Dilemmas in Criminology (Exam 3)

Chapters 8, 9, 10

What are the kinds of “laws” (6)

Laws, Natural Law, Positivist Law, Criminal Law, Civil Law, Good Samaritan Laws

What is a Law

formal written rules of society. They control behavior through sanctions and teach us what is acceptable.

What is a natural Law

A law that is inherent in nature and not human made. Can be seen as natural order. Ex: taking an innocent life is thought of as immoral.

What is a Positivist Law

A human made law.

What is the difference between criminal and civil law

Criminal Law is more punitive and there are punishments if you breaks laws. Civil Law is based more on restitution and not focused on being punitive.

What are Good Samaritan Laws

If someone is trying to help someone and they are still harmed/killed or you accidently harm them in the process, you cannot be held responsible.

Law = ______

Social Contract. they limit our own behavior and also gives us protection

What are some justifications for law

the harm principle, preventing offensive behavior, legal paternalism, and legal moralism

What is the Harm Principle

individual has freedom to act in the way they want until they harm someone (ex. Crim Law: assault or killing / Civil Law: someone inured from fault automotive so the manufacture is held accountable.

When justifying Law, what does it mean when it is preventing offensive behavior?

Anything that falls under publicly disturbing the peace with your behavior; does not only mean it causes physical harm.

What is Legal Paternalism?

Laws where the state tries to protect people from their own behavior.

Ex. Seatbelt Laws, speed limits, alcohol consumption

What is Legal Moralism?

Protect and enforce social morals; what society deems deviant.

Ex. Laws against gambling, drug use, and porn.

What are the 3 paradigms of law?

Consensus, Conflict, & Pluralist

What is the Consensus Paradigm?

Idea most people share the same beliefs, values, and goals. Law reflect majority view.

What are the 2 forms of solidarity involved in the consensus paradigm?

Mechanical and Organic Solidarity

What is Mechanical Solidarity

Similarity amongst societies members. Involves repressive law.

Within mechanical solidarity, what is repressive law?

Control any behavior that differs from the norm.

What is Organic Solidarity?

Individuals all have different functions in society, but work as a larger whole. Involves Restitutive Law.

In Organic Solidarity, what is restitutive law?

Within our “labor” roles in society. Ex. Labor Laws & unions

Consensus Paradigm main ideas

Law is representative, social cohesion, value neutral

What is the Conflict Paradigm?

Idea that groups in society have fundamental differences and that those in power control the law.

What are the 3 parts of the Conflict Paradigm?

1. Criminal definitions are relative

2. Those who control major social institutions determine how crime is defined

3. Definition of crime is fundamentally a tool of power (Keeping rich rich and the poor poor.

Conflict Paradigm main ideas

Law is repressive, tool of the powerful, and not value-neutral

What is the Pluralist Paradigm?

Concept that there are many groups in society and that they form allegiances coalition in a dynamic exchange of power

How do laws arise from interest groups?

1. seeing things like lobbyists who push special interests

2. when something bad happens, that could have been prevented then have a following to try to push laws to be put it place. (ex. megans law or amber alerts)

3. can be seen as a combo of consensus and conflict

How does poverty affect someone’s experience with the law/trials

Affects ability to have adequate representation

how can it be problematic for defense attorneys, prosecutors, and judges to work together daily and socialize outside of these environment

by seeing each other outside of work and working with each other all the time they could talk about the cases outside the courtroom or know how each other works.

what is the perceptions of the Criminal Justice system through Bureaucratic Justice

They treat each case as one of many, they just walk through the steps. The goal is efficiency

What is the Wedding-Cake illustration

The bottom of the cake is the largest portion - which relates to how the biggest part of the system is criminal cases that are not shown on a public level, so they are not treated with as high of regards or effort. The top layers (more public and severe cases) are treated more because they are seen more.

What is a Legal Agent

• the lawyer is neither immoral or moral, but only a legal tool.

• they are not deciding if they person is good or bad, they are just representing them to the best of their ability.

• Most do not want to know if their client is guilty or not so performance is not affected

What is a special relationship b/w lawyer and client

lawyer should encourage client to not do anything unethical or immoral, but loyalty prevents lawyer from going against the client’s wishes.

Lawyer must stay loyal to what client wants or says

What is a moral agent?

lawyer is more and must adhere to their own moral code

what profession are moral agents more prevelent in

prosecutors, they tend to take a moral stance on issue.

private defenders also have a moral code since tthey chose the cases they work.

