exam three

ad hoc plea bargaining

term used to refer to unusual concessions defendants agree to make during the plea negotiation process

affidavit

a document stating the facts relied on to create probable cause

change of venue

a request by the defendant to have their trial take place in a different location because of prejudicial pretrial publicity about the case

charge reduction

a type of plea bargaining in which the prosecutor reduces the severity of the charge or the number of counts the defendant is facing in exchange for a guilty plea

defendant rehabilitation policy

a charging policy based on the notion that the majority of defendants--particularly first-time offenders accused of nonviolent crimes--should not be processed through the criminal justice system; the focus of his policy is on the early diversion of defendants and the use of noncriminal justice alternatives

factors that motivate prosecutors to file or reject charges will depend to some extent on formal and informal departmental policies

downstream orientation

the notion that prosecutors charging decisions in criminal cases reflect their predictions about the likelihood of conviction as the case moves toward trial. prosecutors attempt to predict how the judge and jury will evaluate the defendant, the victim, and the crime

legal sufficiency policy

a charging policy under which prosecutors file charges in all cases in which the legal elements of the crime are present. because prosecutors operating under this policy do not necessarily “screen out” cases where the evidence is weak, there is both a high portion of cases that are accepted for prosecutor and a large percentage of cases that are dismissed at preliminary hearings and trials

sentence agreement

agreement for sentencing leniency negotiated during the plea bargaining process. the prosecutor might agree to recommend a particular sentence, recommend that sentenced be served concurrently rather than consecutively, or agree to recommend that the sentence not exceed some threshold (a “sentence lid”)

limits judicial discretion

slow plea of guilty

a hybrid approach to case adjudication, with elements of both plea bargaining and trial. to receive concessions from the prosecutor, the defendant waives the right to a jury trial, and the case is adjudicated by a judge at a bench trial

substantial assistance departure

a type of downward departure authorized by the federal sentencing guidelines. the judge can impose a more lenient sentence than require by the guidelines if the defendant provides information that leads to the arrest and prosecution of another offender

system efficiency policy

a charging policy that emphasizes case screening as a way to decreasing office workload. this policy results in high levels of referrals to diversionary programs and in overcharging (for the purpose of enhancing the prosecutors power in lea negotiations)

trial sufficiency policy

a charging policy under which prosecutors evaluate cases in terms of their likelihood of conviction at trial; they file charges only if the odds of conviction at trial are good. this policy produces both a high rate of rejection at initial screening and a high trial rate for the cases that are not screened out

direct evidence

evidence, such as eyewitness testimony, that by itself proves (or disproves) a fact that is at issue in the case

hearsay evidence

evidence provided by a witness that is based on information provided to the witness by someone else. generally inadmissible, although there are a number of exceptions (more than twenty exceptions listed)

indirect evidence

evidence that requires the judge or jury to make inferences about what happened at the scene of the crime or judgements about the defendants role in the crime. also referred to a circumstantial evidence

liberation hypothesis

an explanation for research findings suggesting that legally irrelevant factors (the race or gender of the defendant and victim and the behavior of the victim at the time of the crime) come into play primarily in cases where the evidence is ambiguous and the outcome is therefore less predictable. the liberation hypothesis suggests that when the evidence s uncertain, jurors will be “liberated” from the constraints imposed by the law and will therefore feel free to take legally irrelevant factors into consideration during decision making

mock jury study

a method of studying jury deliberations. researchers use mock juries or mock trials that involve hypothetical scenarios. these may be actual mock trials, such as in a university classroom, or simple written scenarios wherein people (often college students) are asked to decide some hypothetical defendants fate. then the researchers compare people demographic characteristics to the decisions they hand down

privilege against self-incrimination

according to the fifth amendment, “no person shall be compelled in any criminal case to be a witness against himself”. that is, any person charged with an offense cannot be compelled to testify against themselves n a criminal trial

prosecutor cannot call the defendant or reference a defendants refusal to testify. jurors are not to count a defendants refusal to testify as a sign of guilt. should a defendant choose to testify, their testimony is treated just as any other

