JUST102

What is a trial?

a formal examination of evidence before a judge, and typically before a jury, to decide guilt or innocence in a criminal proceeding.

Who are 2 people who are a very important part of a trial but NOTZ considered a professional courtroom actor?

The defendant and the victim

How are Federal Judges appointed? (MPC)

All Federal Judges (constitutional judges) are appointed by the President of the U.S. for life terms

How are judges selected?

N.J. Supreme Court Justices and Superior Court Judges:

1. The Governor nominates a person to be a justice or a judge.

2. The Governor then submits the nomination to the Senate, which then votes to confirm the nominee.

3. If confirmed by the Senate, the judge is sworn in for an initial term of 7 years.

Reappointmrnt of judges

After 7 years, judges and justices can be reappointed. Again, the Governor submits a nomination to the Senate, which votes to confirm or deny. If reappointed, have tenure, and may remain until age 70, when the NJ Constitution requires that they retire.

The role of the prosecutor (MPC)

The Prosecutor is an attorney whose official duty is to conduct criminal proceedings on behalf of the State and the people against those accused of having committed offenses.

The role of the Defense Attorney

• The job is to exonerate the defendant and mitigate punishment

• Job is to negotiate the best plea deal possible

• The job is to ensure that the defendant’s rights are not violated

In what type of case does the defendant have a 6th Amendment constitutional right to be represented by competent counsel/Attorney ***MPC***

Criminal Case

What is a Subpoena? (MPC)

a written order issued by the courts for an individual to appear in court and give testimony.

In a criminal case the verdict must be what?

Unanimous

Evidence comes in 3 basic forms (MPC) :

1. Testimonial: Oral testimony by a sworn witness

2. TANGIBLE: Physical evidence (gun, drugs, diagram) (MPC)

3. Judicial Notice: those matters that are common knowledge and can be verified by a reliable source

What is a Plea Bargin?

An agreement between the prosecutor and the defendant in which the defendant enters a guilty plea with the expectation of receiving some consideration from the State.

(MPC) After a criminal case is indicted what happens to most cases?

96% are resolved without a trial and by plea

14 steps of the criminal trial (2 mpc)

1. Pre-trial Motions.

2. Jury Selection.

3. Opening Statements.

4. Prosecutor’s Presentation of Evidence.

5. Cross-Examination.

6. Re-Direct and Re-Cross-Examination

7. State Rests

8. Motion for a Directed Verdict.

9. Defendant’s Presentation

10. Summations/Closing Arguments.

11. Charge to the Jury.

12. Jury Deliberations.

13. The Verdict.

14. Sentencing.

Step 1: Pre-trial Motion

Before the jury is selected, both the prosecutor and the defense can make any pre-trial motions. Examples: Motion to dismiss, Motion to Suppress, Wade Motion, Sands Motion etc.

Step 2: Jury Selection

Once the jury is satisfactory to both sides, the jury is sworn in. Sidebar: During jury selection and trial, the defense and the prosecutor will approach the bench and request a sidebar. This is usually done at the side of the bench and away from the jury. These conferences must be recorded and made part of the record.

Step 3: Opening Statements:

Before any evidence is presented, each side is allowed to address the jury in the form of an outline of the case he/she will present. The prosecutor must give an opening, the defense does not have to. The State goes first, and then the defense.

Step 4: Prosecutor’s Presentation of Evidence:

The State will present its case by witness testimony and exhibits. This is called “direct examination.” (No leading questions allowed)

Step 5: Cross- Examination

After the prosecutor has completed the direct examination of the witness, the defense can cross-examine. During cross, the defense may ask leading questions. Purpose of cross is to impeach their credibility or confuse them.

Step 6: Redirect and Re-Cross

The prosecutor may ask additional questions about any matters that have come out during cross. The defense may then re-cross.

Step 7: State Rests

At this point the prosecutor will move all items into evidence. The State’s presentation is complete.

Step 8: Motion for A Directed Verdict

At this point, the defense will ask for a directed verdict. This is done outside the presence of the jury.

Step 9: Defendant’s Presentation

Defense counsel now can present witnesses. The defendant cannot be forced to testify

Step 10: Summations/Closing Arguments

Each side presents a summary of the case he/she presented.

