criminal court exam 2

Courtroom workgroup

• Within courts, there are multiple individual “court actors,” meaning individuals who have:

• specialized roles/responsibilities

• regularly work together to process civil & criminal cases that come before the court

• Court actors include:

-judges

-prosecutors

-defense attorneys

-defendants

-plaintiffs (in civil matters)

-others: victims, jury, court administrators, & language interpreters

• Collectively, they are referred to as the “courtroom workgroup” and make up the “court community.”

Prosecutors

• In criminal prosecutions, no courtroom workgroup member is, arguably, more powerful than the prosecutor.

• Prosecutors are primarily responsible for:

• bringing charges against individuals who are accused of a crime

• representing the government’s interest in court

• Operate in both federal & state courts.

Importance of prosecutors

• Central position within the CJS & courts – they act as “gatekeepers,” meaning they have considerable control over the court’s caseload through, for example, charging decisions & plea offers.

• Play an active role in all aspects of a criminal matter – from investigation of crimes, arrest, prosecution, sentencing, and beyond (e.g., probation & parole).

• Operate with nearly limitless discretion & much of their business is conducted behind closed doors.

Federal prosecutors

• The federal court system consists of three types of prosecutors:

• U.S. Attorney General

• U.S. Attorneys

• Assistant U.S. Attorneys

U.S. Attorney General

• At the top of the federal court system hierarchy is the U.S. Attorney General (“U.S. A.G.”).

• Member of the presidential Cabinet, head of the Department of Justice (DOJ), & chief law enforcement officer of the federal government.

• Nominated by the president & confirmed by the Senate.

U.S. Attorney General, cont’d

• Responsibilities:

• represents the U.S. in legal matters

• advisor to the president on all legal matters

• sets law enforcement priorities for the federal government

• Current U.S. AG - Pam Bondi.

• 2025 -

• former AG of FL (2011-2019)

U.S. Attorneys

• In the federal court system, head prosecutors are referred to as “U.S. Attorneys.”

• U.S. attorneys represent the government in prosecutions involving acts that violate federal statutes.

• There are 93 U.S. Attorneys—one per district—across the 94 U.S. District Court districts.

• Note: Districts of Guam & Northern Mariana Islands are represented by a single U.S. Attorney.

U.S. Attorneys, cont’d

• Appointed by the president, confirmed by the Senate, & serve 4-year terms (new president, new U.S. Attorneys).

• Although U.S. Attorneys are in charge of their respective offices (including how their offices are structured), day-to-day operations (e.g., charging, plea negotiations, appearing in court, etc.) are mostly carried out by “assistant U.S. attorneys.”

Eastern District of PA

• One of the largest U.S. Attorney Offices in the country.

• 140 assistant U.S. attorneys

• 105 non-attorney positions

• Consists of three separate divisions:

• criminal

• civil

• administration

• For comparison, the U.S. Attorney’s Office of the District of NJ consists of six divisions - appeals, civil, civil rights, criminal, special prosecutions, & administrative.

State Prosecutors

• State court systems consist of three types of prosecutors:

• Attorney General

• Chief local prosecutors

• Assistant prosecuting attorneys/Assistant prosecutors

Attorney Generals

• At the top of the hierarchy in each state is the “Attorney General” (“AG”).

• State’s chief legal advisor & chief law enforcement officer for the state government.

• Current AG of PA – Dave Sunday.

• selected in 2024 & assumed office in 2025

Attorney Generals, cont’d

• Responsibilities:

• represent the state in legal disputes

• issue legal advice to state agencies & the legislature

• set law enforcement priorities for the state

• Note: AGs do not directly supervise chief local prosecutors & their offices.

Attorney Generals, cont’d

• In most states (43), including PA, AGs are selected through popular elections.

• In a few other states (7 in total), AGs are appointed by:

• governor (NJ, NH, WY, HI, & AK)

• state’s Supreme Court (TN)

• state’s legislature (ME)

• In most states, the term length is 4 years.

Chief local prosecutors

• State courts are decentralized & so the burden falls on local jurisdictions (e.g., counties or judicial districts) to prosecute persons who violate state laws. 

• Local jurisdictions are led by ”chief local prosecutors” or “District Attorneys” (”DAs”).

• In most states, DAs are elected to office via popular elections & serve 4-year terms.

Chief local prosecutors, cont’d

• DAs oversee their respective District Attorney’s Office (DAO) & assistant district attorneys (“ADAs”).

• The DA’s role in day-to-day operations largely depends on the size of the jurisdiction.