privileged communication

this is an exception to the general rule that all relevant evidence is admissible at trial. certain categories of individuals generally cannot be compelled to testify in criminal cases. this includes spouses, priests, doctors, and lawyers. the things these individuals say to one another are said to be privileged communications

this expectation of privacy between certain parties is attached via the fifth amendment. marital privilege applies in all cases except where the spouse or a child s a victim or if statements were made in front of a third party

real evidence

evidence that can be admitted into trial that consists of tangible items such as weapons used in the crime, DNA or fingerprints collected at the crime scene, or other “real” objects relevant to the case

testimonial evidence

a classification of evidence that includes the actual sworn testimony provided by a witness during a trial. real evidence is introduced using testimonial evidence

this evidence can be introduced by either expert witnesses or lay witnesses

appellate review

process of reviewing final judgements of lower courts on questions of law, with the goal of determining whether proper procedures were followed

boot camp

program that targets young, nonviolent, first-time felony offenders who do not have extensive prior criminal records. modeled on the military boot camp, the correctional boot camp emphasizes strict discipline, military drill and ceremony, and hard labor and physical training. most also provide substance abuse counseling and educational and vocational training. offenders selected for these programs live in barracks-style housing, address the guards by military titles, and are required to stand at attention and obey all orders

collective incapacitation

punishment philosophy that holds that all offenders found guilty of a particular type of crime, without regard to their prior record or other personal characteristics, are dangerous and therefore should be incapacitated through a jail or prison sentence

this can be all those convicted of a certain type of offense or those deemed the most dangerous

community service

a type of alternative punishment or intermediate sanction in which offenders are ordered to perform a certain number of hours of unpaid work at schools, hospitals, parks, and other public and private nonprofit agencies

not used very often and viewed as a mild sentence

day fine

a type of fine originating in europe and latin america. the fine that the offender is ordered to pay is calibrated both to the seriousness of the offense and to the offenders ability to pay

determinate sentence

sentencing system in which the legislature provides a presumptive range of confinement for each offense or class of offenses. the judge imposes a fixed term (set amount of time) of years within this range. the offender serves this sentence, minus time off for good behavior

deterrence

utilitarian justification of punishment in which punishment is seen as a means of preventing the offender from reoffending or discouraging others from following their example. deterrence theorists suggest that potential offenders will refrain from committing a crime if they believe that the odds of getting caught and being severely punished are high and are not outweighed by any anticipated gain from the crime

punishment must be swift, certain, and severe

electronic monitoring

type of punishment that is often used in conjunction with house arrest, designed to ensure that offenders are at home when they are supposed to be. the offender is fitted with a wrist or ankle bracelet that is worn 24 hours a day. the bracelet emits a constant radio signal to a home monitoring unit, which is attached to the offenders home phone. the monitoring unit informs the monitoring center when the offender enters and leaves their home; it also sends a message if the offender tampers with or attempts to remove the bracelet

general deterrence

use of punishment to dissuade prospective offenders. potential offenders learn of the consequences of criminal involvement (for actual offenders) and decide not to risk subjecting themselves to such punishment

guided discretion statutes

statutes that allow the death penalty to be imposed if the crime involves at least one statutorily defined aggravating circumstances

house arrest

type of punishment in which offenders are ordered to remain at home for a designated period of time. they are allowed to leave only at specified times and for specific purposes--to obtain food or medical services, to meet with a probation officer, and, sometimes, to go to school or work

incapacitation

a utilitarian justification of punishment that involves locking up--or otherwise physically disabling--dangerous or high-risk offenders to prevent them from committing crimes in the future

punishment should be proportionate to the risk imposed by the offender. however, there are concerns over punishing based on risk (murderers vs. drug offenders)

indeterminate sentencing

sentencing system in which the legislature specifies a minimum and maximum sentence for each offense or class of offenses. the judge imposes either a minimum and a maximum term of years or the maximum term only. the parole board decides when the offender will be released from prison

the judge has discretion within this range

intermediate sanction

a sanction that is more severe than probation but less severe than a prison sentence. examples include intensive supervision probation, boot camps, house arrest and electronic monitoring, community service, and monetary fines