Where do the formal ethical standards for lawyers and judges come from

the American Bar Association’s model rules of professional conduct.

• all judges and lawyers have to pass the bar

Additionally there are the American Law Institute’s Restatement of the Law Governing Lawyers

Primary Theme of Ethics for Legal Professionals

Impartiality

The ABA’s Criminal Justice Standards are…

revised yearly and provide guidelines for behavior

What is job of defense attourney

ensure their clients rights are protected

• protector of due process

• provide adequate defense

Most Defense Attorney’s start out as

prosecutors

why do defense attorneys often defend someone they know is guilty

public defenders so not choose their cases

A defense attorneys responsibility is to their

client

• they act as both counselor and advocate for them because they speak for their defendant

• protect clients rights

• cannot withdraw from case (some exceptions)

reasons a defense attorney can withdraw from case

• if the legal action is for harassment purposes

• if the continued employment will result in violation of a disciplinary rule

• if they would be violating some ethical or criminal code

• discharged by client

• if a mental or physical condition renders effective counsel impossible (ex. cancer diagnosis)

What are examples of “conflict of interest” for defense attorney’s?

Codefedents, “fast-food” lawyers, Plea Bargain, and selling book or movie rights

What is a “fast food” lawyer?

they are only worried about volume and speed. They take on as many cases as possible to make more money

what is a codefendant as a conflict of interest

if defense is working for 2 of more people involved in the same case

what is a plea bargain

an exchange of a guilty plea for a reduced charge or sentence

What is zealous defense

the way one treats other attorneys and witnesses. Requires lawyers to be passionate and advocate for their client within the boundaries of the law. (badgering witnesses too hard could be outside of this)

what is a jury consultant

people who are experts as selecting juries

what is an example using death penalty, of what a jury consultant would do

they do research for a case where death penalty seems likely and try to find a jury that has views that lean against the death penalty.

how can jury consultants be unethical

not looking for a fair jury and just looking for people who would favor their client

within jury consultants, what is a survey and shadow jury?

jurors who sit in the jury and let the attorney know what they are doing right and wrong by listening to how the jury is leaning.

what is attorney-client privilege?

typically confidential info.

anything you take to your attorney cannot be repeated or forced out oof your attorney

what is something that can break attorney-client privlege

if the client has and shows physical evidence (it only remains confidential if they say they know where there is evidence)

what is a clergy

confession made to a priest

what can a defendant do if their client is lying under oath and committing perjury?

they cannot do anything. The defendant cannot call them out or tell everyone that they were lying. this would break attorney-client privilege

what could happen if a defendant breaks confidentiality

could be a suspension or loss of their bar license

who do prosecutors represent

the state; do not represent victim. client = system or society

what is the mission of a prosecutor

justice; holding someone accountable

Who has the most discretion in the court room?

prosecutors

What are some examples of discretion for a prosecutor

if they should pursue a charge, their definition of justice, decisions based off of their beliefs, law enforcement, public opinion, and victim, and how they feel about death penalty vs prison sentence

death penalty costs _ times the cost of maximum confinement

3

How can prosecutors being part-time be a conflict of interest?

they could also be practicing law as a defense attorney or privately and it effects their opinions

how can it be a conflict of interest as a prosecutor to use it as a stepping stone to politics be a conflict of interest

many people become a prosecutor because they are wanting to go into another elected role. They could be doing it to get to that higher role, and not actually care

what is asset forfeiture

legal procedure to confiscate property and money associated with organized criminal activity

can plea bargaining fit the ethical formalism perspective

no, it is essentially using people and manipulating to get a guilty admission

who has all the power with plea barganing

prosecutors, they have complete discretion if they offer a plea and what they are willing to offer. They have all the power. judges do have final say if it can go through

__% of trials are solved with plea bargaining

95%

How can media relations be an ethical issue for prosecutors

they could use media to promote their side of the case, which could expose potential jurors to the case and influence them.

the media can also skew things on their own (like editing or pov)

why do public defense attorneys typically not use expert witness

they cost a lot and they typically not afford them.

what are expert witnesses based on

sound scientific method; they should have expertise in a field (forensics, mental health, etc.) and have to be documented to have training to get their “expert” label. Whether someone can be an expert witness or not is based on if the judge deems them an expert

What is the problem of expert witnesses; and define it

halo effect; idea that people perceive the information given by the expert witness as more legitimate than it might be because they have been deemed an “expert”.

what is an issue that can occur with expert witnesses if both sides have one

each witness can have two varying opinions based on their knowledge and beliefs. might make it difficult for jury to decide what is right.

