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132 Cards in this Set
- Front
- Back
Which amendment states, "in all criminal prosecutions, the accused shall have the Assistance of Counsel for his defense"? (Federal government had addressed rights of indigent defendants in 1930's)
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6th Amendment
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Which Supreme Court case is being described:
-Requested a court appointed attorney and was refused; -Supreme Court agreed |
Gideon v. Wainwright (1963)
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What are some characteristics of Gideon v. Wainwright (1963)?
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-Indigent defendants have the right to court appointed counsel
-Applies in state courts; -Expanded the legal meaning of right to counsel; -First major decision of the Warren Court’s revolution in criminal justice |
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What are the issues of right to counsel that were addressed by the Court?
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-Non-felony criminal prosecutions
-Stages of the criminal process -Ineffective assistance to counsel -Self-representation |
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(Stages of the Criminal Process) The 6th amendment applies to all criminal prosecutions. The Supreme Court coined the "Critical Stages" Test in: Mempa v. Rhay, Brewer v. Williams, Rothgery v. Gillespie County, and Missouri v. Fry. What was the outcome of Mempa v. Rhay?
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The defendant is entitled to representation at every stage in which substantial rights may be affected and once adversary proceedings have begun
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(Stages of the Criminal Process) The right to court-appointed counsel in the pre-trial stage is more limited. What is the right granted for?
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-Custodial Interrogations
Miranda v. Arizona (1966) -Police Lineups Kirby v. Illinois (1972) |
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(Stages of the Criminal Process) Regarding the trial stages, which case involved the competent advice on a plea offer?
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Missouri v. Fry (2012)
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(Stages of the Criminal Process) Regarding the trial stages, which cases involved the right to appeal (appointed counsel)?
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-Douglas v. California (1963)
-Ross v. Moffitt (1973)- secondary appeals |
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True or False: States have allowed legal assistance for death penalty appeals
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True
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What is considered the criterion for effectiveness?
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Objective Standard of Reasonableness
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When must appellate courts reverse their decisions?
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If proceedings were unfair and the outcome would've been different if counsel had not been ineffective
(Few appellate court reversals on these grounds) |
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Which 6th amendment right do defendants have when they must show the judge their ability to conduct the trial, and standby council is available during the trial?
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Self-Representation
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What is Latin for on his or her own behalf?
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"Pro se"
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What are the three systems in which indigents are provided attorneys?
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-Assigned counsel
-Contract systems -Public defender |
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Which of the three systems are attorneys appointed by the judge on a case-by-case basis?
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Assigned counsel
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Which of the three systems are attorneys hired to provide services for a specified dollar amount?
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Contract systems
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Which of the three systems is a salaried public official representing all indigent defendants?
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Public defender
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What are some characteristics of assigned counsel?
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-Most common in small counties
Criticisms: -Least qualified attorneys -Inadequate pay |
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What are some characteristics of contract systems?
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-Most common in small counties
Criticisms: -Lower standard of representation due to bidding -Private bar no longer plays an important role in indigent defense -Found unconstitutional in Arizona |
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What are some characteristics of public defenders?
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-Public or private nonprofit organizations representing indigents
-Funding occurs at the state or local level |
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What are some proponents and critics of public defenders?
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Proponents
-Devote more attention to clients -More experienced, competent counsel -Continuity and consistency Critics -Tied too closely to the courtroom workgroup -Workloads are too great |
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What are some frustrations of the job dealing with judges?
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-Heavy caseload
-Administrative problems -Decisions are limited by the system -Called a politician, administrator, bureaucrat, and lawyer all in one -Well paid lawyers make more than the judge -Judges are not principal decision makers in the process |
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What are the varying roads to a judgeship?
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-Formal and informal procedures are used for appointments
-Executive appointments -Partisan election (party affiliation) -Non-partisan election -Merit selection (Missouri Bar Plan) |
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True or False: More than 1/2 of all states elect judges
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True
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True or False: Some elections are partisan, while other are non-partisan
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True
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What are some characteristics of the election of judges?
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-Voters can be uneducated and disinterested
-Few lawyers wish to challenge a sitting judge -Incumbent judges have an advantage -In partisan elections, judges have to win party support |
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In an executive appointment, how are all Article III federal judges selected?
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By executive appointment
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In an executive appointment, who has the power to nominate judges with the advice and consent of the Senate?
