights

fruit of the poisonous tree doctrine

evidence is inadmissible when a defendant can demonstrate a causal connection between the evidence and a prior rights violation

the adversarial system

• the feature of the U.S. legal system that isn most fundamental to its definition, operation, and character is its central tenet: that conflict resolution is best achieved through an adversary process

  • relies on the skill of the different advocates representing the parties’ positions and not on a neutral party

the adversarial system assumes three things:

• those who the dispute affects should be responsible for making their arguments

• the biases of self-interest

  • are necessary motivators in discovering the truth

  • are offset by placing the dialogue in the courtroom (a neutral place with neutral supervision)

• the conflict can take place within our system of law

adversarial system (Common Law Countries)

• US, Canada, UK

• Each side presents its best evidence and an independent fact-finder decided the outcome

• judges ensure due process and decide what evidence to admit

Inquisitorial approach (Civil Law Countries)

• France, Germany, Spain, Etc.

• The judges asks the questions of the witnesses (who testify for the court) and makes a decision

Adversarial vs. Inquisitorial: Historical Polarities In Values

Adversarial System:

• Fundamental Fairness is paramount — even if ‘unjust’ results occur occasionally

• Belief that competitive advocacy is the best way to the truth

• individual rights may trump the truth

Inquisitorial System:

• Search for truth in paramount — even if ‘unfair’ means are used occasionally

• Belief that judicial control of a criminal case is the best way to the truth

• The truth may override individual rights

Adversarial vs. Inquisitorial: Historical Polarities In Role of Attorneys

Adversarial System:

• Active, responsible for producing evidence and questioning witnesses

• Prosecutors and defense attorneys are more partisan, competitors

Inquisitorial:

• Less active, less responsible for developing evidence

• prosecutors and defense attorneys less partisan, mainly aid in the search for truth

Adversarial vs. Inquisitorial: Historical Polarities In Role of Parties, Witnesses

Adversarial System:

• More party control of disputes and less intervention

• More oral testimony

• Short questions and answers

Inquisitorial:

• Less party control of disputes; more control by judge

• More written testimony

• Long narratives

Adversarial vs. Inquisitorial: Historical Polarities In Rules of Evidence

Adversarial System:

• Stricter, more complex rules of evidence

• More exclusionary rules to control police, prosecutors, and judges

• Presented to laypersons

Inquisitorial:

• Fewer, more lax rules to evidence

• More discretion for judges and governmental decision maker

• Presented to jurists

Adversarial vs. Inquisitorial: Historical Polarities In Rights of the Accused

Adversarial System:

• More due process rights

• Right to remain silent; may not be able to question the accused

• More privacy rights

• Model weighted toward due process: protecting individuals from excessive governmental interference

• Presumption of innocence

• Confessions end investigation

Inquisitorial:

• Fewer due process rights

• May be a non-incrimination right; can ‘inquire’ of and question the accused

• few privacy rights

• Model weighted toward crime control; protect society by granting more power to governmental officials

• presumption of cooperation

• confessions entered as evidence

Advantages of the Adversarial System

• Both parties investigate the case; get ‘both sides of the truth’

  • Trial lawyer has ample opportunity to uncover truth

• Motivates each party to put forth efforts to find truth and persuade the fact finder in a competitive trial

• promotes more respect for individual rights

• formal rules preserve an equal playing field; assume fair administration of justice

• Less removed from the average citizen

• Trial by jury — better than the government paid agent

  • because cases in the adversarial system are resolved by plea bargaining/settlement, the above criteria are called into question

Advantages of the Inquisitorial System

• one investigation of the case

• brings investigation of cases before a detached magistrate — avoids overzealous detectives and prosecutors

• promotes more respect for individual duty, responsibility and security of society as a whole

• informal and less complicated process assures efficient administration of justice

• panel of judges or government paid agents are less biased than the average citizen

Critiques of the Adversarial/Inquisitorial Systems

Adversarial

• truth suffers when rights become obstacles (e.g., to investigation, exclusion)

• complex rules of evidence are difficult for laypersons to understand

• investigative work is left to partisans

• the judge has too little power

• trials become length, process is slow, backlog develops

• excess law and unequal resources give more justice to wealthy

• desire to assures fait means may lead to unjust ends

Inquisitorial

• fairness suffers when duty to the court overrides individual rights and privacy

• lack of rules of evidence give too much discretion to judges; they may be prone to biases

• investigative work is left to government

• the judge has too much power

• trials become ‘showcases’, process is too efficient to be fair

• huge percentage found guilty

• excess discretion and governmental control

• desire to assure just ends my deny fair means

The Adversarial System Summary

• criticized for promoting a competitive atmosphere that can distort the truth

• jurors have to choose between two versions of the truth, both of which are inaccurate and incomplete

