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The Defense Team—Four Responsibilities Investigating Communicating Representing Negotiating Duty to defend guilty clients?!

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Presentation on theme: "The Defense Team—Four Responsibilities Investigating Communicating Representing Negotiating Duty to defend guilty clients?!"— Presentation transcript:

1 The Defense Team—Four Responsibilities Investigating Communicating Representing Negotiating Duty to defend guilty clients?!

2 Attorney-Client Privilege Ensure accurate and whole dissemination of facts—implied trust Client may consent to disclosure (5 th amendment rights) Scope—somewhat limited –Crimes yet to be committed Other types or privilege? –Five…

3 Six Protected Privileges Attorney-Client Doctor-Patient Spousal Teacher-Student** Parent-Child** Clergy—Sacramental

4 Adversary System—3 Features Neutral and Passive Decision-Making Presentation of Evidence Structured procedure—fairness and transparency (Rule of Law)

5 Plea Bargaining Usually after arraignmentUsually after arraignment Subject to court (judge) approvalSubject to court (judge) approval Charge BargainingCharge Bargaining –Defendant pleads guilty to a lesser charge (1 st -2 nd degree murder) Sentence BargainingSentence Bargaining –Defendant pleads guilty in exchange for a lesser sentence (death penalty to life) Count BargainingCount Bargaining –Sub-type of sentence bargaining—burglary

6 Motivations Prosecutor –Secure a conviction Defendant –Control over fate

7 6 th Amendment Protections—3 parts “…Speedy (and public) Trial”“…Speedy (and public) Trial” –Unconstitutional if delays are unwarranted and prejudicial (Barker v. Wingo) Speedy Trial Act of 1974Speedy Trial Act of 1974 –120 days from arrest to trial Why do most trials not begin w/in 120 days?Why do most trials not begin w/in 120 days? Defendant waives the rightDefendant waives the right

8 5 th Amendment Protections 1.“(nor)…compelled to be a witness against himself” –Choice is not prejudicial –Judges are required to explain to jury 2.“(nor) be deprived of life, liberty, or property without due process of law” –Burden of proof on the state –Beyond a reasonable doubt

9 The Trial—Process 1.Jury is sworn in 2.Opening Statements 3.Presentation of Evidence 4.Closing Statements 5.Jury Instructions 6.Jury Deliberation 7.Verdict is Entered

10 Opening Statements Narrative formNarrative form Prosecution goes firstProsecution goes first Somewhat unstructuredSomewhat unstructured –No strict guidelines or limitations –May not be inflammatory –May only cover subjects reasonably expected to be part of the trial

11 Evidence—Testimonial vs. Real Testimonial EvidenceTestimonial Evidence –Lay witnesses –Expert witnesses Direct Testimonial EvidenceDirect Testimonial Evidence –“I saw Johnny shoot Billy” Must be relevant (facts vs. opinions)Must be relevant (facts vs. opinions) Real EvidenceReal Evidence –Physical objects/exhibits

12 Direct Examination No leading questions allowedNo leading questions allowed –Miss H, did you see Tess hit Ben with a baseball bat?” Instead…Instead… –Q: “Miss. H, tell us what you observed on the night of November 12 th.” –A: “I saw Tess hit Ben with a baseball bat.” –Q: “What type of bat did Tess use?”

13 Cross-Examination Leading questions are more generally allowedLeading questions are more generally allowed Limited to what was raised in direct examination.Limited to what was raised in direct examination. Re-Direct and Re-Cross are allowedRe-Direct and Re-Cross are allowed

14 End of Prosecution’s Case Motion for Directed VerdictMotion for Directed VerdictMotion for Directed VerdictMotion for Directed Verdict –Granted: judgment of acquittal is entered –Denied: Defense presents their case Defense CaseDefense Case –Not required (no burden of proof) –Will defendant testify? Rebuttal and SurrebuttalRebuttal and Surrebuttal

15 Closing Statements Defense usually goes firstDefense usually goes first Summary of caseSummary of case

16 Appeals Process & Double Jeopardy Appeals process only available to defenseAppeals process only available to defense –Limited to questions of law and procedure 5 th Amendment5 th Amendment –“nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb “Exceptions”“Exceptions” –Criminal vs. Civil Trials O.J. Simpson murder trialO.J. Simpson murder trial –Federal vs. State Trials Terry Nichols (Oklahoma City Bombing)Terry Nichols (Oklahoma City Bombing)

17 Community Corrections Missions of Community Corrections –Punish offenders –Protect the community –Reduce crime –Save money –Relieve prison crowding –Rehabilitate offenders

18 Probation and Parole ProbationProbation –Substitute for confinement ParoleParole –Follows confinement (conditions of release) –2.1 million people incarcerated (1.4m in prison) –775,000 on parole –4 million on probation

19 Probation Subject to revocationSubject to revocation Heavily Conditional (p.415)Heavily Conditional (p.415) –Meet family responsibilities –Job-holding (or education) –Chemical abstinence –Law-abiding –Treatment? –Community service/house arrest

20 Felons on Probation DrugsDrugs Property CrimesProperty Crimes Violent CrimesViolent Crimes Weapons CrimesWeapons Crimes Other nonviolent crimesOther nonviolent crimes 35%35% 31%31% 30%30% 16%16% 15%15%

21 Parole State-levelState-level Federal-level: eliminated in 1992Federal-level: eliminated in 1992 –Determinate sentencing enacted

22 Does Probation/Parole Work? Probation Successful: 59%Successful: 59% Returned to Incarceration: 16%Returned to Incarceration: 16% Absconded: 4%Absconded: 4% Other Unsuccessful: 16%Other Unsuccessful: 16% Death: 1%Death: 1% Unknown: 4%Unknown: 4% Parole Successful: 47%Successful: 47% Returned to Incarceration: 38%Returned to Incarceration: 38% Absconded: 9%Absconded: 9% Other Unsuccessful: 5%Other Unsuccessful: 5% Death: 1%Death: 1% Unknown: N/AUnknown: N/A

23 History of US Prisons PennsylvaniaPennsylvania Penitentiary: PenancePenitentiary: Penance Religiously-based (Puritans and Quakers)Religiously-based (Puritans and Quakers) Focus: RehabilitationFocus: Rehabilitation

24 US Prisons Today: By The Numbers Over 2 million inmates in jails and prisonsOver 2 million inmates in jails and prisons 1 of every 140 US residents is incarcerated1 of every 140 US residents is incarcerated Women are 7% of the prison populationWomen are 7% of the prison population 10% of ALL Black men between 25 and 29 are incarcerated10% of ALL Black men between 25 and 29 are incarcerated 1 in 3 Black men, 1 in 6 Hispanic men, 1 in 17 White men will go to prison at some point in their life1 in 3 Black men, 1 in 6 Hispanic men, 1 in 17 White men will go to prison at some point in their life

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27 Trial Procedures 1. Arrest/Initial Appearance –Read charges-rights reaffirmed –Appoint counsel Bail: Ensure defendant is at trial 8th amendment protects against excessive bail 2. Preliminary Hearing Evidence disclosed Is there enough evidence to proceed?

28 3. Arraignment –Enter a Plea: Guilty or Not Guilty Plea Bargaining 4. Trial –Sentence Read


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