Trial Processes

after arrest: booking

• recording of facts, mugshots, fingerprints, etc

  • Correct and thorough as possible

after arrest: Appearance before magistrate

• Within 24-48 hours of arrest

• Learn charges, protections

  • Common for the first charges be lower level just to hold the suspect, then the prosecutor elevates it to a larger level once evidence and argument is created

after arrest: Bail set by magistrate

• Limits: can’t be “excessive” – case by case basis (flight risk, danger to community, what offense was committed, how wealthy are you/family, etc.)

• On average 500K people in jail/day awaiting trial because they can’t post bail

• You get bail money back if you appear for your court dates

after arrest: release on recognizance

• Can also enter plea at this stage

• What if guilty plea? What if not guilty plea?

Grand Juries/preliminary hearings

• Probable cause for trial?

• Federal → grand jury (5th amendment guarantee)

  • It is also possible to waive this right to a jury bc it makes the process go quicker without one

• Grand juries comprised of citizens, preliminary hearings administered by magistrate/judge

• States typically use one or the other (about half use each)

Grand juries

• Why? Check on the prosecutor? Force construction of a strong legal case?

• Larger than typically jury, 16-23 members

• Sit for extended periods; 1 month - 1 year

• Hear multiple cases

• Only prosecutor presents evidence

  • Convince grand jury to bring about formal charges

• Decisions by simple majority vote (ex: indictments)

  • “True bill of indictment”

success rate of prosecutors

95%

“True bill of indictment”

Indictment if charges specifically brought from a grand jury

Preliminary Hearings

• Alternative to grand jury

  • Adopted in some states recently to replace grand juries

• Judge presides, prosecution presents case

• Defense can participate

• Judge determines probable cause

• “Bill of Information”

“Bill of Information”

 filed if judge chooses enough evidence for charges

The Arraignment

• Defendant brought before judge to respond to indictment/bill of information 

• Plea offered at this stage

• Guilty, not guilty, former jeopardy, not guilty by reason of insanity, nolo contendre

  • If not guilty plea, trial scheduled

  • If guilty plea, sentenced or future hearing scheduled

% of cases that don’t go to trial

90%

plea bargaining

• Trade guilty plea for reduced punishment

  • State benefits from lower punishments (no trial, etc)

roles of judge and parties in plea bargaining

• Judge can use their negotiator role and try to convince sides for an agreement

• Prosecution can also give opportunity for lower side of the sentence if plead guilty

__% more severe punishments if one goes to trial vs. taking a plea deal

40%

Types of Plea Bargains

• Reduction of charges

• deletion of tangent charges

• sentence bargaining

Reduction of charges

• Sentence, social stigma – can help someone after they are releases (social stigmas around certain charges vs others; ex: murder vs manslaughter)

Deletion of tangent charges

• “Vertical” or “horizontal”; repeater clauses; consolidation

  • Vertical: prosecutor can offer to drop the highest charge if willing to plead guilty to the others – prosecutor can use strategy of presenting higher charges they know they can’t get prosecuted so those are the ones dropped during plea bargaining

  • Horizontal: equal length charges (8 charges of 4 years each) the prosecutor can drop some of them (ex: 6) if they plead guilty to the remainder (goes from 32 years to 8)

  • Repeater clauses: (these are optional) charges get worse if you are a repeat offender – especially after 3 or 4; point of negotiation, even though it is their 3rd offense of the charge, won’t press the repeat offender clause which adds years (GA uses these a lot)

  • Consolidation: facing charges across multiple jurisdictions, some jurisdictions can drop charges given they will plead guilty in at least one location

Sentence bargaining

Guilty plea exchanged for request of lighter sentence

plea bargains: Constitutional and statutory limits

• Must be voluntary and understood

• No coercion, persuasion, fear, delusion

plea bargain disadvantages

• Lack of relationship between charge and sentence

• Pressure to plead guilty

• Possibility of overcharging

  • Prosecutors add charges because they know they can chip away at them in plea bargaining (mentioned above)

• Low visibility

• Circumvents roles of evidence

  • Defense never gets to make a public argument

When plea bargaining fails

• Serious disagreement between prosecution, defense

• Defendant rejection of plea bargain

• Very serious cases

  • Prosecution not willing to engage in plea bargaining because crime is too serious, want to make a statement and example by getting justice

• Cases with political goals

  • Political goals of prosecution, parties

• Local norms; effect?

