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58 Cards in this Set

  • Front
  • Back
Pretrial Process
-At each stage, key decisions are made that move some defendants to next stage and FILTER others out.
- ideally force prosecutors and judgest o eview the available evidence and dismiss unnecessary charges against innocent
Pretrial Process Overview
(crime-arrest-preliminary hearing/ grand jury- arraignment)
and then.. from Arraignment- to motion- to pre trial detention- to bail;ror, - to pretrial realities
Pre-trial realitites
-bail hearings can occur at almost any point
- plea negotiations can occur at almost any point, depending on the evidence, confidence, etc. of both sides.
- the first formal meeting between the prosecutor and the defendant's attorny
- a formal court apperance in which the charges against the defendant are read, and the defendant, advised by his or her lawyer, enters a plea of either guilty or not guilty
-an application to a court requesting that an order be issued to bring about a specific action
-defense attorneys use pretrial proceedings to challenge the prosecution's evidence
(ex. the defense may seek an order for the prosecution to share certain evidence)
pretrial detention
-when crime is serious, crime is violent, person is a flight risk, or cannot afford to make bail
- studies in philly and NYC have raised questions about the need to hold most defendants in jail
-"the psychological and economic hardships faced by pretrial detainees and their families can be major and prolonged"
Alternatives to Pretrial Detention
Bail, ROR, citations
-a judge chooses an amount of money to be paid as a condition of pretrial release to ensure that the accused will appear in court as requires
-no legal right (the 8th am. forbids excessiveness)
Bail Problems
judicial discretion, lack of time, critics argue that it discriminates against the poor
The Bail Reform Act (1984)
authorizes preventative detention; upheld in united states v. salerno and cafero
Bail Bondsmen
private business people who are paid fees by defendants who lack the money to bail. state licensed and choose own clients.
Release on Recognizance
pretrial release granted on the defendants promise to appear in court. The judge believes that the dfenedants ties to the community guaranteee that he or she will appear
- nyc studies, only 15% failed to appear
a written order or summons, issued by cop, directing an alleged offender to appear in court at a specific time to answer a criminal charge
Plea Negotiation
a plea agreement is a guilty plea given by a defendant (rep by lawyer) to the prosecutor (who reps the state) in exchange for a previously negotiated agreement about penalties and punishment. This agreement must be accepted by a judge in order to be legally binding.
Plea Bargaining/ negotiation
emphasizes that the plea process is a set of exchange relationships among the prosecture, the defense, defendant, and sometimes the judge.
-each actors have their own goals and find success in the outcome
plea bargain vs. plea agreement
plea bargain may be misleading, often not a good deal for one or both sides.
-each side gives up and receives something in return for the agreement ( ex defendant may decrease sentence and state increases control of criminal).
-the "exchange" is more likley to be uneven than even, favoring whichever party has the upper hand.
examles of uneven exchange
- the prosecutor has the greater strength and power, charges can be increased to scare the defendant inot pleading guilty
- a high level operative in an organized crime group may be able to obtain a minimal sentance and punishment, despite heinous crimes, in exchange for sharing damning and damaging information about others
why people plead guilty
-dominance of the "informal court working group" made up of the prosecutre, defense attorney, and even judge, over the formal adversarial justice model
the greaty efficiency pleas give to the CJ stystem
value to actors as individuals and value to the system
- the current cj system, and court system in particular, could not work without pleas; it would collapse uner the pressure of every case going to trial
criticisms of plea bargaining
1.defendants give up some constitutional rights
2.reduces society's interest in appropriate punishments for crimes
3. hidden from judicial scrutiny
4. breeds disrespect and contempt of the law
5. unust to those who assert their right to a trial (i.e, federal sentencing and two-pt deduction for guilty plea
6. innocent people will plead guilty to acts they did not commit
7. public perception of lax justice or "getting off easy" often not true
criminal trials
-although the vast majority of criminal sentences result from a plea, a jurty trial for a criminal charge is a fundamental right in U.S law
- trials are, by definition and design, adversarial; the us criminal law system uses an adversarial process
-despite the public belief, criminal trials are the exception, not the rule, as a resolution of a criminal case
Overview of Trials: exceptions, not the norm
juries, jury trial, the trial process, evaluating the jury system
Juries perform six vital functions
1. prevent government oppression by safeguarding citizens against arbitrary law enforcement
2. determine whether the accused is guilty on the basis of the evidence presented
3. represent diverse community interests so that no one set of values or biases dominates decision making
4. serve as a buffer between the accused and the accuser
5. promote knowledge about the criminal justice system by learning about it through the jury duty process
6. symbolize the rule of law and the community foundation that supports the criminal justice system
Jury Pool
those called to jury duty and who arrive in court
Voir Dire
questioning the juries
Theoretical Goal of Juries
neutral jury; real goal: each side wants a jury sympathetic to their side or arguments
Two reasons for rejection
Challenge for cause (bias) and peremptory challenge.