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The President
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In an executive appointment, who does the President submit the judges name to?
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The Senate
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What is the outcome of an executive appointment?
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It unusually results in the judge belonging to the president's party and being active in politics
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What considers to remove politics from the courts?
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Missouri Bar Plan (1940)
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What involves the establishment of a judicial nominating group, may involve Gubernatorial appointment with a later popular or retention election (formalizes the role of legal profession), and also includes citizen input?
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Hybrid system
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What are characteristics of diversity in the judiciary?
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Females, non-whites, both Republicans and Democrats are now integrating into the courtrooms
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True or False: There is an increasing number of female judges appointed and elected. Decisions and opinions of female judges are not significantly different than their male peers
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True
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What is used as the state idea to review complaints about judges?
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Judicial conduct commission
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What Texas agency is used to address judge's misconduct issues?
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State Commission on Judicial Conduct
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What is the Judicial Conduct and Disability Act of 1980?
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-Allows for impeachment and removal of federal judges
-Uses the judicial councils apart of the U.S. Court of Appeals to look at complaints -Complaints sent to Judicial Conference can start impeachment process through the House of Representatives -Addressed in Article III of the Constitution |
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Who handles the trial for impeachment?
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The Senate
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How many votes are required for removal from office?
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2/3 vote
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True or False: In 1986, a 12 person impeachment committee was established to receive evidence and hear testimonies
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True
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Who studied how the Judicial Conduct and Disability Act was being implemented, and added new mandatory rules for improving consistency and rigor of disciplinary processes?
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Breyer Commission
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Compared to the average citizen, what are some characteristics of defendants?
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-Significantly younger- 53% (under 35)
-Overwhelmingly male- 82% -Disproportionately racial minorities- 71% -Under CJ supervision at time of arrest- 31% -Come from broken homes -Less educated -More likely to be unemployed -Less likely to be married |
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True or False: Overall rates of female offenders in the system has been increasing in recent years
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True
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The more poverty in a community, the higher amount of crime. What term have sociologists termed to describe groups who have few skills to be successful in our society?
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Urban underclass
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What are some issues for defendants in court?
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-Representation of counsel (6th amendment rights, pro se defendants, stand by counsel)
-Competency to stand trial -Mental health issues -Social media impact on some cases |
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What are some frustrations in coping with the process?
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-Trial delays
-Long waits -Lost wages -Fear of the defendant and the defendants associates -A sense of indifference on the part of criminal justice personnel |
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Lack of cooperation from victims and witnesses is due to?
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-Legal cynicism
-Fear of retaliation -Witnes intimidation |
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What is a culture orientation that the law and courts are not legitimate and do not ensure public safety?
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Legal cynicism
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What are threats of violence and/or property damage?
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Witness intimidation
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What are some special victim issues?
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-How credible is the victim?
-What is the relationship between the victim and the defendant? -Does the victim want the charges to be dropped? -Does the victim chose not to testify? |
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True or False: The police now make arrests and prosecutors file charges, even against the wishes of the victim
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True
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What are some responses to domestic violence in the courts?
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-Domestic Violence Courts
-Batterer programs provide defendants with counseling and supervision from therapists -Civil Protection Orders, also called restraining orders can be requested by the victim |
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What stressed the need for balance between the needs and rights of victims and defendants?
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Presidents Task Force on Victims of Crime (1982)
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What provided federal funds for state victims programs?
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Victims of Crime Act (1984)
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True or False: (1990's - present) Advocacy groups, such as MADD and National Organization of Victim Assistance, have gained support and power to impact legislation on the state and federal level
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True
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What are some key developments in law relating to victims?
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-Victim and witness assistance programs which may provide counseling and victim services personnel to assist victims during the court process
-Victim compensation programs that provide restitution for seriously injured victims. These programs are administered on the state level |
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What is Texas's program of aiding victims called?