life without the possibility of parole (LWOP) sentence

this is a prison sentence given to a convicted defendant in which they will remain in prison for their entire life and will not have the ability to a conditional release before they complete this sentence 

mandatory minimum sentence

the minimum jail or prison sentence that must be imposed on an offender convicted of a particular type of crime; especially common for drug offenses and for offenses involving use of a weapon

part of the get tough on crime movement

probation

a section involving community supervision of an offender by a probation officer. may also include other conditions, such as substance abuse treatment or drug testing

allows offenders to remain in the community with certain conditions. the judge can impose probation unless the offender is likely to commit additional crimes, if the offender needs treatment that can be more easily received in jail or prison, or if the severity of the crime makes probation inappropriate

rehabilitation

a utilitarian justification of punishment that involves preventing crime by reforming, or treating, offenders. the techniques used to reform or rehabilitate offenders include such things as individual or group counseling, education, job training, substance abuse treatment, and behavior modification programs

they believe there are underlying reasons for offending. by identifying these factors, the offender can be prevented from future offenses because the underlying issue has been addressed

what are the retributive justifications for why to punish?

backward-looking justification of punishment that holds that an offender is punished because they have done something wrong--something blameworthy--and therefore deserves to be punished

they are deserts. they think it is right for the wrongdoer to be punished, hold the offender responsible for their actions, and because the offender “deserves it”. there is also a moral responsibility to punish the guilty, as those who offend take an unfair advantage and punishment equalizes the situation

selective incapacitation

punishment philosophy that holds that offenders who are dangerous and likely to commit additional crimes should be incapacitated through a jail or prison sentence. involved predicting that an individual offender, or offenders with certain characteristics, will commit additional crimes if not locked up

some individuals are too dangerous to be allowed in the community

sentencing guidelines

structured sentencing system implemented by the federal government and some states. typically, sentence ranges are determined by the intersection of a crime seriousness score and the defendants criminal history score, and judges cannot depart from the guidelines without providing reasons for doing so

removes judicial discretion

specific deterrence

use of punishment to dissuade offenders from reoffending. an offender who has been legally punished ceases offending because of a fear of future punishment

trial penalty/jury tax

penalty or “tax” imposed on defendants who do not plead guilty but who insist on a jury trial. notion that defendants who go to trial will get harsher sentences than those who plead guilty

what are the utilitarian justifications for why to punish?

forward-looking justifications of punishment that focus on the future criminal behavior of both the person being punished and other members of society. the goal is to prevent future crime through deterrence, incapacitation, or rehabilitation

there is an emphasis on the prevention of crime, punishment must promote good or prevent evil or else it too is wrong

double jeopardy clause

clause in the fifth amendment that prevents the state or federal government from prosecuting an individual for the same crime more than once

final judgement

limits the timing of an appeal until after the court hands down its final judgement as to the defendants guilt

harmless error rule

rule that states that an error that would not have altered the outcome of the case (a harmless error) does not require the appellate court to overrule the offenders conviction or sentence

designed to prevent an unnecessary new trial

interlocutory appeal

an appeal filed prior to adjudication of a criminal case. this type of appeal focuses on critical constitutional questions that have no bearing on the defendants guilt (or lack of)

intermediate appellate courts

state courts found in many states that are the first to hear appeals from lower state courts. intermediate appellate courts must hear the appeal and render a decision before other side can appeal to the state court of last resort

broken windows

the notion that communities that allow “broken windows”--which is a metaphor for litter, decay, vandalism, graffiti, and similar types of social disorganization--to proliferate will have higher levels of crime than will communities that attend to these problems and clean up their streets and neighborhoods

child savers

civic-minded individuals who, during the early part of the twentieth century, advocated state intervention to save at-risk children who were not being adequately enrolled or supervised by their parents. their stated goal was to help delinquent, abused, and neglected children who were suffering due to the negative effects of rapid industrialization

community court

a specialized court, located in a neighborhood rather than in the downtown core, that handles minor offenses (misdemeanor or low-level felony offenses) and emphasizes finding solutions to crime problems that are plaguing the neighborhood

often require convicted offenders to perform community service as a condition of the sentence

