1. Trials

2. Due Process
People accused of crimes cannot have their life or liberty taken without due process of law
Due process means that an accused person has a right
to a jury trial in public and without undue delay
to be informed of their rights and of the charges against them
to confront and cross-examine witnesses
to compel witnesses to testify on their behalf
to refuse to testify against themselves, and
to be represented by an attorney
Taken together, these rights make up the overall right to a fair trial

3. Right to a Jury Trial
The right to a jury trial in criminal cases is guaranteed by the Sixth Amendment – this applies to all federal and state courts
A jury is not required in every case – in fact, juries are not used very often
Jury trials are also not required for certain minor offenses — generally, those punishable by less than six months in prison
Defendants can also waive their
right to a jury trial and instead
have their cases heard by a
judge in a bench trial
In some states, waivers occur
in the majority of cases that
are tried

4. Jury Review
Jury panels are selected from voter registration lists or driver’s license rolls and are supposed to be generally representative of the local community
In federal courts, juries consist of 12 persons
While many states also use 12-person juries, they are not required to do this by the U.S. Constitution – the Supreme Court has ruled that only six jurors are required
Juries in federal courts must reach a
unanimous verdict before finding a
person guilty
The Supreme Court has found that
this not Constitutionally required in
state courts, but most states require
unanimous verdicts anyway

5. Jury Review
Once the potential jurors for a case are assembled, the prosecutor and defense lawyer select the members of the jury through a process called voir dire
Either lawyer can request that a potential juror be eliminated for some specific reason by using a for-cause challenge (e.g. if a juror knew the defendant or the victim in the case)
Each side also has a limited number of peremptory challenges, which do not have to be based on a
specific reason
In some cases each party hires
consultants to help them make judgments
about which prospective jurors are most
likely to be favorable to their side

6. Jury Review
The Supreme Court has ruled that attorneys can’t exclude prospective jurors from serving on a jury solely because of their race, gender, or national origin
Preventing discrimination in the selection of jurors has been a challenge for the justice system
Supreme Court decisions indicate that criminal trials with juries selected in a discriminatory manner harm the defendant,
injure the persons removed from the
jury for discriminatory reasons, and
damage society in general
In the U.S., the right to trial by jury is
considered a fundamental right
Most countries around the world,
however, do not have jury trials

7. Right to a Speedy Trial
The Sixth Amendment provides a right to a trial without “unnecessary delay,” but doesn’t define this
The federal government and some states have set specific time limits within which a case must be brought to trial
If a person does not receive a speedy trial, the case may be dismissed
Defendant often waive their right to a speedy trial because of the unavailability of an important witness or because they need more time to prepare their cases
Before dismissing a case, courts
will consider the reasons for the
delay and whether the defendant
was free on bail or in jail during
the pretrial period

8. Right to Confront Witnesses
Defendants in criminal cases have a right to compulsory process for obtaining witnesses
This means that the defendant can get a subpoena—a court order—requiring a witness to appear in court to testify
Without this basic right, defendants would have a hard time establishing a defense
The Sixth Amendment provides people accused of crimes with the right to confront (be face to face with) the witnesses against them and to ask them questions through cross-examination
Although a defendant has the right to be present in the courtroom during all stages of the trial, the Supreme Court has said that this right may be restricted if the defendant becomes disorderly or disruptive
In these instances, a judge has the power to remove the defendant from the courtroom, to cite him or her for contempt of court, or, in extreme circumstances, to have the defendant bound and gagged

9. Child Witnesses
The right to confrontation is sometimes modified for child witnesses, especially in abuse cases
Many courts in these cases install closed-circuit television cameras
This practice enables the child to testify on camera in a room separate from the
one in which the defendant is
located and reduces the
potential for additional harm
to the child

10. Do Now Answer in your notebook:
Crawford and his wife went to a man’s apartment, where a fight broke out between Crawford and the man. The man was stabbed during the fight, after which he called the police. Crawford was arrested later that night and charged with attempted murder. The police interrogated him and his wife separately. Crawford claimed that the man had attempted to rape his wife and that he acted in her defense. His wife’s story, which the police tape-recorded, did not match his. State law where he lived did not allow one spouse to testify in a criminal case against the other spouse without that spouse’s consent. Crawford did not agree to have his wife testify at his trial. However, the prosecutor played a tape-recording of what she told police. Crawford was then convicted of attempted murder. On appeal, Crawford argued that use of this tape recording violated his Sixth Amendment right to confront a witness against him because there was no way to cross-examine the recording.
In your opinion, how should this case be decided? Explain.