• In smaller jurisdictions, DAs play a more active role in the criminal process (e.g., sometimes appear in court & represent the government at trial).

• In larger jurisdictions, rather than playing an active role in the criminal process, DAs:

• delegate this everyday work to ADAs

• manage the office’s organization & long-term planning

• set policies & priorities (e.g., mandate the prosecution of certain types of crimes & setting rules for plea-bargaining that are followed by ADAs)

Prosecutor’s office structure

• DAOs, especially the larger ones, maintain a bureaucratic organizational structure – there is an enforced chain of command (i.e., a hierarchy).

• Philadelphia’s DAO employs such a hierarchical structure:

• the elected DA sits atop of the office

• everyday operations are overseen by a “first” ADA that are assigned to numerous divisions

• examples of divisions: criminal, juvenile, & victim support services

• within criminal divisions in particular, there are multiple units/teams with ADAs that handle a variety of matters

Modes of prosecution

• Depending on how a particular office is organized, different methods of prosecuting cases can be implemented, including:

• horizontal

• vertical

• mixed/hybrid

Horizontal

• Prosecutors are assigned to units that handle specific steps or functions in the judicial process (one deals with initial appearances, one with trial, etc.).

• Most used by larger offices.

• Benefit(s): allows for large amounts of cases to be processed quickly (i.e., increases efficiency)

• Vertical

• A single prosecutor handles the all phases of a criminal prosecution (initial appearances to final disposition). 

• Most used by smaller offices.

• Benefit(s): important for victims & witnesses (i.e., relationship building) & prosecutors become highly familiarized with cases

Mixed/Hybrid

• Most cases are handled in a horizontal manner, but the more serious & complex offenses are handled by specialized units (i.e., vertically).

• Mode of prosecution used by Philly’s DAO.

Prosecutorial duties

• Throughout a criminal prosecution, prosecutors play many different roles & make many important decisions.

• Before an arrest, prosecutors:

• advise law enforcement during investigations

• is there enough evidence to make an arrest? 

• enough to convict?

• help prepare arrest & search warrants & may present to judges

• engage with potential witnesses to obtain cooperation

Following arrests, prosecutors. . .

• Screen cases to determine whether prosecution is appropriate.

• Between 33 & 50% of all arrestees are not formally prosecuted.

• impossible to prosecute all arrestees - there are too many & resources are limited

• Once a case is screened, the prosecutor must then make a “charging decision,” meaning a determination on whether to charge the individual or not & if so, the specific charges.

Charging decisions

• When making charging decisions, prosecutors have nearly limitless discretion & little oversight.

• charging decisions are not reviewable by courts

• Typically, prosecutors charge defendants with the most severe offense(s) possible.

• Generally, prosecutorial charging decisions are driven by several general factors surrounding cases.

Factors impacting charging decisions

• Seriousness & nature of the offense(s)

• the more serious the offense(s), the higher the danger posed by the individual, the more likely a case is prosecuted

• if the local community perceives certain crimes to be serious, the more likely they are to be prosecuted

• remember, DAs are elected officials

Factors impacting charging decisions, cont’d

• Offender’s culpability

• level of intent (danger posed by persons who act intentionally > negligent)

• prior criminal history (repeat offenders?)

• Likelihood of conviction at trial

• largely based on the amount & quality of the evidence

• if the evidence is not available, then obtaining a conviction may be difficult/possible.

Bach’s Ordinary Justice (2010)

• Lisa Cabassa, a 9-year-old girl, was sexually assaulted & killed.

• The case drew “public outrage, a cry for justice, and the fiercest possible demand to try the culprit and deliver a conviction.”

• During a one-month span after the crimes were committed, a dozen were arrested & released.

• Ultimately, two 17-year-old juveniles (Michel Evans & Paul Terry) were identified by a witness, arrested, and charged with kidnapping, murder, & rape, & the case went to trial

• During the trial, an immense amount of pressure was put on prosecutors to win.

• “Prosecutors want the dramatic closure of order prevailing over crime, and they know that conviction in a high-profile case is what registers with most citizens. And since citizens often elect both the prosecutor and the judge, the pressure is on.”

•  “In a tragedy like the death of Lisa Cabassa, the…pressure to win at trial can cloud an attorney’s ability to weigh the truth.”

• The pressures, coupled with the nearly limitless discretionary power of prosecutors (“virtually no check on the prosecutor who acts in this quasi-judicial role”), resulted in both defendants being sentenced to terms of 200-400 years.