domestic violence court

a problem-solving court with a specialized docket of domestic violence cases. a multidisciplinary team of criminal justice and social service agency officials attempt to craft interventions that will ensure both victim safety and batterer accountability

drug treatment court

a problem-solving court with a specialized docket of drug offenses. the court incorporates intensive judicial supervision of drug offenders, mandatory drug treatment, and a rehabilitation program providing vocational, education, family, and medical services

homeless court

a specialized court that focuses on legal problems common to those who are homeless. for example, the court may help homeless individuals pay fines and resolve outstanding infractions and misdemeanor offenses

hold sessions at local homeless shelters. receive an alternative sentence that involves participation in an agency program

in loco parentis

latin for “in place of the parents”. philosophy that, in conjunction with parens patriae, allows the juvenile court to act in the best interest of the children who appear before it

juvenile court

a type of specialized court that handles cases involving juvenile offenders, with a focus on rehabilitation

operates under doctrine of parents patriae

mental health court

a specialized court that involves collaboration between the criminal justice system and mental health agencies with the goal of providing needed services to mentally ill offenders. defendants participate in court-ordered treatment programs and may have their charges dropped on successful completion of treatment

created to help keep mentally ill patients out of prisons

parens patriae

the original guiding principle of the juvenile justice system; literally translated as “the father of the country”, the phrase refers to the government’s rights and obligation to act on behalf of the child--that is, to do what is in the best interest of the child

gives court authority over a child in need of protection and guidance. originated in cook county, illinois. began the child savers.

intervenes disproportionately in the lives of the poor

problem-solving court

serialized courts that take a broader and more comprehensive approach to delinquency and criminality. rather than focusing solely on the crime for which the defendant has been arrested, these courts attempt to address the underlying social and economic factors that contributed to the defendant’s involvement in the crime. they also involve collaboration among criminal justice and social service agencies and are more likely than traditional courts to incorporate the principles of restorative justice. examples include drug courts, domestic violence courts, homeless courts, teen courts, and reentry courts

began in the 1980s. limited jurisdiction courts focusing on a particular crime problem like drugs. also called specialized courts

reentry court

a specialized court that does not adjudicate new offenses but instead provides oversight and support services to offenders reentering the community with the goal of reducing recidivism and prison return rates

parolees who violate the terms of their supervision, however, are dealt with in a fairly traditional fashion

restorative justice

utilitarian justification of punishment that views punishment that views punishment as a means to repair the harm and injury caused by the crime and focuses on the victim and the community as well as the offender. participants in the process discuss the effects of the crime on the victim, the offender, and the community and attempt to reach a collective agreement regarding the most appropriate sanction

includes victim-offender mediation, family group conferencing, sentencing circles, and citizen supervision of probation. also includes face-to-face communication between offender, victims, and community

specialized court

serialized courts that take a broader and more comprehensive approach to delinquency and criminality. rather than focusing solely on the crime for which the defendant has been arrested, these courts attempt to address the underlying social and economic factors that contributed to the defendant’s involvement in the crime. they also involve collaboration among criminal justice and social service agencies and are more likely than traditional courts to incorporate the principles of restorative justice. examples include drug courts, domestic violence courts, homeless courts, teen courts, and reentry courts

began in the 1980s. limited jurisdiction courts focusing on a particular crime problem like drugs. also called problem-solving courts

veterans treatment court

a specialized court devoted to military veterans who have run afoul of the criminal justice system

veterans have higher rates of unemployment, homelessness, substance abuse, and mental health problems. these problems often lead to involvement with the criminal justice system. each participant is typically assigned a mentor, also a veteran. mostly limited to nonviolent offenders. similar to other problem-solving courts

waiver of juveniles to criminal court

the process of transferring a juvenile from juvenile court to adult court. most states give juvenile court judges the power to waive jurisdiction over juvenile cases that meet certain criteria--generally, a minimum age, a specified the of level of offense, and/or sufficiently serious record of prior delinquency. some states have direct file waiver provisions, which allow the prosecutor to file certain types of juvenile cases directly in criminal court

all but four states give juvenile court judges the power to waive jurisdiction over juvenile cases

what is the order of pretrial proceedings?