Criminalistics

the profession involved in the application of science to recognize, identify, and evaluate physical evidence in court proceedings

what kind of evidence do most people want to see when deciding if someone committed a crime

physical evidence

how can CSI and Criminalistics cause ethical issues

junk science; forensics are not always going to be fully correct, there is room for error. people sometimes take it as definite.

csi reliability in the past vs today

in the past we relied heavily on physical crime scene evidence to convict, and it might not have been as solid of evidence as thought.

today, we have improved technology a lot and it is a lot more reliable, but there is still room for error, so evidence should be taken with a grain of salt.

what is zealous prosecution

the use of jailhouse informants, which is giving informants something in exachange for information. (ex. lesser sentence, moving prisons,etc)

how can using jailhouse informants cause ethical issues

the informants could not be doing it with good in their heart. They are doing it do get something and will lie if it gets them what they want

what are judges expected to be and why are they expected to have these traits

impartial, knowledgeable, and authoritative. need to have these traits because they are essentially the supervisors of the court and they need to make sure they are in control of the room

Since judges are elected, how can this cause an ethical issue

since they are elected, they needed to have a campaign that they needed money for. This money can come from attorney’s and corporations/special interest groups. This can cause the people who gave money to have the judges have partiality towards them

ways a judge has discretion

interpretation of laws and rules, sentencing, and exclusionary rule

how do judges have discretion of laws and rules

the way the judge defines it is how they will instruct the jury of the charge. When a jury is told the charges, the judge also defines them so everyone is on the same page

what are some issues with judges having discretion for sentencing

they receive little training and just have general guidelines. their sentecing can be influenced by their own beliefs or values or if they were a prosecutor previously

exclusionary rule; Law, policy, ethics?

law: illegal evidence is inadmissible. the judge gets to decide if something is considered a harm to due process

policy: no policy, judges have their own personal policies since they do not have an office.

ethics: supported by utilitarianism and ethical formalism

what is the public perceptions of the courts/lawyers

there is little confidence in their abilities to be equal, fair, and just. The perception is not horrible, there is just the idea the judges can be biased

what is the connection between our government and lawyers?

most of our government is lawyers. Most politicians started out as lawyers. laywers are good at persuasion

what is the ABA that was formed in 1878

an organization that laid the ethical standards for attorneys and judges. It is used to also get the license to practice. each state has their own division

ehat are the major complaints for defense attorneys and misconduct

they do not communicate regularly with their clients, so this means they do not talk about things for the trial, some say witnesses are never contacted, research isnt conducted on their half, and evidence sometimes isnt asked for or used.

what is the. most cuted reason for false convictions

ineffective counsel

what is the defense attorney misconduct that can cross the line of zealous defense

using witness intimidation, bribing witnesses, and other ways of committing illegal acts to win a case.

What are the 4 types of prosecutorial misconduct

withholding exculpatory evidence, misusing pretrial publicity, using preemptory challenges to exclude jurors, and using false evidence in court

what is withholding exculpatory evidence

holding evidence that proves the person most likely did not commit the crime

how can pretrial publicity be a prosecutorial misconduct

they can misues it by tainting the jury poll and they can give a biased view

what is using preemptory challenges to exclude jurors

trying to deem a person biased so that they cannot be on the jury. there are grey areas when discrimination is coming into play

what can be a prosecutorial misconduct with using false evidence in court

the evidence is not scientifically sound and they know there are issues with it and still using it.

how can discussing cases between a prosecutor and judge outside of the courtroom be bad

their side convos can bleed into the court room and possible effect the case

how is allowing false testimony as a prosecutor show misconduct

they prosecutor has no duty to protect the client. They are required to report if they are noting any perjury on the stand.

how is allowing false evidence to be admitted as a prosecutor lead to misconduct

they have to report if they know the evidence is planted or not accurate. 50% of wrongful conviction cases the prosecutor had evidence to show the person was innocent but didnt report it

expert witnesses and prosecution misconduct

they cannot try to find someone that is telling the story that they want

what is one of the most common complaints for prosecutors

the failure to disclose evidence

what is “Brady Motion”

the request that all evidence that would likely lead to another outcome be handed over