• Nineteen years after the defendants were sentenced, the prosecutor questioned whether he had “convicted the wrong men,” stating that the “…factual situation never made a lot of sense to me.”

• In 2003, after 27 years in prison, both individuals were exonerated & released - the conviction was overturned on DNA evidence.

Plea bargaining

• Many criminal prosecutions are settled via plea bargaining/plea deals.

• Typically, prosecutors charge defendants with the most severe offense(s) possible – doing so places the prosecution in an advantageous position to be able to “bargain” with defendants.

• During plea bargaining, prosecutors offer defendants a “deal”— in exchange for a guilty plea, prosecutors offer, for example:

• a reduction of the types and/or number of charges

• more lenient sentence recommendations to the judge

• For prosecutors & their offices, plea bargaining is the optimal method of disposing of cases.

Why?

• eliminates the need for lengthy & costly trials

• ensures that defendants are convicted/punished

• conviction rates are sometimes viewed as a marker of success

• signals the public that the DAO is doing its job (as elected officials, public perception matters)

Efficiency & the courtroom workgroup

• Primarily due to high caseloads & backlogs, efficiency also matters to other members of the courtroom workgroup, particularly to judges & public defenders.

• As a result, it creates a system that incentivizes the use of plea bargaining as a tool to help alleviate the pressures faced by most courtroom workgroups.

If cases do go to trial, prosecutorial duties include. . . §representing the government at trial

• making sentencing recommendations

• representing the government on appeals

• handling probation/parole revocation petitions & proceedings

Philadelphia’s DAO

• The 3^rd largest DAO in the country – consists of about 600 employees, including 300+ ADAs, detectives, & support staff for the 1.5+ million people within city & county limits.

• Yearly, the office prosecutes around 40,000 criminal cases.

• Led by DA Larry Krasner.

• first elected in 2017 & re-elected in 2021

• current term ends on January 5^th, 2026 (i.e., 2025 – election year)

• Considered a “progressive prosecutor.”

Krasner’s progressive prosecution agenda

• End cash/monetary bail (“Philly Bail Reform 1.0 & 2.0”)*

• Hold those with power accountable (e.g., police misconduct)

• Expand alternatives to formal prosecution

• Reform the probation system (by, e.g., reducing jail for violations/“detainers”)*

• Reduce incarceration, especially of juveniles*

• End overly punitive sentences, especially for low-level offenses

• Reduce racial disparities throughout the CJS

• Employ criminologists & data scientists*

Philadelphia’s mode of prosecution

• Philadelphia’s DAO is:

• structured into divisions & units/sub-divisions

• employs a mixed/hybrid model of prosecution

• In Philadelphia, most cases are passed on horizontally from one unit to the next as cases make their way through the different stages of the process.

• Some cases (based on the nature of the charges & case complexity) are handled entirely by a single ADA who is assigned to one of the specialized units.

• These specialized units include:

• homicides & non-fatal shootings

• family violence & sexual assault

• e.g., intimate-partner violence, child neglect, & pornography & exploitation

• economic & property crimes

• e.g., identity theft & embezzlement

Defense attorneys/counsels

• Play a critical role in our country’s “adversarial” justice system.

• Defense attorneys are responsible for:

• effectively representing their clients & protecting their interests

• zealously challenging the actions & claims made by prosecutors

• ensuring that their clients are:

• treated fairly & equally under the law

• not convicted or punished until pleading guilty or being proven guilty

Right to counsel

• Defendants have a constitutional right to the assistance of counsel in “serious” criminal prosecutions.

• if charged with a misdemeanor or felony & if convicted, imprisonment is a possible outcome

• from the first appearance on & at all “critical stages”

• If the defendant cannot afford to hire their own attorney (i.e., are considered “indigent”), the government must appoint one on their behalf (Gideon v. Wainwright, 1963).

Indigent defenses

• Nationwide, most (~80%) criminal defendants are indigent.

• Federal & state governments are responsible for providing indigent defendants with counsel.

Federal defender organizations

• In the federal court system, indigent defendants are represented by “federal defender organizations.” 

• federally funded

• serve each of the districts

• “Federal Community Defender” (PA’s Eastern District)

State indigent defense programs

• States use one of three types (or a combination) of indigent defense programs to provide indigent defendants with counsel.

• Local governments (e.g., counties) are responsible for operating & sometimes funding their own programs. For example, in:

• PA - operated & funded by individual counties

• 1 of the 2 states in the country that does not assist local governments with funding.