11. Freedom From Self-Incrimination
Freedom from self-incrimination means that you cannot be forced to testify against yourself in a criminal trial
This right comes from the Fifth Amendment and can be exercised in all criminal cases
Defense attorneys may counsel their clients not to take the stand for their own protection
In addition, the prosecutor is forbidden to
make any statement drawing the jury’s
attention to the defendant’s refusal to testify
While defendants in a criminal case have a
right not to testify, they also have a right to
take the stand and testify if they want (in
some other countries, defendants in criminal
cases are required to testify)

12. Freedom From Self-Incrimination
A defendant does not have to answer an inappropriate question if her attorney objects to it and the judge sustains, or agrees with, that objection
This is true for all witnesses, but once a defendant takes the stand, the prosecutor can use anything she says to elicit contradictory and harmful statements that can be used against her
Related to the right against self-incrimination is the concept of immunity
Being granted immunity means that a witness cannot be prosecuted based on information provided in a testimony
A person with immunity must answer all questions – even those that are incriminating
Prosecutors often use immunity laws to force people to testify against co-defendants or others involved in the crime

13. In your table groups… Take 5 minutes to discuss the following:
Suppose you are a defense attorney. What are the advantages and disadvantages of having a criminal defendant testify at trial?
If you were a member of the jury in a criminal trial, what would you think if the defendant refused to testify? Would you be affected by the judge’s instruction not to draw any conclusion from this?
If a defendant is forced to stand in a lineup, give a handwriting sample, or take an alcohol breath or urine test, does this violate the privilege against self-incrimination?
Do you think that U.S. law should be changed so that defendants are required to testify in criminal cases? Explain.

14. Do Now Answer in your notebook:
If a defendant loses a criminal case and is found guilty, she may appeal her conviction to a higher court. On the other hand, if the defendant is found not guilty, the prosecution may NOT appeal to a higher court. Why do you think this is? Do you think this is fair? Explain.

15. The Right to an Attorney
The Sixth Amendment says that “in all criminal cases, the accused shall enjoy the right to have the Assistance of Counsel for his defense”
Historically this was interpreted to mean that, except when the defendant was facing the death penalty or imprisonment for life, a defendant had the right to an attorney only if she could afford one
In 1938, the U.S. Supreme Court
ruled that federal courts must
appoint attorneys for indigent
defendants — those without
financial means — in all federal
felony cases

16. The Right to an Attorney
In Gideon v. Wainwright (1963), the Court extended the right to counsel to all felony defendants, whether in state or federal court
In 1972, the Court further extended this ruling by requiring that no imprisonment may occur, even in misdemeanor cases,
unless the accused is given an
opportunity to be represented
by an attorney

17. The Right to an Attorney
The right to the assistance of counsel is basic to the idea of a fair trial
In a criminal trial, the government is represented by a prosecutor who is a lawyer
In addition, the prosecutor’s office has other resources, including investigators, to help prepare the case against the accused
At a minimum, the defendant
needs a skillful lawyer to ensure
a fair trial

18. The Right to an Attorney
As a result of these Supreme Court decisions, criminal defendants who cannot afford an attorney have one appointed to them free of charge by the government
These attorneys may be either public defenders or private attorneys
The public defender’s office is supported by the government
The job of the public defender’s office is to represent poor people in criminal cases
Lawyers appointed by the court to handle criminal cases
for indigent defendants are typically paid less
than private lawyers hired directly by a
defendant

