Exam #2

Dispute Resolution

The process of addressing and settling disagreements or conflicts between individuals or groups.

Disputes

may be resolved informally, through alternative methods, or through the courts.

Parties

Plaintiff

Defendant

Plaintiff

The person or party who brings a lawsuit.

Defendant

The person or party being sued or accused in a legal proceeding.

Stages of Dispute Resolution

Grievance or pre-conflict stage (naming)

Conflict stage (blaming)

Dispute stage (claiming)

Dispute resolution

Grievance or pre-conflict stage (naming):

A person recognizes that they have been harmed or treated unfairly.

Conflict stage (blaming):

The person identifies who or what they believe caused the harm.

Dispute stage (claiming):

The person confronts the responsible party and asks for a remedy or compensation.

Dispute resolution (stage):

The parties attempt to settle the disagreement through negotiation, mediation, arbitration, adjudication, or another response.

Responses to Dispute Resolution

Lumping

Avoidance

Coercion

Revenge

Lumping:

Choosing not to pursue a complaint and simply accepting or living with the harm.

Avoidance:

Avoiding the conflict or the person responsible rather than pursuing a remedy.

Coercion:

Using force or threats to make another person comply.

Revenge:

Taking matters into one's own hands to retaliate against the person believed to have caused the harm.

Methods of Dispute Resolution

Negotiation

Mediation

Arbitration

Adjudication

Negotiation:

The parties communicate directly and try to reach an agreement or find common ground.

Mediation:

A neutral third party helps the parties communicate and reach a voluntary agreement. The mediator does not impose the decision.

Arbitration:

A third party hears both sides and makes a decision. Arbitration may be binding (the parties must follow the decision) or nonbinding (the decision is not necessarily final).

Adjudication:

A judge or court resolves a dispute by applying the law and issuing a legal decision.

Preconditions for Adjudication

Justiciable

Social structure

Legal culture

Nature of relationships between individuals

Multiplex relationships

Simplex relationships

Justiciable:

A dispute that is appropriate for a court to resolve. Courts generally require a real legal issue that they have authority to decide.

Social structure:

The organization of society and its relationships, including social hierarchy, community ties, and power differences, affects how people handle disputes.

Legal culture:

Shared beliefs, attitudes, and expectations about law and whether using the legal system is acceptable or appropriate.

Nature of relationships between individuals:

The relationship between the parties can influence whether they confront each other, avoid conflict, negotiate, or go to court.

Multiplex relationships:

Relationships in which people are connected in several ways at once, such as being neighbors, relatives, and coworkers. People may avoid lawsuits because they want to preserve the relationship.

Simplex relationships:

Relationships involving one primary connection or purpose, such as a single business transaction. There may be fewer social ties to protect, making formal legal action easier to pursue.

Reasons for not pursuing a resolution to a dispute

Culture

Social influences

Economic and legal costs

Time required to pursue adjudication

Other reasons

Culture:

Cultural beliefs may discourage confrontation or lawsuits and favor informal solutions.

Social influences:

Family, friends, community expectations, and fear of retaliation may discourage someone from pursuing a claim.

Economic and legal costs:

Lawyers, court fees, and other expenses can make legal action unaffordable.

Time required to pursue adjudication:

Court cases can take months or years and require repeated appearances, paperwork, and effort.

Other reasons for not pursuing a resolution to a dispute:

A person may fear damaging relationships, believe the case will not succeed, distrust the legal system, or decide that the potential remedy is not worth the effort.

others view them as confrontational or harmful to community relationships.

Some communities view lawsuits as necessary to protect individual rights, while

avoid suing to preserve relationships.

People with strong, long-term community ties may

rely on courts when they lack community connections or believe informal methods will not treat them fairly.

Newcomers or outsiders may

Social status and power

can affect who feels able to challenge another person or organization through the legal system.

Legal consciousness:

People's attitudes and beliefs about law and the legal system, and how those beliefs affect their willingness and ability to use legal remedies.

Procedural justice:

The belief that a decision is fair because the process was fair. People want to be heard, treated respectfully, and judged by a neutral decision-maker.

face greater obstacles to obtaining justice because of limited money, time, legal knowledge, and access to attorneys.