Peremptroy Challenge
the dismisal of jurors without stating cause for doing so
Batson V. Kentucky
Prosceturs can not use peremptory challenge based on race, (ultimately led to gender, ethnicity,)
Miller-El V. Dretke
is a decision by the Supreme Court of the United States that clarified the constitutional limitations on the use by prosecutors of peremptory challenges
Juries continued
-Historic and conemporary problems of REPRESENTATION; who is on, and who is off, juries
- most of the concerns regarding unconstitutional exclusion involve race, but also involving other factors like gender, religion, etc.
-manifests at various stages of jury selection
- for jurisdiciton s that allow findings of guilt with less than unanimous juries, minority opinion can also be excluded
challenge for cause
removal of a prospective juror by showing that he/she has some bias or some other legal disablilty.
Jury Trial
trials are based on the idea that the prosecution and defense will compete as adversaries before
- the rules of criminal law, procedure, and evidence govern the conduct of the trial
- the judge sees to it that the rules are followed and that the jury impartially evaluates the evidence and reflects the community's interests
-in a jury trial, the jury alone evaluates the facts in a case
Juries: Facts & Controversies
variations in juy size and unanimity allowed by different states.
-jury nullification
- convicting the innocent
The Trial Process
8 steaps
1) selection of the jury
2) opening statements by prosecution and defense
3) presentation of the prosecution's evidence and witnessses
4) presentation of the defense's evidence and witnesses
5) presentation of rebuttal witnesses
6) closing arguments by each side
7) instruction of the jury by the judge
8) decision by the jury
Defenses to crimes
- a criminal defense is a legal response to a criminal charge
-the prosecutor has the burden of proof to prove the defendant GUILTY BEYOND REASONABLE DOUBT, the standard used by a jury to decide whether or not the prosecution has provided enough evidence for conviction
- the defense can/will try to undermine the prosecutors proof and introduce reasonable doubt regarding one or more elements of the crime
Defenses fall into two broad categories
1. denial of wrongdoing
2. recognition of wrongful act or consequence but legally acceptable explanation in mitigation.
Denial of wrong doing
-denial of some or all of the elemtns of a crime
-absolute denial- "i didn't do it"
affirmative defense example
"i did it but im not legally culpable" i.e. distinction between actus reus and mens rea.
Affirmative defenses against crime reasons
for those who go to trial, the majority Do Not usse
- the defendant has the burden of proof for an affirmative defense
-absence of mens rea does not guarantee a verdict of not guilty in every case
affirmative defense "reasons why"
-self- defense
- entrapment
-duress (coercion)
-mistake of fact (ignorance)
-diminished capacity
ddiminished capacity
immaturity, developmental disability; lack of mental capacity
mental illness/insanity
frequencey and succes of use; public image v. reality
- how widely or narrowly defines is that statue? states have begun to define enw categories. eg. guilty but mentally ill.
-narrow definiiton in texas
trial v. appeal
a request to a higher court that it review actions taken in a trial court
- an appeal is based on a claim that one or more errors of law or procedure were made during the investigation, arrest, or tiral process
-trials deal with facts and law, appeals only deal with law (legal challenges, allegatoins of legal erros that substantially affected the outcome.
prisons matter
-increasing relevance of prisons in the US
- prisons reflect and reinforce poverty and marginality
-prison cultures influence the outisde
-prisons may exacerbate crime
-effects and legacies of imprisonment
American Imprisonment
-huge racial distortion
-woman are fastest growing group to face incarceration
-mostly blacks
-expanison in incarceration simultaneous with the decline in rehabilitation
-major variation
Us Prisons. vs the World
marginality, poverty, numbers and policies they relfect
Prisons refelct and reinforce poverty and marginatliy
"most prisoners come from the poor, the minority groups, the uneducated, the unemployed, the mentally il.. Prison is the magnifying mirror which reflects and enlarges the unresolved social problems of the society which it serves."
Prison Cultures Influence the Outside
1.Soviet union - russia
2. South africa and Robben island
3. Saggy Patns
4. Egypt
Soviet union to Russia
-oleinik argues that in Soviet prisons, a key position of power were inmate leaders called the "theif in law."
- the theif-in-law's job it was to "maintian order" based on the prisoners illicit norms
-this position migrated into the mainstream soceity, first to provide oversight in the informal market and later in the post-Soviet economy
South Africa and Robben Island
toyi toyi, negotiation
- Thought line of thinking for 9/11 began in prisons of Egypt.
- Torture
-Nurtured a movement
- sayyed qutb, a leading islamist intellectual, suffers in prison fomred passion play for islam
- Qutb's writings in prison smuggled out to become a core islmaist manifesto for emerging movement
-from prison, qutb had been able to regenerate the secret apparatus
Prison may exacerbate crime
Children with a parent in prison are much more likely to commit crime themselves
- crime is often cirbulre, victims become victimizers
( abused child= violent adults)
-although victims do not always become perpetrators, it is rare the serious perpetrator was not also a victim
especially important mechanism of increasing crime (ex. aryan warriors in nevada)
Prison Issues
Social and Human costs
frequent legal restrictions and almost universla unofficial barriers- effect on jobs, public housing,a nd the right to vote
Undermining democracy
-racial inequality and hostility
-exclusion from full citizenship
What do Prisons Do?
-lower levels of crime with lower levels of imprison ment
-most ppl think prisons are necessary for violent, serious, and repeat offenders.
-most poeple dont realize how many non-violent inmates we have