  • Some states have different rates of plea bargaining, prosecution and defense in that area haven’t found effective plea bargaining yet 

Costs and Benefits of plea bargains

• Resource management, flexibility, assumption of responsibility, protection of victims

• Resources and likely effects of abolition

plea bargain suggested reforms

• Control of charges stage

• Expansion of choice representation

• Expansion of pre-trial discovery

• Abolition 

  • Alaska in 1975

    1. Banned statewide, they were able to do this because they have a light caseload. 

    2. More trials taking place than they did prior to the ban 

    3. In low population places it may be feasible to do 

  •  El Paso County (TX)

    1. About 40% of cases were going to trial, this is much more than the typical 5 to 10 %. 

  • Bronx 

    1. Prosecutors decided that they were going to eliminate plea bargaining, resulting in the Bronx having the longest wait time statewide. 

Plea bargaining: Historical roots 

1. British system - at least 1485

2. Used in US pre civil war, but limited 

3. Emerged as dominant in 1920s 

   1. Correlation with caseloads, lawyer involvement, social forces 

4. Became political issue in 1960s 

   1. Criticisms of plea bargaining 

   2. Feelings about it being inappropriately opaque, people didn't get their day in court and you lost a lot of rights you had if you didn't go to trial

   3. Racial profiling sometimes in plea bargaining

   4. Questions of if it was really constitutional

5. SCOTUS affirmed practice 1971 

   1. Supreme court said that it is a legal practice in 1971

6. 1973 federal commission recommended abolition by 1978, unsuccessful 

   1. A  commission created by the federal govt recommended that plea bargaining be banned by 1978. They were unsuccessful but showcased obvious pushback.

7. Common in both urban and rural areas 

plea bargaining: controversial

Plea bargaining allows a lot of discretion to be used by judges and attorneys. Negative response to deals that are meant to entice people to plead guilty. 

plea bargaining: Discretion of prosecutors, judges 

1. Ex Carisa Ashe, Fulton county 2005

   1. She was a mother in her 30s arrested and charged with killing her 5 week old daughter because she struck her, her brain swelled and she died. 

   2. Charges dropped to a manslaughter charge if the women agreed to be sterilized. If she did not follow through with the sterilization, her charge would be upgraded back to murder 

plea bargaining: Judicial review of plea agreements 

1. Judges can reject or accept plea agreements 

2. If judge rejects, guilty plea can be withdrawn 

plea bargaining: “Trial penalty”

1. If you go to trial for the same crime instead of pleading guilty, you are subject to a trial penalty or tax 

   1. On avg 40% harsher punishment. 

   2. Court rewards you for taking responsibility for your actions and you don't use court resources 

percentage of criminal cases that go to trial

5-10%

criminal trials

1. Per usual … variation in states, but generalities

2. Felonies, misdemeanors, adult offenders 

   1. Juvenile offenses distinct 

3. Adversarial processes 

   1. Prosecutor vs defense, present different versions of what happened, each arguing their version is accurate. Up to jury and judge to figure out where the truth lies 

Bench trial 

Judge hears all of the facts and the judge determines the outcome. No jury 

Jury trial 

Set of citizens who make up a cross section of your community are intended to determine guilt or not. 

voir dire

the process of picking a jury

Federal court jury #

12 members (2 alternates)

state court jury #

6-12 members (do less to save time and resources in smaller crimes

Jury questioning, dismissal, peremptory challenges

1. Can do group questions by raise of hand or individual 

2. Each side has a certain number of people they can strike without offering a reason, beyond that, they can strike people for cause.

Death qualified juries

1. If it is a case involving capital punishment that jury must be death qualified 

2. Every member of the jury has to commit that they are willing to give a death sentence in that case if that person is found guilty 

Scientific jury selection 

1. If you are hired to do jury selection, you would be aware of what type of people in the community would be most open to prosecution. Target specific populations to the jury to make it more agreeable to your sides argument 