Working-class Americans may

Three types of legal consciousness identified by Ewick and Silbey:

Before the law

With the law

Against the law

Before the law:

The law is viewed as a respected, objective, and separate authority. People expect it to operate according to formal rules.

With the law:

The law is viewed as a game whose rules can be used strategically by people who understand the system.

Against the law:

People view the legal system as powerful or unfair and may resist, work around, or avoid its rules.

ADR methods:

Arbitration, Mediation, Negotiated rulemaking, Neutral fact-finding & Mini-trials

Alternative dispute resolution (ADR):

Methods of resolving disputes outside the traditional court process. ADR may be faster, less expensive, more flexible, and less formal than a trial.

Arbitration:

A neutral third party hears both sides and issues a decision. It can be binding or nonbinding.

Mediation:

A neutral mediator helps the parties communicate and reach their own agreement. The mediator does not decide who wins.

Negotiated rulemaking:

Government agencies involve affected groups and stakeholders in negotiating proposed rules before they are formally adopted.

Neutral fact-finding:

An impartial third party investigates or evaluates the facts of a disagreement and provides findings that can help the parties reach a settlement.

Mini-trials:

A simplified presentation of each side's case to representatives of the disputing parties, often with a neutral adviser. The representatives then try to negotiate a settlement.

Advantages of ADR:

Often faster and less expensive than litigation.

Can be less formal and more flexible.

May preserve relationships and encourage cooperation.

Allows parties to participate more directly in finding a solution.

Disadvantages of ADR:

A party with more money or power may have an advantage.

Arbitration can limit opportunities to appeal a decision.

Mediation may fail if the parties cannot agree.

ADR may provide less public accountability or fewer legal protections than a court proceeding.

Models of Criminal Justice

Adversarial model

Consensus model

Crime control model:

Due process model

Adversarial model:

The prosecution and defense present opposing arguments and evidence before a neutral judge or jury. Each side is responsible for presenting its case.

Consensus model:

The view that criminal justice officials share common goals and cooperate to maintain social order and resolve cases. In practice, this cooperation can sometimes prioritize efficiency over defendants’ individual rights.

Crime control model:

Emphasizes controlling crime, enforcing laws, processing cases quickly, and convicting guilty people. It values efficiency and public safety.

Due process model:

Emphasizes protecting individual rights, preventing wrongful convictions, and ensuring fair procedures. It accepts that cases may take longer to protect defendants.

Defense Attorneys

Defense attorneys represent people accused of crimes, protect their constitutional rights, challenge the prosecution's evidence, and ensure that the government follows proper legal procedures.

Strickland v. Washington (1984):

The Supreme Court established a two-part test for claims that a defense attorney provided ineffective assistance:

1. Deficient performance: The attorney's performance fell below an objective standard of reasonable professional competence.

2. Prejudice: There is a reasonable probability that, without the attorney's errors, the outcome would have been different.

Deficient performance:

The attorney's performance fell below an objective standard of reasonable professional competence.

Prejudice:

There is a reasonable probability that, without the attorney's errors, the outcome would have been different.

Justification of Public Attorneys’ Defense of Criminal defendants: why do they do what they do?

Garbage collector

Constitutionalist

Civil libertarian

Legal positivist

Philosopher

Oddsmaker

Political activist

Social worker

Humanitarian

Egoist

Garbage collector:

Defense attorneys do the difficult or unpopular work of ensuring that police and prosecutors follow the law and do not abuse their power.

Constitutionalist:

Defendants have a constitutional right to legal counsel under the Sixth Amendment.

Civil libertarian:

Protecting the rights of accused people protects the constitutional freedoms of everyone.

Legal positivist:

The attorney does not decide guilt or innocence; the judge or jury determines whether the prosecution has proved the case.

Philosopher:

Being factually or morally responsible is different from being legally guilty. Legal guilt must be established according to the law and the beyond-a-reasonable-doubt standard.

Oddsmaker:

The risk of convicting an innocent person is so serious that it may be preferable for some guilty people to go free rather than convict an innocent person.