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Texas Crime Victims Compensation Fund, administered by the Texas Attorney General's Office
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Based on the Texas Victims Bill of Rights. Victims have the right to:
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-PROTECTION from harm and threats of harm
-have your SAFETY, and that of your family considered -be INFORMED about court proceedings -INFORMATION about procedures in criminal investigations -receive INFORMATION about the Texas Crime Victims Compensation Fund -provide INFORMATION to a probation department -have law enforcement agency PAY all costs of the examination |
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(Continued) Based on the Texas Victims Bill of Rights. Victims have the right to:
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-be NOTIFIED about parole proceedings
-be PRESENT at all public court proceedings -a SAFE waiting area before and during court -prompt RETURN of any property no longer needed as evidence -have the prosecutor NOTIFY your employer -COMPLETE a Victim Impact Statement -COUNSELING, on request |
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What consists of oral information about how the crime impacted the victim and the victim's family, many times are part of the pre-sentence investigation report, and are considered constitutional?
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Victim Impact Statements
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Which court case is being described: not a per se bar, even during a death penalty case unless it was overly inflammatory or prejudicial?
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Payne v. Tennessee (1991)
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Divides criminal offenses into 2 categories:
-Type 1 offenses, also called index crimes- includes murder, robbery, aggravated assault, and burglary for example -Type 2 offenses, less serious, but more numerous; -Collects information on the clearance rate to measure police performance -Reports only the most serious offense if more than one crime is committed on an occasion- called the hierarchy rule |
Uniform Crime Report (UCR) System
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-Is incident-based, rather than summary-based
-Information collected includes location of the crime, use of weapon, value of property damage or stolen, personal characteristics of offender |
National Incident Based Reporting System
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What limits both of these systems?
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-Voluntary nature of collection
-Not all crimes are reported to law enforcement -Federal government has recently required law enforcement agencies to comply with collection standards in order to receive federal funding |
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What is the definition of arrest?
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-Taking of a person into custody for the commission of an offense
-The act of depriving a person of his or her liberty by taking an individual into custody for a suspected violation of a criminal law |
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The scene of arrest sets the stage for what happens after the arrest. What are some examples of this?
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-The honoring of the constitutional rights of the alleged
-The strength of the evidence -The enlistment of witnesses |
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Which case is being described:
After a person is arrested, a law enforcement officer must take the arrested person before a magistrate for an initial appearance. |
Gerstein v. Pugh (1975)
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What are the reasons for an initial appearance?
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-Verify the person arrested;
-Advise of charges and rights; -Protect individuals from being forgotten; -Prevent secret or extended interrogations; -To give opportunity for bail; -To provide for prompt conclusions on lower level offenses; -To obtain a prompt judicial determination of probable cause. |
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What includes a brief description of the date and location of the offense, and the element of the corpus delicti of the crime must be included?
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Charging document
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What are the 4 types of charging documents?
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-Complaint
-Information -Arrest warrant -Indictment |
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What is supported by oath or affirmation of either the victim or arresting officer; used in misdemeanor or lower level offense?
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Complaint
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What is similar format as a complaint, but is signed by the prosecutor; used for felonies, sometimes to speed up the process rather than have a grand jury proceeding?
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Information
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What is usually issued by a Judge at the request of law enforcement; in street crimes may be applied for after arrest?
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Arrest warrant
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What is the product of a grand jury process that reviews the probable cause relating tot he defendants possible involvement in a crime; this action is requested by a prosecutor?
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Indictment
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How is the decision made that a defendant is charged?
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-Prosecutorial Control- the number of police arrests that result in no criminal charges
-Police Pressure -Court Pressure -Community Pressure |
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What is the practice of allowing defendants to be released from jail pending trial?
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Bail
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What is in the Bill of Rights about bail?
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-Bail should not be excessive (8th amendment).
-“should not be higher than reasonably calculated to ensure the defendant’s presence at trial.” |
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In determining bail and the amount, the judge may consider what three specific areas?
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-Risk of flight
-Risk to self and others -Situational justice |
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What stated that a hearing should be held to provide "clear and convincing evidence" that no condition exists to assure safety of a person or the community if the arrestee were released?
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Bail Reform Act of 1966
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What stated that holding suspects without bail if they are accused of committing a violent crime and should be locked up for community safety; can be held for 90 days if the judge finds clear and convincing evidence?
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Preventative detention
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What are the four forms of bail?
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-Release on Recognizance (ROR)
-Cash bond -Property bond -Bail bond |
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What term means release upon promise to appear, used most frequently for less serious offenses, for defendant not likely to flee, and defendants sign agreements usually after interviews with pre-trial officers?
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Release on Recognizance (ROR)
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What is when the accused posts either full amount of cash bail or a percentage with the court; money is returned after successful completion of court proceedings?
