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CRJU 313 (3)
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Lecture 2

CRJU 313 Lecture 2: CRJU 313 - Exam 2

39 Pages
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Department
Criminology and Criminal Justice
Course Code
CRJU 313
Professor
Leasure

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Description
Chapter 5 15:44 Prosecutors Overall job Represent the state in criminal trials Seek justice Not just to convict Has the most power in the criminal justice system Power through discretion State vs. Federal Federal Appointed When a new president takes office, most are let go Problems with this? Possible lack of experience They have autonomy, so they don’t have to worry about public pressure State District attorney Elected Usually a 4 year term Problems with this? Not everyone votes They are trying to get reelected, so they are looking to appease the public At will of the people Could be good or bad Assistant attorneys What kind of attorneys are they? Just out of law school Not for the money To get trial experience Horizontal model vs. vertical model Horizontal model When multiple attorneys are applied to one case, but each has a different stage in the case 1 lawyer will handle arraignments 1 will hear motions of evidence 1 will handle the specific trial Usually used with lesser offenses Vertical model Every lawyer will work on the complete case You will handle the case from arraignment to trial Usually used with more serious offenses Civil asset forfeiture Test: You can seize property from a crime if: 1. They either made proceeds from the crime 2. Or they used it in the crime Before arrest duties: Interaction with police The police will ask the prosecutor if they have probable cause The prosecutor will tell the police what kind of evidence they will need at trial After arrest duties: Screening cases to determine which cases to prosecute Of those that are arrested, 50% to 1/3 are actually prosecuted These decisions cannot be reviewed In rare circumstances, they can be if race was a determining factor (discrimination) To protect from intimidation/corruption Decisions not to prosecute: Reasons: 1. Money Budgetary concerns What is used to determine whether or not to prosecute? 1. Nature/seriousness of the offense Ex. It really isn’t that important to prosecute someone for being intoxicated in public But if you murder someone, you are more likely to be prosecuted Discretion is used mainly with the lower level cases 2. The intent of the defendant Reckless and negligent are up to discretion Criminal record Ex. If you have been arrested for being drunk in public 10 times then they will probably intervene Culpability How responsible they are 3. Likeliness of conviction Quality/amount of evidence Is there a confession? Are there victim statements? Are they believable? Are there eye witnesses? Is there physical evidence? ABA specifically enumerated ethical standards: In deciding whether to bring a charge 1. Reasonable doubt If the prosecutor has reasonable doubt about the likelihood of guilt, they don’t have to bring a case to trial 2. The extent of the harm caused Ex. While assault is harmful and offensive touching, throwing a ketchup packet at someone does not deserve a court case The prosecutor may determine that being arrested was deterrence enough 3. Disproportionate punishment If the punishment is disproportionate to the offense, then the prosecutor can choose not to bring the case to trial Ex. If there is a law stating that if you steal 3 times you will go to jail for life, and the first two times someone stole a car but this time they stole a pizza, the prosecutor is not likely to send a person to jail for life for stealing a pizza 4. Improper motive If the prosecutor believes that the plaintiff has an improper motive for bringing the case, then they can choose not to bring the case to trial 5. Reluctance of the victim to testify Usually referring to assault Does not apply to domestic violence cases The prosecution will still try the case 6. Cooperation – most important part of being a prosecutor (gold standard) Ex. If someone is caught with a ton of coke in their car, but they give up someone who you catch with 500 tons of coke, you can let off the person who gave up the bigger criminal 7. Extradition If they have charges for the same thing somewhere else, you can decide not to charge and just let them be extradited Ex. If you catch someone driving with a suspended license but you find out that they are wanted for manslaughter in New York, you can just extradite them back to New York Deciding which crimes to prosecute: 1. Charge high Initially charging someone with the highest crime possible Ex. You cannot charge someone with involuntary manslaughter, and then come back and decide to charge them with murder 1 2. Plea bargaining Excepting a guilty plea before a trial You want to charge as many charges and as serious charges as possible, in order to have more leverage in plea bargaining Only about 3-5% of cases go to trial, 95% are plea bargained Problem with this: Our system is set up so that you will be judged by a group of your peers and in a fair trial Reason: The processing time is already 18 months Also, saves money Strength of the case: If the case that you have is shaky, the prosecutor may charge for lesser crimes in order to get a deal If the case is rock solid, the prosecutor may charge for the highest possible, and convince the person that they will also get the max