The Trial Process

1. Opening statement 

2. Prosecutors evidence, witnesses 

   1. Motions, objections throughout

   2. defense cross-examination 

3. Defense rebuttal 

   1. Motions, objections throughout 

4. Closing arguments 

5. Judges instructions to jury 

6. Jury deliberation 

7. Verdict (if found); guilt “beyond reasonable doubt”?

Trial decision making: inherent issues

1. Adversarial system 

   1. Some people question if an adversarial system produces error in our justice system 

2. Incomplete information; judgment 

Trial decision making: Judges vs juries & jury nullification

1. One better equipped?

2. Jury nullification 

   1. Via the practice of jury nullification, they may refuse to convict someone 

   2. Even when the law is just, juries may protect members of their community by refusing to convict them. 

   3. Juries are sometimes unlikely to convict small marijuana cases, 

sentencing goals

retribution, general deterrence, rehabilitation, incapacitation, restorative justice emerging, related coinsiderations

Retribution

1. The oldest expectation among these

   1. Lots of examples in these in prior law systems, eg hard labor, flogging, hanging 

2. Punishing someone harshly for breaking the law 

General deterrence 

1. The idea that when you punish a particular offender you demonstrate to the rest of the community that they will suffer the same fate 

2. You don't want the punishment to happen to you so you dont commit the crime 

3. Discourages community

rehabilitation

1. In earlier times there was spiritual instruction or education 

2. Now, this gets much more attention in the CJ system. Currently closer to a balance between retribution and rehabilitation in our goals 

3. Considered by government when we think of how we can treat someone convicted of crimes 

4. Treatment, counseling, education, work training 

Incapacitation

Separating a criminal offender from the rest of society so they cannot commit further crimes on society 

Restorative justice emerging 

1. In the last few decades a fifth option has started to be used more frequently called restorative justice 

2. These deal more with repairing relationships between the victim and offender 

3. Redirects someone from CJ system all together if they complete program

   1. In athens clarke county this deals with youth misdemeanors 

      1. Come to an agreement to how the person can make up what they have done between offender and victim 

4. Is not as popular as the other four but has began to pop up 

Goals of sentencing: Related considerations

1. Prison overcrowding, costs, number of probate and correctional officers 

   1. These factors can impact decision making in sentencing. If there is extra bed space you may be more likely to incarcerate someone but if you don't have the space you may not. 

   2. Expensive to incarcerate someone rather than probation or community service 

   3. There are often shortages of probation and correction officers because there is a high turnover rate.

who holds sentencing power

1. Power mostly with judges 

   1. Some state juries determine sentence, subject to judicial revision 

   2. Judges are guided by state, local or federal law in the kinds of sentences they are allowed to give.

   3. Some states where juries have the power to first suggest a sentence where a judge can adjust 

      1. Georgia is not one of these states, only about 8 

Sentencing decisions: Major players: judges, probation officers, prosecutors 

1. Judges have the bulk of the say when sentencing 

   1. However, they can be highly influenced by probation officers. Probation officers have all of the history of the person and construct a report of that person. They then are able to recommend punishment for that person 

      1. Very good at figuring out elements of a persons background that should be taken into consideration 

   2. Called a pre-sentencing investigation report (PSI Report)

      1. Give PSI to judge so they can use it 

2. Prosecutors can also recommend a sentence to the judge 

   1. Depending on prosecutor if lenient or harsher 

   2. Recommendations are also taken very seriously, will often follow this recommendation 

sentencing: Historical norms vs recent trends 

1. Judges used to have much more discretion than they do today 

2. Now, there have been many more reforms that limit judge power 

indeterminate sentencing

1. very common for a long time. This was when a judge can sentence someone and this would be the maximum sentence they would face.

   1. “Up to ten years” - unlikely someone would stay for that long 

      1. One day reduced from sentence for good behavior

      2. Parole opportunities etc 

when determinate sentencing began to create more certainty

1960s

Determinate sentencing

1. People did not think punishments were harsh enough and there was enough general deterrence within the community. 

2. Mandatory minimums 

   1. If you were convicted of some crime you would have to serve a mandatory amount of time before you could even be considered for release 

3. Sentencing guidelines 

   1. Used in federal government and 21 states 

   2. Put together a commission of experts and those people come up with a grid system that outlines for every possible offense within the guidelines the mandatory range of punishments available and how the punishment is adjusted if the person has a particular type of criminal background. These guidelines limit judges discretion by making sure they can only bring the sentence that corresponds in the cell of the grid 

   3. Georgia does not have sentencing guidelines 

   4. “Optional” vs “presumptive”