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Cash Bond
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What allows defendant to use a piece of property as collateral; property can be forfeited for non-appearance; amount of property value will be double that of bond?
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Property Bond
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What type of bond is the bail bondsperson in the business of posting the required security to the court, the fee of 10% collected by the bail bondsperson is not refundable, bounty hunters are hired by bail bondspersons to track down defendants who miss court appearances?
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Bail Bond
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What's purpose is to determine if there is probable cause to require the accused to stand trial for the offense as stated, a complaint or information has already been filed, if the defendant plans to plea not guilty, the judge will most likely have this hearing, and
this hearing is waived frequently? |
Preliminary hearing
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True or False: If a grand jury has indicted, no preliminary hearing is required because probable cause has already been established
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True
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What are the advantages of the preliminary hearing?
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-The defendant might bring about a dismissal of the charge.
-The defendant or his/her counsel may discover evidence held by the prosecution. -Limits the charges against the defendant to those existing in the complaint. |
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What is a group of person, who are a cross section of the community, whose primary purpose is to hear certain types of criminal accusations to determine if there are sufficient facts to hold the accused for trial?
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Grand jury
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What is the structure of the grand jury?
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-½ of all states hold that all felonies must be presented to a grand jury.
-Some states select the jury by random while some states use individuals who volunteer. -Grand juries vary from 12 to 23 participants; 12 in Travis county with 2 alternates. -Will serve a designated term, up to 24 months in some states |
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Who presents a formal document, called the indictment to the grand jury?
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The prosecuting attorney
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What are some issues for the grand jury related to witnesses?
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-The juries have subpoena power to require witnesses to appear before them
-If witnesses fail to appear they can initiate contempt charges through the prosecutor -Grand juries can grant immunity from prosecution |
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What is it when the prosecutor agrees not to prosecute the witness for any crimes admitted?
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Transactional immunity
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What is it when the government will not use the witness's grand jury testimony to prosecute that person; however if the state acquires evidence of a crime independently of that testimony, the witness may be prosecuted?
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Immunity
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What are controversies related to the grand jury?
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-They are the rubber stamp of the prosecutor;
-They hear only witnesses called by the prosecutor; -They may be aliened by partisan political ends |
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What is a hearing at which the accused will be asked to enter a plea (guilty, not guilty, or no contest) to the charge set forth in the accusatory pleading, implies that a plea has been aced for or taken, and felony defendants must enter their plea in a trial court?
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Arraignment
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"Statistics indicate that decisions made during early steps of felony prosecutions are much more important in terminating cases than the later activities of judges and juries."
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Attrition
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What are the three facets of discretion that explain attrition?
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-Legal judgements
-Policy priorities -Personal standards of justice |
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What is the informal and formal exchange of information between prosecution and defense: civil cases (a more long-lasting acceptance of discovery rules), and criminal case?
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Discovery
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What are some examples of discovery?
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-Lab reports
-Statements of witnesses -Defendant's confessions -Police reports |
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What are the rules requiring disclosure?
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-No general constitutional right to discovery in a criminal case
-Type of information that is discoverable varies from state to state (Exculpatory evidence and Impeachment evidence) |
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Which case is being described:
Suppression of favorable evidence violates due process where the evidence is material either to guilt or punishment; limited to admissible evidence; must be material which implies that the result of the proceeding could have been different; prosecutors have an obligation to provide evidence |
Brady v. Maryland (1963)
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Why are discovery rules important to defense attorneys?
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-Saves time
-Eases the attorney-client relationship -Can assist the defense attorney in establishing a realistic starting point for a case -Greatly encourages guilty pleas and thus aids in movement of cases |
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What prohibits the prosecutor from using illegally obtained evidence during a trial, and applies to confessions, interrogations, and pretrial confrontations such as lineups?
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Exclusionary Rule
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Which case's ruling addresses deterring 4th amendment violations (such as unreasonable search and seizures without valid warrant) by law enforcement?
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Mapp v. Ohio (1961)
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What is excluded from admission of trial?
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Fruit of the Poisonous Tree
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What are exceptions to the Exclusionary Rule?
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-Independent source of information
-Attenuation -Inevitable discovery -Good faith |
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What is evidence that is tainted by a Fourth Amendment violation is admissible if it is also obtained from an independent source— a source that had nothing to do with the underlying constitutional violation?