19. The Right to an Attorney
Some people criticize the overall quality of representation that poor criminal defendants receive in this country
These critics say that criminal
defendants with money to hire
their own lawyers have a much
better chance of being found
not guilty than do economically disadvantaged defendants

20. Criminal Appeals

21. Criminal Appeals
If the jury returns with a “not guilty” verdict, this is normally the end of the case
The state—or prosecution—cannot appeal after the defendant has been acquitted of the offenses for which he or she was tried
The Fifth Amendment’s double
jeopardy language means that
a defendant cannot be prosecuted
a second time for the same
offense after either an acquittal
or a conviction
If the verdict is “guilty,” then
the sentencing will follow

22. Criminal Appeals
Once the trial judge has entered the final judgment in the case, defendants who think they have been wrongly convicted have several options
The defendant can ask the judge to overturn the jury’s verdict and enter a verdict of not guilty, or s/he can ask the judge to set aside the jury’s verdict, declare a mistrial, and ask for a new trial
These strategies are rarely successful
The defendant can also appeal to a higher court
An appeal requests that a higher court review and
change the decision of the trial court
In the appeal, the defendant can challenge either
the conviction or the sentencing decision

23. Criminal Appeals
Sometimes the defendant will want to hire a different lawyer for the appeal
This happens because lawyers who do trial work may not specialize in appellate work
It might also happen because the defendant’s appeal may be based on an alleged violation of the Sixth
Amendment, which guarantees the right to
effective assistance of counsel
Depending on the resources available, the
public defender’s office may or may not be
available to provide assistance to indigent
defendants who wish to appeal

24. Criminal Appeals
Trial courts determine questions of fact, such as guilty or not guilty in a criminal case, and appellate courts determine questions of law
In order to win an appeal, the defendant—now called the petitioner or appellant—must convince the appeals court that there were serious errors of law made at the original trial
Appeals courts tend to defer to trial judges and are not usually eager to overturn the result of the trial
If there are legal errors of a minor nature, the outcome of the trial will not be changed
Sometimes an appeals court will say that the constitutional right of the defendant is to a fair trial, not to a perfect, or error-free, trial

25. Criminal Appeals
A defendant may also apply to a court for help by seeking a writ, which is an order from a higher court to either a lower court or to a government official, such as the warden of a jail or prison
The writ of habeas corpus — which literally means “to produce the body”— claims that a defendant is being held illegally and requests release
The writ can sometimes be used when an appeal could not be
E.g., a defendant might use a writ to argue for his innocence based on DNA testing that occurred after the trial, a point that could not be made using an appeal

26. Criminal Appeals
The writ of habeas corpus can be filed with a state court for alleged state law violations or with a federal court for alleged violations of federal law
The writ of habeas corpus gives criminal defendants the right to ask for
relief from confinement, but
filing this writ does not
necessarily mean that the
court will grant the relief

27. Do Now Answer in your notebook:
Sometimes, instead of going to prison, convicted criminals are allowed to serve “prison time” in their own home. Do you think this is fair? Why or why not?

28. Sentencing

29. Sentencing
When found guilty, the defendant will be sentenced by the judge or, in a few states, by the jury
The sentence is arguably the most critical decision in the criminal justice process
It can determine a
defendant’s fate for
years or, in some
cases, for life

30. Sentencing Options
Most criminal statutes set out a basic sentencing structure, but judges generally have considerable freedom in determining the actual type, length, and conditions of the sentence
Depending on the state, judges may choose from one or a combination of the following options:
A suspended sentence is given but does not have to be served at the time it is imposed
The defendant may have to serve the sentence later if he or she is re-arrested on another charge or violates a condition of probation

31. Sentencing Options
The defendant can be released on probation under the supervision of a probation officer after agreeing to meet certain conditions, e.g. getting a job, staying drug-free, or not traveling outside the area during the probation period
Under home confinement, the defendant is sentenced to serve the term at home
Normally, the only time this defendant can leave home is to go to work, school, or a doctor’s appointment
The defendant is sometimes required to wear an electronic monitoring device so that her activities can be observed by the probation officer