Step 11: Charge to the Jury

he judge now charges the jury…explains their responsibilities and the law that they must apply to the facts.

Step 12: Jury Deliberations

The jury now retires to the jury room to deliberate. During this time, no one is permitted to enter.

Step 13: Verdict (MPC)

Must be unanimous. Defendant is either found guilty, not guilty, or hung jury.

Step 14: Sentencing and Pre-Sentence Report

• Upon a guilty verdict, a pre-sentence report will be generated by probation. This report is designed to assist the judge in weighing all the circumstances of the crime, the defendants full criminal record, his family background, education, employment history etc. It will also include statements received from victims and their families. The defendant’s financial background is also included. The report will recommend prison or probation. Judges are not bound by their advice, but their insight is essential to the sentencing process.

• At sentencing, the Judge will consider both mitigating and aggravating factors. Judges will consider the degree of harm to the victim, the severity of the crime, the risk of defendant committing another crime, and most importantly the defendant’s prior record. The defendant will receive imprisonment or probation.

4th Amendment

It prohibits illegal searches and seizures

the four exceptions to the warrant requirement to search a home are:

1. Emergency applies when a police officer believes someone's life is in imminent danger. For instance, if an officer arrives at your home and hears someone screaming for help, the officer may be allowed to enter your home and search it without waiting for a warrant.

2. Plain View – this covers situations where you answer the door, and the police officer can see, in plain view, a kilo of cocaine sitting on the kitchen table just a few feet inside the house.

3. Incident to Arrest – if the police are allowed to enter the home to make a lawful arrest, a search of the area under the arrestee's immediate control may be conducted for the officer's safety.

4. Consent – without a doubt, the most used exception is consent. If you consent to a search of your home, the police do not need a warrant.

What is a Warrant? (MPC)

In criminal proceedings, a warrant is issued by a judge which directs the police to perform a legal search which protects the officer who executes it.

2 Types of Warrants

1. Search Warrant

2. Arrest Warrant

What must a search warrant contain? (MPC)

1. It is to be signed by the Judge.

2. It must identify the property to be seized.

3. It must name or describe the person or place to be searched

4. It must specify the hours when it may be executed.

What is Probable cause?

Probable cause refers to the necessary level of belief a police officer must have before arresting an individual or searching a home, vehicle, or possessions of a suspect.

The Exclusionary Rule (The Fruit of the Poisonous Tree Doctrine)

The remedy for an unreasonable search and seizure is suppressing the evidence under a Motion to Suppress by the Exclusionary Rule.

Fruit of the Poisonous Tree Doctrine

Evidence illegally seized by the police cannot be used in a trial.

3 levels of Police Encounters

1. Field Inquiry: police approach a person on the street or other public place and converse. This requires NO threshold suspicion, as the person is free to respond or go on their way.

2. Investigative Detention: More intrusive than a field inquiry. It requires a reasonable and articulable suspicion of some violation of the law.

3. An Arrest: The most intrusive and takes a person into custody. It requires a finding of probable cause that a law has been violated and that the person violated it.

Exceptions to the Warrant Requirements

1. Search incident to Arrest

2. Stop and Frisk

3. Consent

4. Strip search/ body cavity searches

5. School exception

Exceptions to the warrant: Search incident to Arrest

The seminal U.S. Supreme Court case that deals with searches incident to arrest is Chimel v. California** (1969). ***MPC**

The Court held that the police may, after an arrest, search the “immediate physical area within easy reach of the defendant.” Three reasons are:

1. to protect the arresting officer (from weapons)

2. to prevent evidence or contraband from being destroyed and

3. to keep the defendant from escaping.

“Wing- span” is the test (where can the suspect reach?)

Exception to the warrant: Stop and Frisk

Facts: Terry and others were acting suspiciously in front of a store, police believed that they were planning on robbing the store. The officer stopped Terry and frisked him. A gun was found on Terry, and he was convicted of carrying a concealed weapon. Terry appealed.

