CJ Module 5

Booking

Fingerprinted and photographed

Prosecutor is sent an offense report. 

Note in Louisiana, DA’s have 60 days from arrest to accept or refuse a felony case if the defendant is in custody. 

Initial Appearance: 

Defendant is advised of rights

Probable Cause for arrest is determined

Bail is set

Attorney usually not present. 

Preliminary Hearing: 

Probable cause for the matter to go to trial. 

Additional evidence is given. 

Defendant may waive this hearing. 

Grand Jury: 

Half of all states use this

The prosecutors put forth a case, let's the jury decide whether there is Probable Cause or not. 

Prosecutors may bring in witnesses to testify. 

Defendant is not present. 

Votes True bill or No true bill. 

True bill results in indictment.

Arraignment: 

Defendant enters a formal plea of guilty, not guilty, or no contest. 

No contest is pleading guilty for the purpose of avoiding trial, but cannot be held civilly liable. Not admitting guilt. 

If not guilty, the matter will go to trial. 

Will likely plead not guilty for the purpose of negotiating a plea deal. 

Discovery:

 Is when both the defense and the prosecution “lay out their cards.”

They both exchange information about their cases to prevent major surprises or bombshells midway through the trial. 

NOTE: Approximately 90 percent of criminal cases do not proceed to trial. These cases are settled through plea arrangements. Defendants in these cases will plead guilty or no-contest with the hope of receiving a lesser punishment.

What is Bail? 

is the process of releasing a defendant from jail or other governmental custody with conditions set to provide reasonable assurance of court appearance or public safety. (Schnacke).

NOTE Most people do it with money; you get arrested, you pay. We also tend to use bail and bond interchangeably. 

Money Bail:

is when a defendant is required to pay a deposit to the court, to ensure their return.

Bond:

describes an obligation or a promise

Bail Bond:

 is used to describe the agreement between a defendant and the court.

No right to bail in the US constitution

The constitution does not afford the right to bail, it does prevent excessive bail in the 8th amendment. 

8th amendment: 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 

What does excessive bail mean? 

refers to a bail amount that is higher than what is reasonably necessary to ensure the defendant appears in court and does not pose a danger to the public.

Right to Bail States: 

Some states, including Louisiana, are called right to bail states. Their state constitution grants everyone the right to bail. 

In the right to bail states, most people are bailable except for some limited exceptions. 

In cases where a judge may want to keep someone detained, the judge will normally set a bail amount he/she believes the defendant cannot reasonably afford. ($1,000,000 bond)

Release on Recognizance (ROR) —

Requires the defendant only to agree to appear at a later date

Unsecured Bonds —

Written agreement to be liable for a fixed financial payment, similar to a promissory note.

Secured Bonds —

Defendant must satisfy a financial condition paid to the court either directly, through a bail bondsman, or other collateral such as real property, in order to secure release (Commercial bond).

The most common form of pretrial release in the US is through what?

Secured Bonds. The average secured bonds amount is $10k.

Nearly 90% of defendants with a bail of $1,000 or less could not pay

Secured bonds are refundable after the case is disposed of, although fines and fees are normally deducted from this amount.

However, the average defendant cannot pay the average amount and must instead rely on a commercial bail bond.                    

No Bail (preventive  detention) —

Defendant is to be held pending trial.

What influences Judge’s Pretrial Decisions? The two biggest questions a judge must consider when deciding whether to release someone, set money bail, or detain someone are:

Does this person pose a risk to public safety?

Does this person pose a risk of flight?

Most judges also consider the following (along with their gut instinct) when determining how someone will be released:

Charge

Historical factors (crime and past instances of failing to appear)

Stability (employment, local residence)

Risk score (in some jurisdictions)

Commercial bail bonds allow pretrial defendants to only pay a percentage of the total amount to be release

This percentage typically ranges between 10 and 12 percent.

This percentage paid is called a bond premium. However, there is a big catch: the money paid for a bail bond premium is non-refundable. So even if a charge is refused or dismissed, or if a defendant is found not guilty, he/she must still pay for the bail bond.

If someone fails to return to court, the bail bonds agency is responsible for paying the full amount of the defendant’s bail amount. Therefore, they may hire “bounty hunters”, agents who will attempt to find and return them to the jurisdiction of the court.

Note that there are only two countries in the world that allow commercial bail bonds: The US and the Philippines.

Issues with Money Bail: Unequal Treatment: 

The greatest issue with bail is that it creates an unequal system of pretrial release based on wealth. For example, a person may be arrested for shoplifting and remain detained until their sentence because they can’t afford money bail, while a wealthier defendant with a much more serious charge may be released because they can afford bail.

 Also reliance on wealth alone does not factor in a person’s likelihood of being rearrested while awaiting trial.

Issues with Money Bail: Leads to high rates of pretrial detention: 

Nine out of 10 people detained pretrial are there because they can’t pay bail.

Almost half a million people are sitting in jail because they are unable to pay bail.

Issues with Money Bail: Impact of the three days in jail: 

Just three days in jail could cause an immense burden to a person’s life, employment, relationships, etc.