32. Sentencing Options
The defendant might be required to pay the government a fine, or an amount of money set by the court
A defendant who is required to pay restitution must make up for whatever loss or injury was caused to the victim of the crime
Under work release, the
defendant is allowed to work
in the community but must
return to prison at night or on
weekends

33. Sentencing Options
A defendant who is imprisoned must serve a term in jail or prison
Some states require that a definite sentence be given, in which case the judge specifies the exact amount of time to be served
Some states provide for an indeterminate term, in which case the sentence is stated as a minimum and maximum term, for example, not less than three years
nor more than ten years
Some judges allow defendants in misdemeanor
cases to serve short jail sentences on weekends

34. In many states and in the federal court system, judges have
Sentencing Options
If defendant is sentenced to die for his or her crime, it is called the death penalty
In many states and in the federal court system, judges have
the option of handing
down the death penalty
for the most serious
offenses

35. Sentencing Options
Many considerations must be made in the sentencing process
These include the judge’s theory regarding corrections and what he or she believes is in the best interest of society and the individual
In addition, most states authorize a presentence report
This report, prepared by the probation department, contains a description of the offense and sets out the circumstances surrounding it
The report also describes the defendant’s past criminal record; provides data on the defendant’s social, medical, educational, and employment background; and includes a recommended sentence.

36. Sentencing Options The report may also describe the harm to the victim
In many states, victims are given the opportunity to provide the judge with a statement — orally, in writing, or in some instances via videotape — about the impact of the crime
If the victim has been killed, family members are allowed to provide victim impact statements
After receiving the presentence
report, victim impact statements,
and recommendations from the
prosecuting and defense attorneys,
the judge will impose the sentence

37. Sentencing Options
Some people criticize the system of sentencing as giving too much discretion to the judge
Two people who commit the same crime may receive very different sentences, which some view as an injustice
To combat the problem of inconsistency in sentencing, the U.S. Congress passed a federal sentencing guideline law in 1988 that listed the sentences that judges were to impose for specific federal crimes
States have since passed similar laws to limit the discretion of judges in sentencing
These guidelines typically determine sentences based on the conduct and the criminal history of the defendant in question

38. Do Now
Pick up “Lessons from European Prisons” article from table by door
Read it
When finished, answer the following out loud with your tablemate (you don’t need to write anything today!):
When it comes to sentencing, are the Netherlands and Germany too soft on crime? Is America too harsh? Explain.

39. Purposes of Punishment
Over the years, the criminal sentence has served a number of different purposes, including retribution, deterrence, rehabilitation, and incapacitation
At one time, the primary reason for punishing a criminal was retribution
This is the idea behind the saying “an
eye for an eye and a tooth for a tooth”
Instead of individuals seeking revenge
society, through the criminal justice
system, takes on the role of punishing
those who break the law

40. Deterrence
Another reason for punishing criminals is deterrence
Many people believe that punishment discourages the offender from committing another crime in the future
In addition, the punishment
is meant to serve as an
example to deter other
people from committing
similar crimes

41. Rehabilitation
A third goal of punishment is rehabilitation, or helping convicted persons change their behavior so that they can lead useful and productive lives after their release
Rehabilitation is based on the idea that criminals can overcome the social, educational, or psychological problems that caused them to
commit a crime and that they can
be helped to become responsible
members of society
Educational, vocational, and
counseling programs in prisons
and jails are designed to
rehabilitate inmates

42. A fourth reason for punishment is incapacitation
This means that the criminal is physically separated from the community to protect society from the criminal
While confined in prison,
the offender does not pose
a threat to the safety of
the community

43. Parole
In most states, the actual length of time a person serves in prison depends on whether parole is granted
Parole is the release of a convicted person from prison before his or her entire sentence has been served
Depending on the state, a person might become eligible for parole after serving a minimum sentence specified by the judge or law
In other states, people automatically become eligible for parole after serving a portion of the total sentence