Political activist:

Defending disadvantaged people can challenge inequality and prevent the criminal system from unfairly harming people who already have fewer resources.

Social worker:

A caring attorney can support a defendant and help them pursue rehabilitation and reintegration into society.

Humanitarian:

Lawyers should help people in need, regardless of whether the public approves of their clients.

Egoist:

Criminal defense can be personally interesting or professionally rewarding.

Indigent defendant:

A person who cannot afford to hire an attorney.

Gideon v. Wainwright (1963):

The Supreme Court held that states must provide an attorney to defendants who cannot afford one in felony criminal cases. The Sixth Amendment right to counsel applies to the states through the Fourteenth Amendment.

The right to a lawyer should not depend on a person's ability to pay. Legal representation is essential to a fair criminal trial.

What is the importance of Gideon v. Wainwright?

Three major systems in defending indigent defendants

Assigned counsel

Contract attorneys

Public defenders

Assigned counsel:

A court appoints a private attorney to represent a defendant who cannot afford one. The attorney is typically paid by the government.

Contract attorneys:

The government contracts with private lawyers or a law firm to represent eligible defendants, often for an agreed-upon fee.

Public defenders:

Government-funded attorneys who work in an office specifically established to represent defendants who cannot afford private counsel.

Prosecutors:

represent the government in criminal cases. They decide whether to bring charges, present evidence, negotiate plea agreements, and attempt to prove guilt beyond a reasonable doubt. They are expected to seek justice, not simply convictions.

Prosecutorial discretion:

The authority to decide whether and how to prosecute a case, including which charges to bring and whether to offer a plea agreement. These decisions are influenced by evidence, offense seriousness, office policies, resources, and public priorities.

The Brady Rule:

Under Brady v. Maryland (1963), prosecutors must disclose material exculpatory evidence—that is, evidence favorable to the defense that is material to guilt or punishment. Withholding material evidence can violate due process and may result in a conviction being overturned.

Three primary explanations for whether a prosecutor will pursue a case

Strength of the evidence

Seriousness of the offense

Credibility of the victim and witnesses

Strength of the evidence:

The number and reliability of eyewitnesses, fingerprints, DNA, and other evidence linking the defendant to the crime.

Seriousness of the offense:

More serious crimes may receive greater prosecutorial attention and resources.

Credibility of the victim and witnesses:

Prosecutors consider whether witnesses are believable, consistent, and likely to testify effectively.

A grand jury

is a group of citizens who review evidence presented by prosecutors to determine whether there is sufficient basis to issue an indictment charging someone with a crime

Their main purpose is to act as a preliminary check on prosecutorial power by deciding whether formal charges should proceed. A grand jury does not determine guilt or innocence at trial.

What is the purpose of a grand jury?

Features of the Grand Jury

Legal representation

Testimony

Prosecutor

Proceedings

Evidence

Double jeopardy

Legal representation

The target or witness generally does not have a defense attorney present inside the grand jury room. A witness may consult an attorney outside the room. A person who has been indicted will have counsel for subsequent proceedings.

Testimony:

Witnesses may be called to answer questions under oath.

Prosecutor:

The prosecutor presents evidence and guides the proceedings.

Proceedings:

Grand jury proceedings are generally secret, protecting the investigation and those involved.

Evidence:

The grand jury hears evidence selected and presented by the prosecutor. The defendant usually does not present a competing case in the room.

Double jeopardy:

The Fifth Amendment's Double Jeopardy Clause generally does not prevent a later trial simply because a grand jury declines to indict or an indictment is dismissed. Double jeopardy protections typically attach when a jury is sworn in a jury trial or, in a bench trial, when the first witness is sworn.

the person has been proven guilty.

An indictment means the grand jury found sufficient grounds to charge someone; it does not mean

Pretrial Criminal Process

Arrest

Charging Decision

Initial Appearance

Bail

Grand Jury

Indictment

Arraignment

Discovery Exculpatory

Pretrial Motions

Arrest:

The suspect is seized based on probable cause.

Charging Decision:

The prosecutor charges the suspect with a crime.