The Administration of JusticeChapter 8

Key Actors in Court: ProsecutorPossible Names: district attorney, state’s attorney, solicitorIn large cities the day-to-day work is done by assistant district attorneys.

Jobs:• Conduct the final screening of each person arrested• Decide if there is enough evidence to support a conviction• Decided whether to charge and/or prosecute the case

– They find a crime has been committed– A perpetrator can be identified– There is sufficient evidence to support a guilty verdict.

• Determine what the charges will be if they prosecute

If they select NOT to prosecute they must ender a notation of nolle prosequi and formally dismiss the charges.

Prosecutors should not be influenced by the personal or political advantages ordisadvantages that might be involved in prosecuting or not prosecuting a case.

Reasons NOT to prosecute …1. Belief an offense did not cause sufficient harm2. Relationship between the statutory punishment and the

offender or the offense3. Improper motive on the part of the complainant4. Particular law has been violated with impunity for a long time

with few complaints5. Victim may refuse to testify6. Humanitarian concerns for the welfare of the victim or offender7. Accused person cooperates in the apprehension or conviction

of other criminal offenders8. Accused is wanted for prosecution of a more serious crime in

another jurisdiction9. Offender is on parole when he or she commits the new crime

Key Actors in Court – Defense Attorney6th Amendment – guarantees the right to the “effective assistance” of

counsel to people charged with crimesRight to Counsel – custodial interrogations, preliminary hearings,

police lineups, and trial, first appeal and probation/parole hearingsDefendant may waive the right to counsel if waiver is made knowingly,

intelligently, and voluntarily.

Is this legal? Scott Panetti

Defense Attorney Continued

Role of defense lawyer is to provide the best possible legal counsel and advocacy within the legal and ethical limits of the profession.

If you cannot afford an attorney you will receive and court appointed attorney, a public defender, or a “contract” lawyer.

*Most criminal lawyers handle a large volume of cases and struggle to earn a decent living. Most gain reputations for their ability to “fix” cases. They usually spend more time at the jail and courthouse than their offices.

Types of Defense AttorneysCourt Appointed Lawyer: lawyers volunteer to

represent indigent offenders and are appointed by judges on a rotating basis from a list (or they appoint from members of the county bar association)

Public Defenders: lawyers who are paid a fixed salary by a jurisdiction to defend indigents charged with crimes

Contract Lawyer: private attorneys bid for the right to represent a jurisdictions indigent defendants

Key Actors in Court – The JudgeNon-trial Duties: determining probable cause, signing warrants, informing

suspects of their rights, setting and revoking bail, arraigning defendants, and accepting guilty pleas

Primary Responsibility: ensure that suspects and defendants are treated fairly and in accordance with due process of the law

In the United States, judges are overwhelmingly white and male and from an upper-middle class background.

Selection methods – Election and Merit Selection; Gubernatorial appointment and legislative appointment

Judges are NOT required to be lawyers or to possess any special educational or professional trainings – many come without any practical experience in criminal law

Pretrial Stages

From Arrest through Initial AppearanceSoon after most suspect are arrested, the are taken to the police station to be

“booked.” Booking is the process in which suspects’ names, the charges for which they are arrested, and perhaps their fingerprints or photographs are entered into the police blotter.

Following booking, a prosecutor is asked to review the facts of the case and, considering the available evidence, to decide whether a suspect should be charged with a crime(s).

A charging document is prepared. There are three types:1. Complaint – outlines the offense and is supported by oath from officer or

victim2. Information – outline formal charges and evidence to support those charges3. Grand Jury Indictment – written charge by a jury that the person committed

the crime

Suspect are now defendants … defendants are brought before a lower-court judge for an initial appearance. Given formal notice of their charges, their rights, and pre-trial release conditions are set. (no more 72 hours)

Pretrial Release1. Secured Bail: a monetary guarantee deposited with the court that ensures the

suspect will appear at a later stage. You get it all back if you appear. Constitution only requires that the amount not be excessive. Bail depends on:

– Ties to the community– Seriousness of the crime– Prior criminal record– Jail conditions– Ability to pay

2. Bail Bond: professional will post it for a non-refundable fee3. Unsecured Bond: bail is set but no money is paid to the court, liable for full

amount if you do not appear4. Preventive Detention: holding suspects in jail because of the threat they pose

to society5. Release on Own Recognizance: release with a written promise to appear in

court6. Conditional Release: requires that a suspect maintain contact with a pretrial

release program

***If you do not appear … a bench warrant is issued for your arrest***

Plea Bargains@ 90% of all convictions in felony cases are the result of guilty pleas

The types of pleas:1. Defendant may be allowed to plead guilty to a lesser offense.2. Defendant who pleads guilty may receive a lighter sentence than would typically

be given.3. Defendant may plead guilty to one charge in return for the prosecutor’s promise to

drop other charges that could be brought.*Prosecutor can only recommend the plea, a judge has to approve it.

Plea’s depend on three factors:4. Seriousness of the offense5. Defendant’s criminal record6. Strength of prosecutor’s case

Neither a constitutional basis or a statutory basis for plea bargaining.

Once a defendant pleads guilty and is sentenced, the are stuck with the plea.

The JuryPurposes of trial by jury:

– To protect citizens against arbitrary law enforcement– To prevent government oppression– To protect citizens from overzealous or corrupt prosecutors and from biased judges

Appellate courts have ruled that master jury list must reflect an impartial and representative cross section of the population.

From the master list, a number of people are randomly chosen1. venire – they are summoned for service by the sheriff – 30 will be selected by a clerk for:2. voir dire - questioning by lawyers for both sides3. peremptory challenges are made reducing the jury to 12 plus 2 alternates.

Potential jurors must be:(1) US citizen; (2) resident of jurisdiction; (3) minimum age; (4) speak English.

Compensation for jury service is about $15.00 a day. [Federal gov’t pays $40.00]

Jury Summons Example

Pretrial Motions

Pretrial Motions:* Motion for discovery of evidence – to examine evidence in the possession of the prosecutor* Motion for continuance – seeks more time to prepare the case* Motion for change of venue – request to change the location of the trial to avoid hostility* Motion to suppress evidence – request that certain evidence not be allowed to be presented

The Trial

1. Opening Statements• Prosecution goes first• Then Defense2. Presentation of Prosecution Case• Evidence is presented through witness testimony and documents• PROSECUTION’S direct examination• DEFENSE’S cross-examination • PROSECTION may re-direct3. Presentation of Defense Case• The Defendant has a right NOT to put on a case and the right NOT to testify. They can NOT mention the fact that they

are not testifying.• DEFENSE’S direct examination• PROSECUTION’S cross-examination• DEFENSE may re-direct4. Closing Arguments• NOT like opening statements• ARGUES the facts that came out during the case• Prosecution goes first• Defense goes second• Prosecution has an opportunity for “rebuttal”5. Jury Instruction and Deliberations• Prosecution and Defense propose instructions for the jury

– Reminder of laws, and what to consider• Judge reads the instructions to the jury6. Jury Verdict• Guilty = JURY MUST BE UNANIMOUS• Not Guilty = JURY MUST BE UNANIMOUS• “Hung Jury” = non-unanimous, usually can retry case