      1. Variation in if these grids are required judges follow or if they are optional/advisory. 

Spike in the # of Americans incarcerated

1980

1. Lots of discussion if this is a burden to government or necessary to prevent crime 

Misdemeanor sentencing

1. after plea/verdict 

   1. If convicted, the judge will usually announce sentence quickly

Felony sentencing

1. Felonies usually have a pause because the stakes are high. 

2. Court will schedule a hearing for a later date so probation officer can construct a PSI 

3. Once the day of sentencing hearing arrives person will be brought out from detention and they will learn their fate 

sentencing norms

1. recs of prosecution, probation officers, sometimes public pressure 

   1. Norms will occur overtime for a conviction of a crime in that jurisdiction and people will know sort of the level of punishment 

   2. Depends on the county what the going rate is 

   3. If you know the community cares about this case, you may want to make an example of the person

      1. You would want to please the public and this can influence sentencing decision 

Statements by defense, prosecution; sometimes from defendant victim, victims family etc.

1. This is newer, victim impact statements are often used in the modern sentencing process 

1. Sentencing determination 

   1. Basis in _____

1. past practice, evolutionary process 

   1. You can tell ahead of time what is probably going to happen 

Basis of sentencing severity: Nature of offense

More serious crime associated with more serious punishment 

Basis of sentencing severity: Acceptance of responsibility 

1. 30-40% discount if you plead guilty, the state wants you to plea bargain so you don't go to court. 

2. Incentives to accept responsibility for your actions 

Basis of sentencing severity: Criminal record 

1. Sentencing guidelines are written with this in it, PSIs focus heavily on someone's criminal history 

2. More of a criminal record means more of a severe punishment than a first time offender 

3. Repeat offender laws in Georgia.

Basis of sentencing severity: aggravating factors

1. Flight, use of firearm/body armor, use of minors, terrorism, abuse of public trust 

2. Depends on state on how many aggravating factors there are 

Considerations in sentencing 

1. Seriousness of offense 

2. Prior criminal record 

3. Others (legitimate or otherwise)

   1. Economic status, personal characteristics 

4. After decision made 

   1. Sentencing announcement, possibility justification 

Federal sentencing guidelines: 1984

• mandatory minimums

• US Sentencing Commission

  • The Commission brought together with experts in the field that looked at federal law and came to an agreement on what punishments would be given certain content.

Federal sentencing guidelines: Learning from states

1. MN and WA 

   1. This policy innovation first popped up in Minnesota and washington. Federal govt saw this, thought it was a good idea, and followed their example 

Federal sentencing guidelines effective

1. November 1987

   1. Became effective in 1987 with a gap to train staff and judges and how to use these things 

Federal sentencing guidelines: extent

1. 700 offenses 

   1. Greater than -200 within states guidelines 

      1. Most states really only have no more than 200 punishments in state guidelines

   2. Federal law determined over 700 offenses and what punishments would go with them 

      1. These used to be mandatory for federal judges and it worked that way for a while. 

Federal sentencing guidelines: examples

1. Alien smuggling 

   1. 1 person: 10-16 months 10 people ;18-24; 50 people -  27-33

2. Murder 

   1. 1st degree: life; 2nd: 235-293 months 

3. Possession w intent to distribute 

   1. Small quantities: marijuana 0-6 months; meth 10-16 months 

Recent supreme court decisions re: sentencing guidelines 

1. Blakely v washington (2004)

2. US v Booker (2005)

3. US v Fanfan (2005)

Blakely v washington (2004)

1. Sixth amendment protections 

2. Involved  a washington state criminal prosecution where person was convicted of a crime, jury was seated, jury found them guilty and the jury recommended their sentence but the law allowed the judge to review and adjust the sentence if they thought the jury acted improperly 

   1. Judge thought there were more aggravating factors in the crime that the jury didnt hear about and he used those to elevate the sentence from 52 months to 90 months. Defendant sues, saying their sixth amendment rights to due process was violated because the jury did not determine the aggravating factors and the supreme court agree 

   2. Aggravating factors could not be used unless jury agreed certain factors were present 

US v Booker (2005)

ruled the Federal Sentencing Guidelines unconstitutional and made them advisory instead of mandatory

US v Fanfan (2005)

U.S. Supreme Court struck down the federal Sentencing Guidelines, ruling that the Guidelines violate the Sixth Amendment right to trial by jury by permitting judges to impose sentences based on aggravating factors not found by a jury beyond a reasonable doubt.