Even three days in jail can result in loss of wages, jobs, housing, and family connections, leaving lower risk defendants 40% more likely to commit future crime.

Issues with Money Bail: Cost of paying money bail impacts the family:

Paying for a bond also places a financial burden on family members, as they will likely be responsible for paying the defendant’s bond.

Issues with Money Bail: Creates a financial incentive for courts:

The courts, DA, Sheriff’s Office, and even the Public Defender all receive a percentage of secured bail bonds.

The argument is that it creates an incentive for judges to assess high money bail amounts to increase their own funding.

Jury Summons:

When you are over 18, you may receive a summons to appear for jury duty.

Jury duty is compulsory, meaning if you receive a summons you have to report.

Voir Dire: 

Means to speak the truth.

Once a jury pool is formed, a smaller number of jurors will be selected through a process called Voir dire

The defense and prosecution question and screen potential jurors to ensure they are fair and impartial, which is called “for cause.”

For cause just means that the juror may be prejudiced against the other side.

Examples of Voir Dire?

The prosecution and defense are given a limited number of peremptory challenges that allow them to strike jurors off for no reason at all.

Final Jury Pool and Unanimous Jury

Generally, 12 jurors and 2 alternates will be selected.

In most states, convictions require a unanimous jury. Any less would result in a hung jury.  If the hung jury persists, the judge may call a mistrial. A mistrial does not mean the defendant is not guilty; in most cases the defendant will be retried.

Trial Competency and the Insanity Defense: 

There is a persistent myth that defendants routinely avoid justice by pretending to be insane. 

The truth is that the insanity defense is used in less than one percent of all felony cases. 

And when used, just a fraction of those cases are actually successful. 

The burden of this defense is extremely high. They must prove that they were insane at the time of the offense. 

It is more common for defendant's to be deemed unfit to stand trial. 

A person can be deemed unfit to stand trial and still be considered sane while they committed their crime. 

When a person isn't competent to stand trial, this does not mean that they will be released or be acquitted. 

It just means that the trial will be delayed until the defendant is deemed competent. 

In these cases, the defendant will likely be placed in psychiatric care until they are deemed "fit to stand trial."

Opening Statements: 

Prosecutor always goes first, followed by the defense

They do not argue against one another at this stage

They lay out their case and outline their facts.

Prosecution's Case 

The prosecution presents its evidence and witnesses.

The defense will cross-examine the prosecution’s witnesses.

Once the prosecution has finished, they will rest their case.

Motion to Dismiss: 

As a formality, the defense will make a motion to dismiss all charges as the prosecution didn’t make their case.

In most cases, the judge refuses. Then the defense presents their case.

Defense Case: 

Presents its main cases by examining its own witnesses.

Prosecution can cross-examine

The defense does not have to present a case, since they are innocent into proven guilty. They can simply rest their case.

Prosecution Rebuttal

May offer evidence to counter the arguments of the defense.

Closing Arguments

The summary of the case

The prosecution offers reason why evidence prove defendant's guilt

The defense explains why the defendant should be acquitted.

Jury Instructions

The judge explains the applicable laws and possible verdicts.

Jury Deliberations and Verdict: 

The jury will deliberate as long as it takes to reach a verdict.

Can acquit on some charges, convict on others

If acquitted on all charges, the defendant is free to go

Post-trial Motions

If the jury delivers a guilty verdict, the defense will ask the judge to override the jury and acquit. It’s almost always denied.

Sentencing

The judge may order a presentence investigation to help decide sentencing.

The judge will also be limited by sentencing guidelines (a maximum and sometimes minimum sentence.)

Punishments

Incarceration

Probation

Fines

Restitution

Community Service

What influences Sentencing?

Criminal Code, Presentence Reports, and Sentencing arguments

Criminal Code

Defines minimum and maximum punishments

What’s in a PSR: Presentence Report

PSRs consist of prior arrests, convictions, as well as interviews with victims.

Prior performance on probation or during incarceration may also be included.

PSRs may include a sentence recommendation. Judges follow these recommendations 90 percent of the time.

A defendant’s sentence recommendation may be informed by their risk of rearrest (recidivism) or violence, which is determined by a risk assessment instrument.

Aggravating Circumstances:

Use of weapon, against the elderly or young, offense against a police officer/veteran.

Usually provided by the prosecution with the aim of increasing a sentence.

Prosecutors may point towards the defendant’s criminal history, lack of remorse, etc.

Mitigating Circumstances

Little to no criminal history, defendant’s duress, age at offense, mental state

Defense can also call supportive witnesses to mitigate sentence

Victim Impact Statements

Provided at sentencing hearings and parole hearings by victim

Inform the court of the financial, emotional, psychological, and or/physical impact on life.

Can be verbal, written, or even child drawings.

Maybe victims or family members.

Sentencing Goals: Rehabilitation

The focus here is on reducing a person's criminal behavior by helping them. Ex. Drug Treatment, mental healthcare, anger management, etc.

Sentencing Goals: Incapacitation

The goal of incapacitation is to prevent further crimes by removing the offender from society or limiting his/her opportunities to commit more crime.