• Holding: The Supreme Court held that a citizen may be briefly detained by police without probable cause when they have a “reasonable suspicion” to believe that the person is armed and dangerous. The officer may conduct a pat-down search of the suspect for weapons without a warrant or probable cause.

• Where an officer reasonably concludes that a person is involved in criminal activity and

• The person is armed and presently dangerous.

• The officer may protect themselves and others in the area by conducting a limited search of the outer clothing of the person to search for weapons which might injure him/her.

Exceptions to the warrant: Consent

A police officer must have a reasonable suspicion that you or your passenger are engaged in criminal activity before asking a motorist to search their vehicle after a routine traffic stop for a motor vehicle violation.

The requirements of Consent are:

1. Must be voluntarily given

2. The person must be told that they have a right to refuse

3. the person has the right to be present while the search is being conducted

4. the right to stop the search at any time and

5. must be written and signed by the person and police officer (maybe in the officer’s report)

6. must specify the areas to be searched. (Example: the trunk of a car)

Exceptions to the warrant: Strip Search/ Body cavity search

• A strip search is a humiliating, degrading and embarrassing experience. It is the MOST LIMITED exception to the warrant requirement!

• “Strip” searches of convicts in prison, including the search of body cavities, have been permissible.

• U.S. v. Montoya de Hernandez (1985) Supreme Court case focused on the issue of “Alimentary canal smuggling”, in which an offender will swallow condoms filled with cocaine or heroin and wait for nature to take its course to recover the substance. The Court held that the “confinement” of a suspect and the evidence expelled is permissible.

Exceptions to the warrant: School Exceptions

• There is a NO TOLERANCE Rule in schools and educational facilities. Searches conducted to further legitimate government interests are permissible.

• New Jersey v. T.L.O. (1985) allows the search of a student’s locker without a warrant.

What is not allowed in police interrogation?

• Physical Abuse: police cannot use physically coercive interrogation techniques to elicit confessions. Brown v. Mississippi (1936)

• Coercion: refers to any form of non-physical coercion, hostility, or pressure to force a confession from a suspect. Ashcraft v. Tennessee (1944)

• Psychological Manipulation: the manipulative actions by police designed to pressure suspects to divulge information, that are based on forms of trickery, intimidation, and control. Arizona v. Fulminate (1991).

The Criminal Justice system is divided into 4 components

1. Law Enforcement

2. Prosecution

3. Judiciary

4. Department of corrections

the first “criminal” jury trial in America was held in?

Plymouth, Massachusetts

first person to be convicted of murder by a jury verdict

John Billington

What are the 10 steps of the Criminal Justice System?

1. Crime

2. Arrest

3. Pre-Indictment Evaluation

4. Grand Jury Presentation

5. The Arraignment

6. Pre-Trial Hearing

7. The Trial

8. The Sentencing

9. Department of Corrections

10. Release

2 types of Due process:

1. Substantive Due Process: Requires the court to determine if a law is unreasonable when it affects a “fundamental” right

2. Procedural Due Process: requires fairness in all legal proceedings

5th amendment

protects criminal defendants from having to testify if they may incriminate themselves through the testimony “not self incriminate”

6th amendment

the right to a competent attorney (Gideon v. Wainright)

Bail reform in NJ

• age at the time of alleged offense

• whether offense was violent

• past convictions

• failures to appear in court

• other pending charges

• Does not consider race

Corpus Delicti

-The body of the crime

Includes two elements that must be proven by the State to sustain a criminal charge.

Actus Reus

Means wrongful act or deed..need to prove that a crime has been committed.

Mens Rea

-guilty mind’

The mental state, intent. the prosecutor must show that the defendant purposely committed the crime.

the 4 types of Mens Rea:

1. Knowing

2. Purposeful or intentional

3. Reckless (is activity that increases the risk of harm)

4. Negligent (conduct that falls below the acceptable standard of care) leaving a child in the tub unattended

the six due process rights:

• right to remain silent

• right to counsel

• the right to bail

• right to a speedy and public trial

• right to confront witnesses

• double jeopardy

Justification

the defendant admits to committing the act but claims it was necessary to avoid some greater evil. Defense must be supported by a type of defense that exempts the defendant’s actions were justified.