• however, participants feel they’ve been treated fairly

Equality

• the same consequences and treatment for all people who commit the same crime

Discretion

the use of judgments about the circumstances of certain offenses that lead to appropriate variations in how the system responds to those offenses

sentencing disparity

the tendency for judges to administer a variety of penalties for the same crime

• sentencing decisions and race

• capital punishment

• mandatory minimums and crime types

principle of proportionality

the punishment should be consistently related to the magnitude of the offense

discretion as judgment

• opposite of routine

• brings knowledge, skill and insight to bear in unpredictable ways

• adapting rules to local circumstances

discretion as choice

• making personal contributions or judgement calls

• following your conscious

discretion as discernment

• not just about making “safe” choices

• making good virtuous choices

• tolerance, empathy

discretion as liberty

• permission to act as a free and equal agent

discretion as license

• the opposite of standard expectations

• privilege to go against the rules

discretion is NOT doing as you please

bounded by norms

police

“the governmental department, bureau, or agency of a city, township, county, or nation-state charged with the responsibilities of maintaining public order, preserving the peace, providing emergency services, preventing crime, detecting criminal activity, and enforcing the criminal law”

Lae Enforcement Agencies

• 730,000 employees working at local police agencies,

• 420,000 sworn officers

  • 54,000/36,000 NYPD

  • 2.1 per 1000 residents - Average for municipal/township police

• 120,000 federal officers working at 34 Federal agencies

5 (informal) types of Public Law Enforcement Systems

• federal government

• state police and criminal investigation agencies of the 50 States

• Sheriffs in more than 3000 counties

• city Police officers

• Village/Boroughs/ Town police officers

private police/security

expenditures almost triple that of public police

most police departments are characterized by a formal and highly complex division of labor

• military-like organization

• reliance on rules and regulations

• built on a subordinating chain of command

• functional divisions follow the kinds of activities they handle

• high degree of cohesions and solidarity

• authoritarian character

police officers cannot do their jobs without some discretion

• every statute cannot and should not be enforced

• skill that allows for peace keeping

• results in undesirable outcomes (bias in enforcement)

use of police discretion:

• Decision not to arrest

  • police believe the community wants lenient or lax enforcement

  • police believe other duties are more urgent or important

  • not arresting may serve another need

• alternative uses of arrest

  • e.g., crowd control, demonstrations

What influecnes whether a police officer is likely to exercise discretion?

• offender variables

• situation variables

• system variables

offender variables

Adults vs. juveniles, race, gender, mental health

situational variables

criminal vs. other matters, presence of weapons, types of property, initiator, other present

system variables

court availability, quotas, community resources

where are the boundaries of police discretion?

• regulated by norms, tension between equality and discretion

• African Americans are 4 times more likely than Whites to experience use of force in police encounters

  • Black Lives Matter

  • Science based policy

Policing Styles

Watchman, legalistic, and service styles

• elements of all three can be found in any agency

  • ideal types

• overall, emphasis tends to be on one style

Watchman Style

• emphasizes responsibility for maintaining public order

• peace officer

  • great amount of discretion

  • handles many violations informally

• often characterized by corruption, under enforcement, and low arrest rates

• largest amount of discretion used

Legalistic Style

• opposite of Watchman Style — least amount of discretion

• treats all situations as if they were serious infractions of the law

• high rate of traffic tickets, arrests, etc.

• technically efficient

• complaints of harassment and police brutality

Service Style

• combination of law enforcement and maintence of order

• emphasizes community relations

• fewer arrests for minor infractions

• may include a community policing element

  • focuses attention on the problems that lie behind the incidents rather than just the incidents

• moderate amount of discretion used

plea bargaining

negotiations between the prosecutor and defendants lawyer; may involve ‘trading’ with the defendant for admission of a lesser crime

• <10% of cases that are filed go to trial

Why plea bargain?

caseloads, case strength, desire for a more lenient sentence, efficiency, trial penalty

criticisms of plea bargaining

• plea bargaining is a “cheap” conviction

• criminal justice is becoming administrative vs. adversarial

• false guilty pleas are a problem

  • estimates range from 5%-11% of pleas

why would someone falsely plead guilty?

• shadow of a trial

  • probability of convictions trial penalty-plea penalty

• immediacy of consequences, lack of knowledge of collateral consequences, defer to attorney advice

special cases

• hate crimes

  • must start at the policing level and be supported through prosecution

• juvenile vs. adult court

voir dire

• lawyers from opposing sides excersie challenges against the inclusion of certain jurors until a petit jury composed of persons satisfactory to both sides is formed

• really a process of excluding jurors rahter than selcting them

  • challenges for cause

  • peremptory challenges

  • other exclusions

the law forbids exclusion of jurrors based on membership in a cognizable group

Flowers v. Mississippi (2019)