44. Parole Eligibility for parole is considered a privilege, not a right
Inmates may have the opportunity to go before a parole board and explain why they should be released on parole
Ultimately, parole board decides whether parole will be granted
Some inmates are never paroled
and serve their full sentences in
prison. Parole is not common in
the federal prison system and
many state systems

45. Parole
Critics of parole say that it harms the deterrence effect of imprisonment
Others believe that inmates should be evaluated periodically and released early if there is evidence that they have been rehabilitated
At the end of 2006, more than 7 million people were on probation, in jail or prison, or out on parole
This figure represents about 3 percent of all U.S. adult residents

46. Capital Punishment
Capital punishment, also known as the death penalty, is the most controversial sentence given to defendants
It has a long history in the U.S. – the first person executed for murder among settlers in America was hanged in 1630
In colonial years, the death penalty was
imposed for a number of different crimes
Gradually, capital punishment was restricted
to the most serious crimes—usually murder
and rape

47. Capital Punishment
In 1977, however, the U.S. Supreme Court held that the death penalty was an unconstitutional punishment for the crime of rape
In 2008, the Court found that a state law providing the death penalty for the rape of a child was a disproportionate punishment (it did not fit the crime) and a violation of the Eighth Amendment

48. Capital Punishment
Public protest against the death penalty gradually reduced the number of executions from a peak of 199 in 1935 to only one in 1967
For the 10 years after that, executions were halted while the courts studied the legality of capital punishment
In the 1972 case of Furman v.
Georgia, the U.S. Supreme Court
held that the death penalty as
then applied was unconstitutional
because juries were given too
much discretion in assigning it

49. States then rewrote their capital punishment laws
In 1978, the Court ruled that the new laws were constitutional as long as aggravating and mitigating circumstances
were considered
Executions soon resumed

50. Capital Punishment
As of April, state and federal prisons held more than 3,000 inmates on death row.
Of these inmates, 98% were men, 43% were white, 42% were black, and 13% were Hispanic
Since 1976, there have been 1,415 executions
27 U.S. states allow the death penalty as a form of punishment
Most of these states use lethal
injection to carry out executions

51. Do Now
Some argue that the death penalty qualifies as “cruel and unusual punishment” and is therefore in violation of the 8th Amendment to the Constitution. Do you agree or disagree? Explain.

52. Capital Punishment
In 2007 all executions were temporarily stopped when the Supreme Court agreed to hear a case that challenged lethal injection procedures as cruel and unusual punishment in violation of the Eighth Amendment
However, in 2008 the Court
decided that the use of lethal
injection was not
unconstitutional, and
executions resumed

53. Capital Punishment
Most capital punishment laws call for a two-part trial
In part one, the jury decides guilt or innocence
The defendant usually knows whether he may face the death penalty if convicted
If the defendant is found guilty, the jury decides in part two of the trial whether the defendant should receive the death penalty or a lesser punishment
Judges and juries are required to consider both aggravating and mitigating circumstances

54. Capital Punishment
Aggravating circumstances are factors that suggest the defendant deserves a more severe punishment
Examples include a gruesome murder, crimes involving children, or previous convictions of the accused
Mitigating circumstances are factors that suggest the defendant deserves a less severe punishment
Examples include the defendant’s age, lack of a criminal record, or a history showing that the victim had previously abused the defendant

55. Death Penalty Opinion Polling

56. Arguments Against the Death Penalty
People oppose the death penalty for a variety of reasons
Some oppose it on religious and moral grounds
Others argue that it doesn’t deter violent crime
The states that don’t impose the death penalty have a slightly lower murder rate than the national average
Some say that the death penalty unfairly affects may minority groups
Only 13% of the U.S. population is
African American, but 42% of inmates
on death row are African American

57. Arguments Against the Death Penalty
Some fiscal conservatives oppose it for a more pragmatic reason: the financial cost
Studies have found that cases in which the prosecution seeks the death penalty costs the government an average of $1 million more than those in which only life imprisonment is sought
Others argue that a side effect of the death penalty is that it occasionally will result in an innocent person being put to death
Since 1973, 150 death row inmates have been exonerated after new evidence revealed that someone else committed the crime

58. Warm Up
In your opinion, should the possession and use of hard drugs (e.g. heroin, cocaine, and methamphetamine) be a crime? If not, why not? If so, what punishment do you think is appropriate? Explain.