• The other state? SD.

• NJ - operated by individual counties & funded mostly by the state

• The type(s) of indigent defense systems used by individual states varies across states & sometimes across counties within states.

• There are three types of indigent defense programs, including:

• assigned counsel

• contract attorney

• public defender

Assigned counsel programs

• The most used type of indigent defense system in the country.

• Under this system type, private attorneys are hired to represent indigent defendants.

• Attorneys are typically young & with little experience (fresh out of law school & looking for experience!).

• There are two types of assigned counsel programs used:

• ad hoc

• coordinated

Assigned counsel: ad hoc

• Private attorneys volunteer & are assigned on a case-by-case basis when necessary.

• Works well in places with little demand (e.g., rural counties).

• Problem(s)? There’s little control over the experience & qualifications of the assigned attorneys.

Assigned counsel: coordinated

• Private attorneys apply to be included on a list & are appointed on an as-needed, rotational basis.

• To be put on the list, attorneys must meet the required qualifications set by the given jurisdiction.

• Considered the better of the two assigned counsel program types because:

• there’s control over the quality of attorneys

• improved matchmaking

Contract attorney programs

• One or more private attorneys, law firms, or nonprofit organizations are contracted to serve a specific function (e.g., handle all misdemeanors or felonies).

• Contracts are secured through a bidding process.

• requests for proposals are put out

• potential recipients bid for the contract

• i.e., provide a figure as to how much they will be charging for the services

• There are two types of contract attorney programs:

• fixed-fee-per-case

• fixed-price

Contract attorney: fixed-fee-per-case

• Under a “fixed-fee-per-case” contract program, attorneys agree to handle a specified number of cases for a fixed fee per case.

Contract attorney: fixed-price

• Under a “fixed-price” contract program, attorneys agree to handle an unknown number of cases for the duration of the contract & for a single flat fee.

• Most used of the two contract attorney programs.

• Has many drawbacks.

Problems with fixed-price contract programs

• Used mostly by jurisdictions looking to cut costs/tight budgets.

• know exactly how much they’re spending & for how long

• Attorneys may be incentivized to cut corners to maximize profits by, for example:

• attempting to dispose of cases before trial (trials are expensive & lengthy)

• e.g., through plea deals - may not get the best possible deal for their clients

• not spending additional funds to hire the necessary investigators

• Overall, the nature of fixed-price programs raises concerns about the quality of the defense & the profession itself.

Public defender programs

• Attorneys are exclusively hired to represent indigent defendants.

• The attorneys are referred to as “public defenders” and together as “Gideon’s army.”

• Public defenders are considered “repeat players,” given that they:

• perform similar functions

• typically operate in the same court & sometimes courtroom

• interact with the same workgroup members (judges & prosecutors)

• Used in larger jurisdictions with high caseloads. For example, it is the system used in all NJ counties (“Public Defender’s Office”).

Problems with public defender programs

• Underfunded & overburdened.

• Defenders are often viewed as “double agents” by defendants/clients.

• Effectiveness is put into question.

• mixed findings

Public Defenders & Calculus of Defending (Nicole Van Cleve’s Crook County)

• Due to limited resources, public defenders must decide on which defendants are “worth” zealously advocating for & “saving” (vs. not - “mopes”).

• Why?

• defending requires time, effort, and resources (all of which are limited)

• slows down the efficiency of other workgroup members

• requires some of their limited amounts of “capital”/“street cred” that is built over time

• Advocating too much or for too many defendants (i.e., running out of capital) has consequences for both the attorney (“mope lover”) & the future clients that may also be worth saving.

Chapter 8

Criminal defendants & crime victims

• Judges, prosecutors, & defense attorneys receive most of the attention – each plays a direct & central role in criminal prosecutions.

• Less attention is given to criminal defendants & crime victims.

• often treated as a nuisance by courts & workgroup members

• considered as “clients” or “customers” by courts & members of the workgroup

Criminal defendants & crime victims, cont’d

• Defendants & victims also play critical roles – through their decisions, they have the potential to significantly influence prosecutions.

• The court must balance its duty to defendants & victims against the need to ensure that the court process operates fairly & efficiently.

Criminal defendants  

• Once someone is arrested for a suspected crime, they transform from “suspect” to “criminal defendant.”

• The foundational roles of criminal courts (determine guilt & pronounce punishment) revolve around criminal defendants.