in court 3. Disclosure of evidence The prosecutor does not have to give over all of the evidence They only have to give the evidence that can prove innocence 3 classes of evidence that must be given over: 1. Material (physical) evidence Ex. Murder weapon, witness interviews, DNA tests If it involves lab evidence, the technician who did the testing must be present at the trial 2. Exculpatory evidence Evidence that can tend to show innocence or guilt Case: Brady v. Maryland Stands for the proposition that the prosecution must hand over exculpatory evidence if this evidence is considered material Case: U.S. v. Bagley Material means that it is material if there is a reasonable probability that the outcome of the proceeding would have been different if they had had that evidence The first name mentioned is the one appealing Case: Kyles v. Whitley If the police neglect to give exculpatory evidence to the prosecution, the prosecution is still charged with knowing about that evidence Supposed to prevent unethical behavior of the police Ex. Even if the police are sure that the defendant will get off because of the evidence, they still have to hand it over because the case will be thrown out if this is discovered 3. Impeachment evidence Anything that would show that a witness is not credible 1. Conflicting testimony 2. Prior negative relationship with the defendant Failure to turn evidence over: Purposeful conduct Can be used to overturn the conviction In appellate court Accidental conduct There will be a mistrial What will happen to the prosecutor? Definite if purposeful, possible if accidental They may be reprimanded and reported to the Bar They can ever be de-barred Power through discretion What gives prosecutors this power? Mandatory sentencing laws They take the power away from the judge and give it to the prosecutor Example: 3 strikes law They can decide whether or not to charge under this statute Bordenkircher v. Hayes Kentucky (habitual crime law) Hayes passed a bad check It was an $88.00 check This would have been his third offense under this statute During plea bargain negotiation, the prosecutor offered 5 years and no habitual crime law, but Hayes said no The prosecutor got mad and decided to charge him under the habitual crime law statute Does this show that the prosecutor had too much power? Technically legal But extreme Not overturned You can use whatever power you want as a prosecutor during plea bargaining Blackledge v. Perry Perry was already in prison and got into an altercation with another prisoner Before he stands trial for this, the prosecutor offers to lower the offense to a misdemeanor if he admits to the crime The prisoner gets cold feet and asks for a trial denovo, and technically appeals the case This angers the prosecutor so he charges the prisoner again, but this time with a felony He is reconvicted for the felony and given 17 more years for the assault This impinges on the right of the prisoner to appeal Overturned Once the case is finalized, the prosecutor can no longer use discretionary power Chapter 6 15:44 Defense Attorneys Chapter 6 15:44 Overall job Defend Right to a free attorney Argersinger v. Hamlin Indigent defendants have a right to an attorney at a critical stage in a trial when incarceration is possible Have to actually not be able to afford the attorney Scott v. Illinois You have to be represented by an attorney for any charge that could impose incarceration unless you knowingly and voluntarily waive that right A judge typically will not want this to happen Who pays the attorney fees in civil law suits? You always pay for your own attorney, no matter what happens What is a critical stage? Part of the process Any time when a defendants rights could be substantially affected Specific circumstances Line up? If it is pre-indictment, you are not entitled to indigent defense If it is post-indictment, you are entitled to indigent defense Interrogation from the police? If it is a custodial interrogation, you are entitled to indigent defense Chapter 6 15:44 Custodial = you are not allowed to leave if you want Outlined in Miranda v. Arizona If it is non-custodial interrogation, you are not entitled to indigent defense Preliminary hearing? Appeals? You are entitled to indigent defense for your first appeal Habeas corpus? Appealing sideways to a federal court You are not entitles to indigent defense in this circumstance 3 different types of indigent defense: 1. Public defenders This is their actual job, so this is all that they do You do this because you want to do it Your case load is more and your pay is less But the case exposure and experience is better 2. Contract Two types: 1. Fixed price There is a certain amount of time with a fixed price where a certain firm will handle all of the indigent cases for that area Problems with this: Chapter 6 15:44 The less time they spend on these cases, the more money they will make 2. Per case Lawyers will get paid a certain amount per case that they take Ex. $1,500 for felonies and $500 for misdemeanors People bid for this and they are usually held to those bids Unless there is an unusual or extreme case Only applies to representation fees If you need an expert witness or a special test, you petition the state for that money 3. Assigned (appointed) counsel These are private attorneys that are put on a list and randomly assigned certain cases Generally, they take these kinds of cases because they need the money Average pay for a lawyer = $250 an hour Usually higher in-trial Which is the best? If you want to get out of jail completely Private If you are going to jail and want to get a better sentence Public Affective assistance Not only are you entitled to an attorney, but you are entitled to a goof one McMann v. Richardson Chapter 6 15:44 But what is the definition of this? Strickland v. Washington Can up with a 2 pronged test to determine effectiveness 1. Was the attorneys performance deficient? Was this below the objective standard? Was it reasonable? 