The 4 types of Justification:

• self-defense

• defense of home or property

• necessity

• consent

Excuses

claims that the actor was not legally responsible for their actions and should not be accountable under the law.

The nine types of excuses

• Duress

• Age

• mistake

• involuntary intoxication

• unconsciousness the “sleepwalking defense”

• provocation

• insanity

• diminished capacity

• incompetent to stand trial

the four types of criminal homicide

• murder

• aggravated manslaughter

• manslaughter

• death by auto

the 3 types of human trafficking

• 1. Trafficking for forced labor or domestic servitude “Labor Trafficking”

• 2. Trafficking in women for sexual exploitation” Sex Trafficking”

• 3. Trafficking for the removal of organs.

human trafficking is a _____ crime of the _____ degree

federal, first

a group or an individual who is based and operates entirely within the U.S. and force is directed at the U.S. government or population (terrorism)

Domestic Terrorism

by a group or an individual who has connection to a foreign power whose activities transcend national boundaries

International Terroism

a form of terrorism that uses high technology, especially computers and the Internet in the planning and carrying out of terrorist attacks

Cyber Terrorism

Possession of a weapon for an unlawful purpose

Any person who has in his possession any firearm with a purpose to use it against the person or property of another. Crime of the second degree, mandatory minimum term of 3 years.

Possession of a weapon for an unlawful purpose is what degree?

2nd degree with a mandatory term of 3 years

Unlawful possession of a weapon

Any person who has in his possession any handgun without first having obtained a permit to carry.

Unlawful possession of a weapon is what degree?

Crime of the third degree.

Hate Crime

A criminal offense committed against a person, property, or society that is motivated by: bias against a race, religion, disability, sexual orientation, or ethnicity.

the four categories of a Crime

1. Felony:

2. Misdemeanors

3. Treason and Espionage

4. Inchoate Offenses

Felony

1. are the serious crimes such as murder, rape, aggravated assault, robbery, burglary, and arson. A felony is punishable by death or by incarceration in a prison for at least one year.

Misdemeanors

• are the minor crimes such as shoplifting, petty theft or simple assault. An offense considered a disorderly or petty disorderly offense punishable by 1 year in a county jail.

Treason and Espionage:

• Treason is when a U.S. citizen helps a foreign government to overthrow or make war against the U.S. government or its citizens. Espionage is the gathering or transmitting of evidence to enemies of the United States.

Inchoate Offenses

An offense not yet completed but is a step toward the intended commission of an offense, “Attempt crimes.”

murder

The purposeful and knowingly killing of a human being.

murder is what degree?

First degree. 30 years to life.

Aggravated Manslaughter

Reckless and purposeful killing of a human being but not premeditated

What degree is aggravated manslaughter

First degree 10-20 years

Manslaughter

Reckless killing of a human being

What degree is manslaughter

Crime of the second degree 5-10 years

Death by auto

Reckless killing of a human being by driving a vehicle

What degree is death by auto

Crimes of the second degree 5-10 years

Felony murder

when someone is killed in the commission of a dangerous or enumerated crime, the offender, and the offender's accomplices or co-conspirators, may be found guilty of murder.

A felony murder is what degree?

First degree

Aggravated Sexual Assault: 

he penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration of a sex organ without the consent of the victim.

What degree is Aggravated Sexual Assault

first degree 10- 20 years

Sexual Assault

An act of penetration with a victim at least 13 but less than 16 and actor is at least 4 years older and the victim does not sustain personal injury

Sexual Assault degree

Second Degree crime 5-10 years

Sexual Contact

intentional touching of the victim. third degree. 3-5 years

What degree is sexual contact

3rd degree 3-5 yrs

Lewdness:

Lewd or offensive act such as exposing oneself in public: 4th degree 0-18 months

Date rape

The unlawful forced sexual intercourse with a victim against their will that occurs within a dating relationship

What degree is date rape

first degree 10-20 yrs

Armed Robbery:

The unlawful taking or attempted taking of property that is in the possession of another by force and while armed with a weapon. 

Armed robbery is a crime of the ____ degree

first degree

Strong arm robbery:

The unlawful taking or attempted taking of property that is in the possession of another by force.