• Criminal defendants play crucial roles in the criminal court process, including, for example:

• make key decisions regarding their defense (e.g., whether to accept a plea offer & testify at trial)

• ensuring that they abide by the formal & informal court rules, especially during jury trials

Defendant characteristics

• According to a 2009 Bureau of Justice Statistics (BJS) report that uses court data of felony prosecutions from the 75 largest counties in the country, criminal defendants were:

• mostly male (83%)

• 45% Black (non-Hispanic), 30% White (non-Hispanic), & 24% Hispanic

• 34% were between the ages of 21 & 29, 26% 40<, 23% 30-39, & 18% under 21

• either had not graduated (51%) or just graduated (29%) from high school

• ~20% some college/college graduate

• 60% had 1 or more prior convictions (29% had 5 or more)

Defendants in court

• Criminal defendants are protected by numerous rights during the court process, which ensures that it is conducted fairly.

• Examples

• Pretrial

• reasonable bail

• counsel

• being informed of charges

• Trial

• be present

• speedy

• public

• jury

• testify

• obtain & confront witnesses

Right to a speedy trial

• The Sixth Amendment guarantees the right to a speedy trial in criminal prosecutions - defendants must be quickly processed, especially if detained pretrial.

• Congress & state legislatures have formal, set limits on the number of days between a person’s arrest & trial:

• 60-90 days for defendants in custody pretrial

• 90-120 days for defendants released pending trial

• These set limits are rarely met.

Right to a speedy trial, cont’d

• According to a BJS report, in 2006, the median number of days between arrest & sentencing in state courts was 265.

• The average number of days varied by offense type – from 237 (property) to 295 (violent).

• 33% of cases took longer than a year to complete

Right to a speedy trial, cont’d

• Limits are often exceeded because defendants can waive their speedy trial rights & frequently do so.

• Examples of reasons for waiving speedy trial rights:

• more time to prepare a defense

• increases the likelihood of the prosecution losing a witness

Right to be present at trial

• Criminal defendants have the right to be present at trial. 

• Based on two clauses:

• Confrontation Clause of Sixth Amendment - right to confront & cross-examine, generally face-to-face, witnesses who provide testimony for the prosecution at trial

• Due Process Clause of Fourteenth Amendment - unfair & against the spirit of an open court system, where defendants are presumed innocent, to conduct any significant part of a trial without the defendant being present

Right to be present at trial, cont’d

• The right may be forfeited.

• defendant absconds (voluntarily & deliberately) before or during trial

• unruly, loud, & disruptive conduct by defendants

• Defendants can also waive their right to be present at trial.

• If the right is forfeited or waived, the court may hold a “trial in absentia.”

Right to be present at trial, cont’d

• Defendants have the right to appear in civilian clothes & without visible restraints.

• Why? Jail or prison clothes & restraints are likely to dilute the presumption of innocence in the eyes of the jury (Estelle v. Williams, 1976)

Compulsory Process Clause

• The Compulsory Process Clause of the Sixth Amendment grants defendants the ability to compel individuals to appear in court to testify as witnesses for the defense.

• How are witnesses compelled to testify?

• defense obtains a “subpoena”– a court order that requires an individual to appear at a specific time & place to testify as witness

• if witness fails to appear, they may be held in contempt of court

Compulsory Process Clause, cont’d

• The clause also protects a defendant’s right to put on a defense at their trial (e.g., present evidence).

• Defendants do not have an “absolute right to present any & all evidence or testimony she desires.”

• judges determine the admissibility of the evidence – it must be relevant & trustworthy

Crime victims

• Overlooked, but play a key role in the CJS - without their cooperation, many crimes would not be successfully prosecuted.

• Despite the many efforts/initiatives, crime victims today:

• are still often ignored & treated as a nuisance, although courts have an obligation to treat them with respect & dignity

• face many challenges/obstacles in working with criminal courts

Challenges faced by victims

• Lack of input into decisions

• input may be seen as an unnecessary complication that slows down the court process

• competing goals - victims seek justice, whereas others (e.g., prosecutors) consider efficiency (e.g., plea > trial)

• Lack of information about case

• called upon when needed & excluded when not

• makes tracking their cases difficult (cases are often rescheduled)

Challenges faced by victims, cont’d

• Revictimization & invasion of privacy

• may be forced to revisit events with prosecutor (when attempting to establish credibility) & defense during cross-examination

• Logistical & financial barriers

• proceedings are repeatedly rescheduled, time-consuming, costs accumulate (missing work, paying for parking, etc.)

• makes participation difficult

Victims’ right movement

• In 1982, the national government established a Task Force on Victims of Crime.