2. Did the attorneys performance so bad that they hurt the defendants chances of winning the trial? Was it prejudiced? Presumption You have to review these claims with the presumption that they weren’t deficient and that they knew what they were doing There is a circumstance where you don’t have to show the second prong If the prejudice was so extreme that it was impossible not to hurt the trial U.S. v Cronic Decided at the exact same time that Strickland was Picking and changing lawyers Indigent Do you get to pick your indigent defense? No Can you change your indigent defense? Yes, but you must have a very good reason This will most likely annoy the judge Chapter 6 15:44 Private You can change and fire your private attorneys whenever you want U.S. v. Gonzalez-Lopez Representing yourself Pro Se Latin term for this Faretta v. California Knowing, intelligent, and voluntary waiver Lawyers and judges will push you not to do this Even if you are a lawyer, it doesn’t mean that you are an expert in every part of the law Relationship between the lawyer and the client Rules come from the Model Rules of Professional Conduct These are a guideline, though each state may have different versions of the rules Rules: 1. Confidentiality (1.6) The most important component to the lawyer-client relationship Why? If the client does not feel like they can share everything, then surprises at trial could ruin the case How strong is this? People v. Belge The people thought that if you find a body, you should have to report it Chapter 6 15:44 Under a health code violation The father of one of the victims even begged Belge to tell him where his daughters body was Belge felt that confidentiality should be so strong, that he wouldn’t tell anyone where the bodies are Even after his client was convicted Initially he was convicted, but there was an appeal and the conviction was overturned This case shows just how strong confidentiality between a lawyer and a client needs to be There would have been punishments if he had told someone 1.6 Starts out by saying a lawyer “may” report something in certain circumstances In most jurisdictions, you don’t have to Circumstances: 1. If you are reasonably certain that your client is going to kill someone or substantially harm them Under a subjective standard Not necessarily what a reasonable person would think, but if the lawyer thinks it, then that is good enough 2. If you are reasonably certain that your client is going to cause substantial financial harm to someone else Standards: 1. Things that are 100% up to a defendant Deciding how to plead Pleading guilty or not Whether or not to accept a plea bargain Waiving a jury trial Chapter 6 15:44 Whether to appeal 2. Strategic things that a defendant can rely on their lawyer to do Motions Deciding which witnesses to call Use of expert witnesses Selecting juries Can you put a client on the stand if you know that they are going to commit perjury (lie)? Nix v. Whiteside In the three months leading up to trial, the defendant claimed that he shot someone who was only using his fists, but then the day before the trial, the defendant claimed that he saw something metallic The lawyer decided to report that his client was going to lie (told the judge) The court did not find that he did anything wrong by choosing to report it This is a time where you must report 2. Conflict of interest (1.7) As a criminal attorney, can someone represent two defendants on the same trial Problems: Especially in a drug trial, your clients best out may be to snitch on someone else If this is going to happen, there has to be 100% no way where this could happen Example: White collar crime Board members Generally dissuaded in criminal law In civil law, this happens all of the time Most common example: Class action law suits 3. Withdrawing (1.16) Repugnant If the conduct is so repugnant, that there is no way you could give the client adequate representation, then you may withdraw from representing a client Has to be extreme, and you have to prove it Chapter 7 15:44 Judges Chapter 7 15:44 3 processes how judges decide cases: 1. Formalism Early on-1920’s The judge is seen as more mechanical The law is 100% clear and the judge should apply the law as he sees fit There is not supposed to be interpretation Strict application of the law Example: Regina v. Dudley-Stevens 3 guys are on a lifeboat and they are stuck there and decide that they must kill the youngest and eat him in order to survive 2 days later, a boat comes by and picks them up What should a judge do in this circumstance? Convict, because it is the law The judge sentenced them to death, but ultimately the Queen pardoned them 2. Social 1920-1980ish Judicial activism Seen as a judge who makes law (acting as a legislature) Example: This kid lived with his Uncle and the uncle willed everything to him Chapter 7 15:44 They got into a fight and the kid killed the uncle to keep him from taking him out of the will The judge made a law that if you kill som
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