Examples: House arrest, intensive probation monitoring, custody.

Works from logic that if they are behind bars, they can’t affect public safety.

Sentencing Goals: Retribution

The focus is here having a person "pay for their crimes." The principal of "an eye for an eye" applies. 

Also having defendant's pay for their damages through restitution falls under this goal. 

Sentencing Goals:  Deterrence

Deterrence is essentially scaring a person enough that they don't commit future crimes. This could come from a harsh sentence to "teach them a lesson," or a harsh sentence to teach others a lesson. There are two main types of deterrence that courts use:

General Deterrence:

Punishment that seeks to deter others from committing a crime.

Specific Deterrence:

Punishment that seeks to deter the sentenced individual from committing future crimes. Example: Speeding tickets.

Appeals:

The defendant may appeal and challenge outcome.

Five reasons for appeal

Legal errors

Juror misconduct

Ineffective counsel

Lack of sufficient evidence

(Death penalty cases are automatically appealed.)

Emerging Technologies: 

Digital Recording

Use of tablets and apps to present evidence

Annotation Monitors

Evidence cameras

Conducting hearings via videoconferencing 

Length of Delay:

A delay of a year or more from the date of arrest or indictment, whichever occurs first, was termed “presumptively prejudicial”; however, as noted earlier, the Supreme Court has never explicitly ruled that any absolute time limit applies. 

Reason for Delay:

The prosecution may not excessively delay the trial for its own advantage; however, a trial may be delayed for a good reason, such as to secure the presence of a key witness. 

Time and Manner in which the defendant has asserted his right:

If a defendant agrees to a delay when it works in his own benefit, he cannot later claim that he has been unduly delayed. 

Degree of Prejudice to the Defendant that delay has caused:

Delays can affect evidence and impair the defense; for example, witnesses might die, move away, or their memories fade; records or evidence can be lost or destroyed. 

Adversarial System:

A legal system wherein there is a contest between two opposing sides, with a judge land (and possibly a jury) sitting as an impartial arbiter, seeking truth. 

Arraignment:

a criminal court proceeding during which a formally charged defendant is informed of the charges and asked to enter a plea of guilty or not guilty. 

Bail:

Surety provided by a defendant to guarantee their return to court to answer criminal charges. 

Booking:

the clerical procedure that occurs after an arrestee is taken to jail, during which a record is made of their name, address, charges, arresting officers, and time and place of the arrest. 

Causation:

A link between one's act and the injurious crime or act , such as one tossing a match in the forest and igniting a deadly fire. 

Circuit Courts:

originally courts wherein judges traveled a circuit to hear appeals; now, courts with several counties or districts in their jurisdiction; the federal court system contains 11 circuit courts of appeals [plus the District of Columbia and territories], which hear appeals from district courts. 

Court of last resort:

the last court that may hear a case at the state or federal level. 

Delay:

an attempt (usually by the defense counsel) to have a criminal trial continued until a later date. 

Discovery:

a procedure wherein both the prosecution and the defense exchange information as to witnesses to be used, results of tests, recorded statements by defendants, or psychiatric reports, so that there are no major surprises at trial. 

District Courts:

trial courts at the count, state, or federal level with general and original jurisdiction. 

Diversion Program:

a sentencing alternative that removes a case from the criminal justice system, typically to move a defendant into another treatment program or modality. 

Dual-court System:

the state and federal court systems of the United States. 

Eighth Amendment:

in the Bill of Rights, it contains the protection against excessive bails and fines, as well as cruel and unusual punishment. 

Federal Court System:

the four-tiered federal system that includes the Supreme Court, circuit courts of appeal, district courts, and magistrate courts. 

Affirmative Defense:

the response to a criminal charge in which the defendant admits to committing the act charged but argues that for some mitigating reason they should not be held criminally responsible under the law. 

Courtroom Work Group:

the criminal justice professionals who work together to move cases through the court system. 

Defense:

the response by a defendant to a criminal charge, to include denial of the criminal allegations in an attempt to negate or overcome charges. 

Defense Attorney:

one whose responsibility it is to see that the rights of the accused are upheld prior to, during,and after trial; the Sixth amendment provides for “effective” counsel, among other constitutionally enumerated rights that defense attorneys must see are upheld. 

Double Jeopardy:

the prosecution of an accused person twice for the same offense; prohibited by the Fifth amendment except under certain circumstances. 

Entrapment:

police tactics that unduly encourage or induce an individual to commit a crime they typically would not commit. 

Judicial Misconduct:

inappropriate behavior by a judge 

Judicial Selection:

means by which judges are selected for the bench, include election, a nominating commission, or a hybrid of these methods. 

Merit Selection:

a means of selecting judges whereby names of interested candidates are considered by a committee and recommendations are then made to the governor, who makes the appointment; known as the Missouri Plan. 

Prosecuting attorney:

one who brings prosecutions, representing the people of the jurisdiction. 

Public defender:

an attorney whose full time job is to represent indigent defendants. 

Right-wrong test:

the test of legal insanity, asking whether the defendant understood the nature and quality of their act, and if so, did they think it was wrong.