• Public hearings in a few large cities to discuss the needs of crime victims.

• The final report led to the federal Victims of Crime Act (VOCA) of 1984.

Victim of Crime Act of 1984

• Established the Office for Victims of Crime (OVC).

• administers & distributes funds to local & state agencies to assist with victim services

• helps establish, for example, victim assistance programs, emotional support networks, & victim advocacy offices

Victim rights

• Today, all states & the federal government have enacted laws designed to protect & help victims of crime & over 30 states have amended their constitutions to include victims’ rights provisions.

• The rights protecting crime victims fall under three general categories:

• be informed

• attend court proceedings

• be heard

Victim rights, cont’d

• The right to be informed about important proceedings, decisions, & actions related to their case, including:

• time & place of court proceedings

• release of defendant from custody

• dismissal of charges

• negotiated plea agreements

• sentence imposed

• defendant’s final release from confinement

Victim rights, cont’d

• The right to attend court proceedings, including pretrial hearings, trial, sentencing & parole hearings.

• The right to be heard.

• Examples of avenues through which victims are heard:

• some states require prosecutors to consider the opinions provided by crime victims about key decisions (e.g., before making plea deals & dismissing charges)

• victim impact statements – verbal or written statements read before sentencing expressing the effects of the crime

• allowed in all 50 states

• At the forefront of Victim Services/advocacy programs are…

• Local prosecutors & their offices

• the majority employ some type of victim services or advocacy programs to ensure that victims are aware of their rights & treated fairly & with respect

• responsible for the implementation of these provisions

• These programs employ trained victim advocates to work with victims & their families throughout the criminal justice process.

Common services provided by Victim Services

• keeping victims informed about their case status & progress

• accompanying a victim to court proceedings & investigate interviews

• speaking on the victim’s behalf in court & with other officials

• preparing victims for pending court hearings by informing them of procedures

• providing contact information for local resources & counseling referrals

• assisting victims in recovering stolen property & in obtaining restitution or compensation for expenses incurred because of the criminal act

Philadelphia’s DAO: Victim Support Services Division

• “committed to engaging, empowering, & encouraging victims, co-victims, survivors, witnesses, & families as they journey through the healing process in the community & during the criminal justice process”

• The division consists of multiple units that, together, provide support & crucial services to crime victims & witnesses, including.

Philadelphia’s DAO: Victim Services Unit

• Provides victims with support during the criminal justice process.

• Examples of support provided:

• providing crucial information

• ensuring victims understand their legal responsibilities & the legal process

• providing an opportunity to convey their desired outcome & why

• ensuring that their rights as victims are protected

Philadelphia’s DAO: C.A.R.E.S Unit

• The Crisis Assistance, Response, & Engagement for Survivors (C.A.R.E.S) Unit provides a “comprehensive, immediate safety net of advocacy & support services to survivors of homicide.”

• Connects survivors of homicides (victims) & witnesses to community resources & services that fit their needs.

• Ensures that they are not re-victimized during the legal process.

Philadelphia’s DAO: Other Victim Services units

• Victims of elder abuse – assists & supports victims of crime who are 60 years of age or older.

• Victims of family violence & sexual assault – assists & supports victims of domestic violence, sexual assault, child abuse, & other similar crimes that are tragic & complicated crimes that affect the most vulnerable populations.

Chapter 7

Judges

• Judges are public officers authorized by law to:

• hear legal disputes

• administer the law

• preside over courts of justice

• Often viewed as the most powerful & important actor in the criminal court system.

Judges, cont’d

• In reality, judges' power & actions are greatly limited/driven by, for example, other court actors & formal courtroom procedures that are guided by laws & guidelines.

• Examples:

• prosecutors – make charging decisions, plea offers, provide sentencing recommendations, & file motions

• defendants & their attorneys – determine whether to accept/deny plea offers, go to trial, & file emotions

• bail schedules & sentencing guidelines

• Active participants at every stage (arrest, pre-trial, trial, & post-trial) of the judicial process

Arrest

• Search & arrest warrant applications submitted by either prosecutors or police officers must be signed by judicial officers.

• Judges must review such warrant applications & determine whether probable cause exists that justifies the requested search or arrest.

Pre-trial roles

• After arrests, detained defendants appear in court (i.e., in front of a judge) for their “first appearance” hearing.