1. arrest
2. indictment/information
3. initial appearance
4. arraignment
5. discovery
6. pretrial motions
7. plea bargaining
8. jury selection

arrest

starts off the criminal process. can be preceded by a complaint. sometimes made with a warrant. also requires probable cause. follows with booking

warrant

obtained by officers who must first fill out an affidavit

probable cause

legal concept referring to the amount of proof a police officer must have to search or arrest someone

booking

includes filling out paperwork, fingerprinting, and mug shots taken

who makes the charging decision?

the prosecutor

prosecutor

known as “the gateway to justice” and is highly discretionary

what are the four prosecutorial policies?

legal sufficiency, trial sufficiency, system efficiency, and defendant rehabilitation

what factors affect prosecutors charging decisions?

legally relevant factors of convictability: the seriousness of the offense, the strength of evidence in the case, and culpability of the defendant

legally irrelevant factors of convictability: backgrounds of defendant and victim, race, and gender

other factors: resources, motivation, wisdom of state stepping in (domestic violence), and downstream orientation

legally relevant factors of convictability

the seriousness of the offense, the strength of evidence in the case, and the culpability of the defendant

legally irrelevant factors of convictability

backgrounds of the defendant and victim, race, and gender

what are the other factors that affect convictability?

resources, motivation, the wisdom of state stepping in (domestic violence), and downstream orientation

what are the constraints of prosecutorial discretion?

1. a decision not to charge a suspect can be appealed (but the supreme court frowns on judicial oversight in this context)
2. decision to charge cannot be based on race, religion, or other “arbitrary classification”
3. due process of law
4. professional standards of conduct (charges must be based on factual evidence and ethical and the ethical obligation not to rush to judgement)

information

a substitute for grand jury indictment and informs the defendant of the facts and the elements of the offense charged

indictment

fifth amendment, though not applied in all states

issued by the grand jury

grand jury

typically composed of twenty-three people, only constitutionally required for the federal government, closed proceedings, states that use grand juries vary on their size and when they are used, used as a check on overzealous prosecutors, issues a true bill or no bill

initial appearance

done “without necessary delay” (but defendants may not mind the delay if retrial release), inform defendants of charges and rights, misdemeanors typically enter a plea, bail is set

bail

decisions regarding bail made or soon after at a bail hearing (but there is no right to bail), cannot impose excessive bail under the eight amendment, bail bondsmen may be used

arraignment

formally inform defendants of charges and enter a plea (felonies)

what are the possible pleas?

guilty, not guilty, standing mute, solo contendere, and alford plea

standing mute

refusing to plea, court enters “not guilty” plea

nolo contendere

no contest: “i do not desire to contest the action”

resembles guilty plea but differs in that it cannot be later used with respect to civil cases

alford plea

not accepted as valid option in all states and only conservatively allowed in federal system, defendant enters guilty plea but denies having committed the crime to which they are pleading

discovery

process by which both parties to the case learn of evidence the opposing side will use (exchange evidence according to rule 16 of federal rule of evidence), defendant has right to exculpatory evidence, reciprocal prosecution, and defense must inform if presenting an an insanity or alibi defense (in alibi, defense must also turn over list of witnesses supporting the defense)

rule 16 of federal rule of evidence

prosecution must turn over all written records, past criminal records, and other forms of evidence gathered by the prosecution

exculpatory evidence

evidence tending to show that the defendant is innocent

brady v. maryland (1970)

reciprocal prosecution

defense must turn over their evidence to the prosecution

pretrial motions

set the boundaries of the case, may play an important role in determining whether the case goes to trial, party filing motions must state in writing the gourds on which the motion is based and type of relief requested

what are the types of motions filed?

motion for dismissal of charges, motion for a change of venue, motion to suppress evidence, motion for severance of defendants, and motion for a determination of competency

motion for dismissal of charges

dismiss charges on grounds that probable cause has not been met for police to make arrest or support charges filed

motion for discovery

request filed by defense that prosecutor provide documents and evidence that will be used against the defendant at trial

motion to suppress evidence

request to exclude illegal obtained evidence

motion for severance of defendants

request made by defendant to not be tried together with a codefendant

motion for a determination of competency

request to determine if defendant is competent to stand trial