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Independent source of information
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What is evidence obtained in a manner that is so far removed from a constitutional violation such that the initial illegality is sufficiently attenuated ( meaning weakened), then the evidence is admissible?
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Attenuation
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What allows illegally obtained evidence to be admitted if it would have inevitably been discovered by lawful means?
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Inevitable discovery
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What is if a police officer acts in good faith reliance on a warrant that he or she reasonably believes to be valid, but later is determined to be invalid, the officer’s good faith should allow the evidence to be admissible?
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Good faith
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What was the ruling of Miranda v. Arizona (1966)?
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"He must be warned prior to any questioning that he has a right to remain silent, that anything he says can be used against him in a court of law, that he has a right to an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”
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True or False: In Miranda v. Arizona, the Supreme Court established safeguards fro individuals being interrogated by police
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True
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What four-prong test did Miranda establish to be satisfied by affirmative answers to all four questions before a suspects statements to be admitted?
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-Was the statement voluntary?
-Was the Miranda warning given? -Was there a waiver by the suspect? -Was the waiver intelligent and voluntary? |
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What is the scope of Miranda?
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-Miranda addresses procedures for custodial police interrogations.
-Miranda is based on the idea that no person shall be compelled in any criminal case to be a witness against himself. -Miranda applies only to evidence of a testimonial or communicative, not evidence such as blood or breath samples, fingerprints, etc. |
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What is issued by a neutral judge, a written affidavit, supported by oath or affirmation, asserts probable cause, describes the place to be searched, and the persons or items being seized, and meets the reasonableness clause in the 4th amendment?
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Search warrant
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What is an exception to a search warrant, involves cause that a reasonable person would find necessary to prevent physical harm to persons, destruction of relevant evidence, escape of a suspect, or some other consequences that frustrates legitimate law enforcement efforts?
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Exigent circumstances
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What are searches that are not supported by probable cause; or the obtaining of evidence outside of constitutional rights?
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Illegal search and seizure
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True or False: A defense attorney, who believes that his client was subject to a defective search, can file a suppression motion
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True
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Who makes the decision to suppress evidence in a trial, and requires a review of appellate decisions?
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The Judge
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What is the process through which a defendant pleads guilty to a criminal charge with the exception of receiving some consideration from the State?
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Plea bargaining
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What is it when the defendant pleads guilty in return for a less serious crime?
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Charge bargaining
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What is it when the defendant pleads to some of the original counts charged and the prosecutor dismisses the rest?
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Count bargaining
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What is it when the defendant pleads to the original charge in exchange for a promise of leniency in sentencing?
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Sentence bargaining
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Why do cases go to trial?
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-Negotiating is a group activity
-Parties cannot settle through negotiation -Defense attorneys recommend a trial when risks are low and possible gains are high -Defendants demand a trial -Some types of cases are more likely to go to trial: homicide, sexual assault, robbery |
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What is a jury trial penalty?
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-Magnitude of a jury trial penalty is stunningly high
-The sentence imposed on a defendant who is found guilty after trial can be over five times more severe than the expected sentence for a guilty plea -Defendants may chose to elect for judge sentencing |
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What are the defendants waiver of rights?
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-Right to trial by jury;
-Right to confront and cross-examine witnesses; -Right to compel the testimony of witnesses; -Right to testify on one’s own behalf; -Right to be free from incriminating oneself; -Right to be presumed innocent until proven guilty beyond a reasonable doubt; -Right to appeal one’s conviction |
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Which case ruling asserted that judge must have an affirmative showing that a plea is: intelligent and voluntary, the defendant committed the crime charged, and the defendant is mentally competent to enter the plea and waives his/her rights?
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Boykin v. Alabama (1969)
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What is required to accept a guilty plea, ensuring it is voluntary?
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A "Boykin"
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What is when the defendant in open court must admit to the conduct?
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Allocution
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What is the Latin phrase meaning "I will not contest it", has the same impact as a guilty plea but cannot be used in civil proceeding, and give consent for punishment as if he were guilty?
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Nolo Contendere
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What allows the defendant to plead guilty, while claiming innocence (North Carolina v. Alford), some judges refuse to accept this plea, and has the same effect as a guilty plea?
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Alford plea
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