• also sometimes referred to as “initial hearing”

• must occur within a “reasonable time period” – usually within 24-72 hours of arrest

Pre-trial roles, cont’d

• During first appearances, judges:

• present (i.e., read) defendants of the nature of the charges against them

• explain to defendants their rights (e.g., their right to counsel)

• make pretrial release determinations

Pre-trial roles, cont’d

• When making release determinations, judges consider what conditions are necessary to meet the two following goals:

• ensure the defendant's appearance in future proceedings

• protect the safety of victims & community at large

Pre-trial roles, cont’d

• Judges may decide to:

• release defendants on their own recognizance (“ROR”)

• set monetary bail conditions

• order additional release conditions, including:

• no contact with the victim(s)

• refrain from alcohol use

• report periodically to pretrial services

• home detention

• electronic monitoring

Trial roles

• Following first appearances & arraignment (where defendants enter a plea after formal charging) but before the actual trial begins, the case is assigned to a judge (“trial judge”).

• Trial judges

• oversee & decide on any filed motions (e.g., motions to suppress evidence)

• may encourage the case to be resolved before trial (e.g., via a plea agreement)

Trial roles, cont’d

• During trial, judges, for example:

• make rulings on the admissibility of evidence & objections made during attorney presentations

• instruct jurors on the law they are to apply in order to reach a verdict

• ensure jurors have adequate information to reach a verdict

Post-trial roles

• Once a defendant is convicted, whether via a guilty plea or trial, judges must impose a sentence.

• The potential sentences vary depending on the crime(s) committed & the jurisdiction in which the proceedings take place.

Post-trial roles, cont’d

• Judges may decide to sentence defendants to, for example, a prison sentence or probation.

• If a probation sentence is imposed & the defendant violates probation, judges are tasked on making subsequent probation violation decisions (e.g., more stringent conditions, prison sentence, etc.).

Administrative roles

• Judges also make many decisions regarding the daily operations of the court & the processing of cases.

• Examples:

• manage courtroom & support staff (e.g., allocation of duties & addressing personality conflicts)

• scheduling responsibilities (e.g., ordering of cases & start/end times of sessions)

Court legitimacy & procedural justice

• Throughout the entire criminal prosecution, particularly during trial, judges must ensure that proceedings are conducted in a way that upholds:

• the dignity of the proceedings & 

• the appearance of fairness in the eyes of the public

• Doing so is essential to maintaining the legitimacy of the court to the general public.

• One way through which the court can maintain its legitimacy is by judges being “procedurally just.”

Video: How judges can show respect by Judge Victoria Pratt

Judicial selection

• The concepts of “judicial independence” & “judicial accountability” are at the heart of the different judicial selection methods.

• Ideally, judges should be both independent & accountable.

• The different judicial selection methods reflect varying points on the independence-accountability continuum.

Judicial independence

• Judicial independence refers to a judiciary that is “free to make decisions without interference from other branches of government or concern for the popularity or the political consequences.”

• the role of judges is to faithfully interpret laws & the Constitution

• politics or popular sentiment should not be considered

Judicial accountability

• Judicial accountability refers to “the ability of society or the government to observe the performance of judges & remove from office those performing below acceptable standards.”

• judges make law & policy on behalf of the government & people – should then be held accountable by voters

Judicial independence & accountability

• The number of hostile threats and communication directed at judges has more than tripled in the past decade, he wrote. “In extreme cases,” he added, “judicial officers have been issued bulletproof vests for public events.”

• “Public officials, too, regrettably have engaged in recent attempts to intimidate judges —for example, suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations,” Chief Justice Roberts wrote, adding: “Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others.”

Federal judicial selection

• In federal courts, judges are appointed by the president & confirmed by the Senate.

• Federal judges serve lifetime appointments.

• Proponents of this method argue that appointing judges:

• protects judicial independence – insulates judges from the pressure of public opinion & need to be re-elected

• improves the quality of the judges that take the bench – voters are unqualified to make such decisions

Selection process of federal judges

• Once a federal court vacancy arises, the president’s staff & officials search for potential candidates from the state or circuit where the vacancy is located.

• Receive input from, for example, party leaders, prominent attorneys, judges, & campaign supporters.

• It is customary for the president to defer to (“home-state”) senators from where the vacancy exists to identify & nominate candidates (“senatorial courtesy”).

Selection process of federal judges, cont’d

• Once the president nominates a candidate, the nomination is sent to the Senate Judiciary Committee (SJC).

• The SJC assesses candidates based on their qualifications & candidates appear for questioning during a public hearing.