59. Warm Up
A number of democracies around the world allow their prisoners to vote in elections on the theory that this helps with their rehabilitation. In the United States, only Maine and Vermont allow prisoners to vote. Do you think prisoners should be allowed to vote? Explain.

60. Corrections

61. Corrections
When a person is convicted of a crime, state and federal governments have the right to place the offender in the corrections system
Several treatment and punishment options are available, including community corrections, halfway houses, jails, and prisons
Prisons are operated by federal or state governments
They are used to incarcerate people convicted of serious crimes, usually felonies, for which the sentence is more than one year

62. Corrections Jails are run by cities and counties
They are used by local law enforcement to detain people awaiting trial and to hold mental patients, drug addicts, alcoholics, juvenile offenders, and felons on a temporary basis as they await transfer
to other facilities
Jails also hold people
convicted of minor crimes
for which the sentence is
one year or less

63. Life Behind Bars A prisoner’s life is controlled by rules
Inmates are told when to get up and when to go to sleep
Mail and phone calls are screened
Access to radio, TV, the Internet, and books is controlled
Visitation is limited, and inmates are subject to constant surveillance and searches
Some inmates work at
prison jobs, which usually
pay very little
Others spend almost all
day locked in their cells

64. Life Behind Bars
Until the 1960s, courts had a hands-off policy toward prisons
Inmates had few, if any, rights and prison officials could make almost any rules they wanted
As a result, harsh treatment, solitary confinement, and beatings were all fairly common
Over the years, courts have established and enforced some prisoners’ rights, yet in recent years the U.S. Supreme Court has said that people who enter prison must give up certain rights
Still, inmates do retain limited versions of some rights after entering prison
These include the right to be free from cruel and unusual punishment, the right to freedom of religion, the right to due process, the right to medical treatment, and the right to meaningful access to the court

65. Life Behind Bars
While inmates still have some access to the courts, the Supreme Court has ruled that they must use all established channels of complaint within the institution before they can ask a court to resolve their issues
The courts are generally reluctant to second-guess administrators in the day-to-day operation of jails and prisons
When a prison rule or practice is challenged by
an inmate, judges will usually uphold the prison
practice if it is reasonably related to “legitimate penological interests”

66. Prison Policy
During the 1990s and into the twenty-first century, the number of people incarcerated in the United States increased significantly
The rate of incarceration is six to ten times higher than that of most developed countries
This increase was caused by a get-tough-on-crime policy that resulted in more criminal defendants going to prison for longer periods
An increasing use of mandatory sentences, a lengthening of some prison terms, and decreasing use of parole and other early-release options added to prison populations

68. Prison Policy
With more prisoners entering the correctional system, the need to expand jail and prison capacity has increased
The cost of expanding existing prisons and building new ones, along with the cost of maintaining the larger number of inmates in prison—estimated to up to $60,000 per inmate per year—has placed an enormous strain on state and federal budgets
To cut costs, many prison officials have reduced or eliminated inmate education, counseling, recreation, and vocational training programs

69. Prison Policy
This increase in incarceration has come with enormous financial costs
Critics argue that some of the money spent on prisons would be better spent on prevention and
treatment programs, and that some
inmates — e.g. those convicted of minor
drug offenses, be returned to their
communities with supervision and support
Others argue that vigorous prosecution
and longer prison terms are the right
approach because they have brought a
significant reduction in crime

70. With your table groups…
Take 5 minutes to discuss the following:
Should prisoners have rights? If so, what rights should they have?
If you were a prison warden, what rules would you make to control the prisoners?
What, if anything, should be done to reduce prison overcrowding?