• additional questions in writing may be asked – candidates must respond

• although rare, the SJC can hold a vote to reject candidates at this point

• home-state senators submit “blue slips” to the SJC signaling support for or opposition to nominees

• The SJC makes its recommendation & sends it to the Senate for a vote on whether to confirm or reject the nomination.

• a majority vote is required

Removal of federal judges

• For a federal judge to be removed, they must be impeached & convicted.

• A federal judge can be impeached for “treason, bribery or other high crimes or misdemeanors” through a majority vote in the House of Representatives.

• For a judge to be removed, they must be tried by the Senate & two-thirds of the Senate must vote to convict.

Removal of federal judges, cont’d

• The removal of a federal judge is extremely rare.

• In total, 15 judges have been impeached.

• 8 - subsequently removed following a conviction

• 4 - acquitted

• 3 - resigned

• Most recent example – Thomas Porteous in 2010.

• appointed by President Bill Clinton in 1994

• served as a U.S. District Court Judge for the Eastern District of Louisiana

• convicted of accepting bribes & making false statement

• disqualified him from ever holding federal public office again

State judicial selection

• These are general methods of selecting judges - small differences exist between how individual states employ these methods (in other words, some use a combination of methods).

• In state courts, various methods of selecting judges are used, including:

• Appointment

• popular elections

• merit selection plans

Appointment

• Judges are appointed by either state governors (“gubernatorial appointment”) or legislators (“legislative election”).

• Under the gubernatorial appointment method, judges are appointed by state governors & the appointments must then be confirmed by the legislature.

• used in 5 states, including NJ

• Under the legislative election method, a committee/commission reviews candidates/makes recommendations & the state legislature votes to elect.

• used in SC & VA only

• Drawback(s)?

Judicial independence concerns

• Popular elections

• Under the popular election approach, judges are elected by the people.

• The rationale behind popular elections?

• judges make law & policy, so voters should have a say

• increase judicial accountability - voters have the power to remove underperforming judges

• There are two types of popular elections: partisan & non-partisan.

Popular elections: partisan

• In partisan popular elections, candidates are affiliated with political parties (i.e., political affiliation is listed on the ballot).

• Used in 8 states, including PA.

• Drawback(s)?

• judges may become responsive to political forces (judicial independence?)

Popular elections: non-partisan

• In non-partisan popular elections, candidates campaign unaffiliated with any political party & appear on the ballot without a party designation. 

• Used by more states than the partisan popular election method – in about 13 states.

• Drawback(s)?

• lower voter turnout (vs. partisan type)

• voters base their votes on unrelated factors like candidate demographics & name recognition

Popular elections & accountability

§Concerns surrounding whether popular elections actually help with accountability.

§First, most adults know little about the performance of sitting judges or candidates, so voter turnout is low, and those who vote do so with minimal knowledge about the qualifications of candidates.

§Second, judges are routinely appointed rather than elected.

§when there’s a midterm vacancy, interim judges are appointed either by the governor or through a merit selection process

§the appointed interim judge is allowed to run for re-election once the original term ends

§often, judges are not challenged (i.e., run unopposed), resulting in their re-election

Merit selection plans

§Also referred to as the “assisted appointment” or “Missouri Plan” method.

§First used in MO in 1940.

§Most commonly used state judicial selection method — in about 22 states, including DE & MD.

Merit selection plans, cont’d

§Merit selection plan process:

§a committee/board chosen by the state bar and or executive branch evaluates candidates based on their legal abilities & recommends several candidates to the governor

§then, the governor appoints one of the recommended candidates

§once the term of the appointed judge ends, a “yes-no” retention election is held

§voters determine whether or not the judge should remain in office for another term

§majority yes-vote is needed for retainment

§if not retained – the merit selection process is repeated

Drawbacks of merit selection plans

§politics infiltrate selection committees

§accountability-related concerns

§low voter turnout

§overwhelming majority (~99%) of judges are re-elected (i.e., retain their positions)

Judicial accountability

§Popular & merit-based selection systems are based on the premise that voters can hold poorly performing judges accountable.

§For judges to be held accountable & voters to make informed decisions, voters must be provided with adequate information about the quality of judges.

Judicial Performance Evaluations (JPEs)

§To inform voters about the quality of judges, some states rely on Judicial Performance Evaluations (JPEs).

§JPEs are assessments of, for example, judges' legal ability, integrity, and communication.

§These evaluations help voters better assess the quality of candidates.

§JPE programs have been found to increase voter participation & judicial accountability (e.g., removal of judges with poor evaluations).