1. Chapter 8 The Administration of Justice

2. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-2 Chapter Objectives After completing this chapter, you should be able to do the following:  Identify the type of court structure in the U.S. and describe its various components.  Summarize the purposes of courts.  Identify the most powerful actors in the administration of justice and explain what makes them so powerful.

3. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-3 Chapter Objectives  Summarize the types of attorneys available to a person charged with a crime.  Describe the responsibilities of a judge.  Describe the purposes of an initial appearance.  Explain what bail is, and describe the different methods of pretrial release.  Describe what a grand jury is, and explain its purposes.

4. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-4 Chapter Objectives  Describe the purposes of the arraignment and the plea options of defendants.  Describe the interests served and not served by plea bargaining.  List and define the stages in a criminal trial.  Explain the different roles of judges in adversarial and inquisitorial trial systems.

5. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-5 The American Court Structure  The U.S. has a dual court system.  Dual court system: one system of state and local courts and another system of federal courts  The only place where the two systems connect is in the U.S. Supreme Court.

6. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-6

7. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-7 The American Court Structure  The court’s jurisdiction is set by law and limited by territory and type of case.  Jurisdiction: the authority of a court to hear and decide cases

8. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-8 The American Court Structure  There are several ways to describe a court’s jurisdiction.  Original jurisdiction: the authority of a court to hear a case when it is first brought to court  Appellate jurisdiction: the power of a court to review a case for errors of law  General jurisdiction: the power of a court to hear any type of case  Special jurisdiction: the power of a court to hear only certain kinds of cases  Subject matter jurisdiction: the power of a court to hear a particular type of case  Personal jurisdiction: the court’s authority over the parties to a lawsuit

9. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-9 The Federal Courts  The authority for the federal court system is in the Constitution.  The system includes:  The Supreme Court  Circuit courts of appeals  District courts

10. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-10

11. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-11 United States District Courts  Forming the base of the federal court structure are the U.S. district courts.

12. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-12 United States District Courts  Two factors determine jurisdiction of federal district courts:  Subject matter of the case: Federal district courts have jurisdiction over cases involving federal laws, treaties with foreign nations, interpretations of the Constitution, and maritime law—the law of the sea.  Parties to the case: Federal district courts have jurisdiction in cases involving ambassadors or other foreign government representatives, two or more state governments, the U.S. government, citizens of different states, a state and a citizen of a different state, citizens of the same state claiming lands under grants of different states, and a state or its citizens and a foreign county or its citizens.

13. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-13 United States District Courts  Trials in federal district court are usually heard by a single judge.  Most cases in U.S. district courts are civil.  Federal criminal cases involve:  Bank robbery  Counterfeiting  Mail fraud  Kidnapping  Civil rights abuses

14. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-14 Circuit Courts of Appeals  A party that loses a case in federal district court may appeal to a federal circuit court of appeals, or in some cases, directly to the U.S. Supreme Court.  Circuit courts of appeals review a case for errors of law, not of fact.  Federal courts of appeals also hear appeals of the rulings of regulatory agencies.  Normally, three judges sit as a panel to hear cases. Jury trials are not allowed.

15. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-15

16. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-16 The United States Supreme Court  The U.S. Supreme Court is the court of last resort in all questions of federal law.  The Court may hear cases:  Appealed from federal courts of appeals  Appealed directly from federal district courts in certain circumstances  Appealed from the high court of a state, if claims under federal law or the Constitution are involved

17. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-17 The United States Supreme Court  The U.S. Supreme Court is composed of:  A chief justice  Eight associate justices  Each member of the U.S. Supreme Court is appointed for life by the president and affirmed by the Senate.

18. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-18 The United States Supreme Court  In order for a case to be heard by the Supreme Court, at least four justices must vote to hear the case.  When the court decides to hear a case, they issue a writ of certiorari.  Writ of certiorari: a written order from an appellate court to a lower court whose decision is being appealed, to send the records of the case forward for review

19. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-19 The United States Supreme Court  When the Court decides a case, it can:  Affirm the decision of the lower court and “let it stand”  Modify the decision of the lower court, without totally reversing it  Reverse the decision of the lower court, requiring no further court action  Reverse the decision of the lower court and remand the case to the court of original jurisdiction, for either retrial or resentencing

20. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-20 The United States Supreme Court  An imprisoned defendant whose appeal has been denied may try to have the Supreme Court review his or her case on constitutional grounds by filing a writ of habeas corpus.  Writ of habeas corpus: an order from a court to an officer of the law to produce a prisoner in court to determine if the prisoner is being legally detained or imprisoned

21. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-21 The State Courts  The state courts have general power to decide nearly every type of case, subject only to the limitations of the U.S. Constitution, their own state constitutions, and state law.  There are generally four levels of state courts:  Trial courts of limited jurisdiction  Trial courts of general jurisdiction  Intermediate appellate courts  State courts of last resort

22. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-22 Trial Courts of Limited Jurisdiction  The trial courts of limited jurisdiction are usually referred to as “lower courts.”  The lower courts typically deal with minor cases, such as ordinance and traffic violations.  These cases often involve summary or bench trials.  Summary or bench trials: trials without a jury

23. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-23 Trial Courts of Limited Jurisdiction  Lower courts are not courts of record.  An appeal from a lower court requires a trial de novo.  Trial de novo: a trial in which an entire case is reheard by a trial court of general jurisdiction because there is an appeal and there is no written transcript of the earlier proceeding

24. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-24 Trial Courts of General Jurisdiction  These courts have the authority to try all civil and criminal cases and to hear appeals from lower courts.  They are courts of record.  Some states have created specialty courts to deal with certain types of crimes or chronic social problems.  Examples: drug courts, mental-health courts, collections courts, community courts, domestic-violence courts

25. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-25 Intermediate Appellate Courts  Some smaller states have only one appellate court, the court of last resort, usually called the state supreme court.  However, 39 states have intermediate appellate courts to reduce the case burden on the state supreme court.  These appellate courts hear only appeals.  They review cases for errors of law.  They cannot refuse to hear any legally appealed case.

26. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-26 State Courts of Last Resort  In most states, the court of last resort is called the state supreme court.  The primary responsibility of state courts of last resort is to hear appeals from either trial courts of general jurisdiction or intermediate appellate courts.

27. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-27 Purposes of Courts  Expert Ted Rubin outlines 10 purposes of courts: 1. Do justice 2. Appear to do justice, providing due process of law  Due process of law: the procedures followed by courts to ensure that a defendant’s constitutional rights are not violated 3. Provide a forum where disputes between people can be resolved justly and peacefully 4. Censure wrongdoing

28. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-28 Purposes of Courts 5. Incapacitation  Incapacitation: the removal or restriction of the freedom of those found to have violated criminal laws 6. Punishment  Punishment: the imposition of a penalty for criminal wrongdoing. 7. Rehabilitation  Rehabilitation: the attempt to “correct” the personality and behavior of convicted offenders through educational, vocational, or therapeutic treatment and to return them to society as law-abiding citizens

29. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-29 Purposes of Courts 8. General deterrence  General deterrence: the attempt to prevent people in general from engaging in crime by punishing specific individuals and making examples of them 9. Determine legal status 10. Protect citizens against arbitrary government action

30. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-30 Key Actors in the Court Process  The three key actors in the court process are:  The prosecutor  The defense attorney  The judge

31. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-31 The Prosecutor  The prosecutor is a community’s chief law enforcement official and is responsible primarily for the protection of society.  The prosecutor is the most powerful actor in the administration of justice. Prosecutors have the authority to:  Decide whether to charge or not charge a person with a crime  Decide whether to prosecute or not prosecute a case  Determine what the charge will be

32. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-32 The Prosecutor  When a prosecutor elects not to prosecute, they enter a notation of nolle prosequi (nol. pros.) on the official record or the case and formally announce in court the decision to dismiss the charge or charges.  Insufficient evidence is the most frequent reason given by prosecutors for not prosecuting cases.

33. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-33 The Decision to Charge and Prosecute  Ideally, prosecutors are supposed to charge an offender with a crime and to prosecute the case if after full investigation three, and only three, conditions are met:  They find that a crime has been committed.  A perpetrator can be identified.  There is sufficient evidence to support a guilty verdict.

34. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-34 The Decision to Charge and Prosecute  On the other hand, prosecutors are not supposed to:  Charge suspects with more criminal charges or for more serious crimes than can be reasonably supported by evidence  Be deterred from prosecution because juries have refused to convict for certain types of crimes  Prosecute because the public demands it  Prosecute because of political repercussions

35. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-35 The Decision to Plea-Bargain  Probably the most strategic source of power available to prosecutors is their authority to decide which cases to plea bargain.

36. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-36 Plea Bargaining  Plea bargaining: the practice whereby the prosecutor, the defense attorney, the defendant, and—in many jurisdictions—the judge agree on a specific sentence to be imposed if the accused pleads guilty to an agreed upon charge or charges instead of going to trial

37. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-37 Recommending the Amount of Bail  Although the final decision on the amount (or opportunity for) bail rests with the judge, the prosecutor makes the initial recommendation.  By recommending a very high bail amount, a prosecutor can pressure a suspect to accept a plea bargain.

38. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-38 Rules of Discovery  Rules of discovery: rules that mandate that a prosecutor provide defense counsel with any exculpatory evidence (evidence favorable to the accused that has an effect on guilt or punishment) in the prosecutor’s possession  Perhaps the only weakness in a prosecutor’s arsenal of weapons is the legal rules of discovery.  Defense attorneys are under no obligation to provide prosecutors with incriminating evidence.

39. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-39 Selection and Career Prospects of Prosecutors  Given the power of prosecutors in the administration of justice, the public can only hope that prosecutors wield their power wisely and justly.  Most of them do.  Unfortunately, political considerations and aspirations may cause some prosecutors to violate the canons of their position.

40. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-40 Assistant District Attorneys  The workhorses of the big-city prosecutor’s office are the assistant district attorneys who are hired by the prosecutor.  Most stay for only two to four years because of:  Low pay  Little chance for advancement  Physical and psychological pressures  Boredom  Disillusionment with the process

41. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-41 National Survey of Prosecutors  According to a 2007 survey, there were 2,330 prosecutors’ offices in the United States. More than 78,000 attorneys, investigators, victim advocates, and support staff worked in those offices.  The total amount spent for prosecutorial services nationwide was approximately $5.8 billion.

42. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-42 The Defense Attorney  The Sixth Amendment to the Constitution guarantees the right to the “effective assistance” of counsel.  Defendants have a right to counsel during:  Custodial interrogations  Preliminary hearings  Police lineups  Trial  Some posttrial proceedings  Probation and parole revocation hearings

43. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-43 The Defense Attorney  A defendant may waive the right to counsel and appear on his or her own behalf.  In the American system of justice, the role of defense counsel is to provide the best possible legal counsel and advocacy within the legal and ethical limits of the profession.

44. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-44 The Defense Attorney  Most lawyers are not well trained in criminal defense.  Many lawyers prefer to practice other, often more lucrative, areas of law.  All criminal defendants are entitled to an attorney even if they cannot afford a private attorney.

45. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-45 Criminal Lawyers  There are only a few nationally known, highly paid, successful criminal lawyers.  Another small group of criminal lawyers defend professional criminals such as organized crime members, gamblers, pornographers, and drug dealers.  Most criminal lawyers struggle to make a decent living.

46. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-46 Criminal Lawyers  Most successful criminal lawyers gain their reputations by their ability to “fix” cases—that is, get the best possible result through:  Plea bargaining  Strategic uses of motions  Relationships with the prosecutor  A hearing before the “right” judge

47. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-47 Criminal Lawyers  A criminal lawyer’s time is his or her most valuable commodity.  Trials are time-consuming; therefore, criminal lawyers often try to avoid trials.  Some attorneys resort to unethical (or illegal) practices to ensure that they are paid for their services.

48. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-48 The Court-Appointed Lawyer  In some jurisdictions, defendants who cannot afford a lawyer are provided with a court appointed, private attorney.  If they are paid at all, court-appointed private attorneys are paid a nominal sum.  Many are not knowledgeable in criminal law.

49. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-49 The Public Defender  In many jurisdictions, people who cannot afford an attorney are provided with public defenders.  Public defenders are paid a fixed salary by the jurisdiction.  Although public defenders may have a conflict of interest because of their close working relationship with prosecutors and judges, most defendants prefer them because they specialize in criminal law.

50. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-50 The Contract Lawyer  A relatively new and increasingly popular way to provide for indigent defense is the contract system.  Private attorneys, law firms, and bar associations bid for the right to represent a jurisdiction’s indigent defendants, and are paid a fixed dollar amount.

51. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-51 Indigent Defense Systems  In 2008, all 50 states and the District of Columbia had indigent defense systems.  In 2007, with the exception of Maine, all 50 states and the District of Columbia had public defender systems.

52. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-52

53. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-53 The Judge  Judges have a variety of responsibilities in the criminal justice process:  Determining probable cause  Signing warrants  Informing suspects of their rights  Setting and revoking bail  Arraigning defendants  Accepting guilty pleas  In some jurisdictions, managing their own courtrooms and staff  In some jurisdictions, managing the entire courthouse and its personnel  Allowing the jury a fair chance to reach a verdict on the evidence presented

54. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-54 Characteristics of Judges  Judges in the United States share many characteristics. They are generally:  White  Male  From upper-middle-class backgrounds  Protestant  Better educated than most citizens  50 years of age or older  They have generally practiced privately before becoming judges.

55. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-55 Selection of Judges  The two most common selection methods are:  Election  Merit selection

56. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-56 Selection of Judges  In the merit selection process, also known as the “Missouri Plan”:  The governor appoints judges from a list of qualified lawyers compiled by a nonpartisan nominating commission.  After serving a short term, the judge faces an uncontested election in which citizens vote whether to keep the judge or not.  If voters elect to keep the judge, he or she serves a full term.

57. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-57 Qualification and Training  In most jurisdictions, lower-court judges are not required to be lawyers or possess any special training.  However, nearly all states require judges on appellate and trial courts of general jurisdiction to be licensed attorneys.  Because many judges do not have experience with criminal law or procedure, many states require them to attend judicial training seminars.

58. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-58 Pretrial Stages  A powerful “funneling” or screening process in the administration of justice eliminates about one-half of all persons arrested.

59. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-59 Caseflow Management  Increasingly large caseloads in the state and federal courts are requiring new management skills that enable the courts to process a huge volume of civil and criminal cases as efficiently as possible.  Caseflow management has been called “the conceptual heart of judicial administration in the new millennium.”  Today’s court administrators are being influenced by basic business principles.

60. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-60 From Arrest Through Initial Appearance  Soon after most suspects are arrested, they are taken to the police station for booking.  Booking: the process in which suspects’ names, the charges for which they were arrested, and perhaps their fingerprints or photographs are entered on the police blotter  Following booking, prosecutors review the facts and decide whether the suspect should be charged.

61. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-61 From Arrest Through Initial Appearance  If the prosecutor decides that a suspect is “chargeable,” the prosecutor prepares one of three types of charging documents:  Complaint: a charging document specifying that an offense has been committed by a person or persons named or described; usually used for misdemeanors and ordinance violations  Information: a document that outlines the formal charge or charges, the law or laws that have been violated, and the evidence to support the charge or charges  Grand jury indictment: a written accusation by a grand jury charging that one or more persons have committed a crime

62. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-62 From Arrest Through Initial Appearance  On rare occasions, the police obtain an arrest warrant from a lower-court judge prior to making an arrest.  Arrest warrant: a written order directing law enforcement officers to arrest a person, with the e charge or charges against the suspect specified on the warrant  After charges have been filed, the suspects are now defendants and are brought before a lower-court judge for an initial appearance.  They are advised of the charges against them and their rights.

63. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-63 From Arrest Through Initial Appearance  For felonies, a hearing is held to determine whether the defendant should be released or held for a preliminary hearing.  If the defendant is to be held, bail may be set.

64. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-64 From Arrest Through Initial Appearance  The U.S. Supreme Court has held that a “prompt” judicial hearing is required in a warrantless arrest to determine if the officer had probable cause to make the arrest.  In 1991 (County of Riverside v. McLaughlin), the Court ruled that anyone arrested without a warrant may be held no longer than 48 hours before a judge decides whether the arrest was justified.

65. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-65 Bail and Other Methods of Pretrial Release  A bail bond or bail allows suspects or defendants to remain free while awaiting the next stage in the adjudication process.  It is not a fine but an incentive to appear.

66. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-66 Bail and Other Methods of Pretrial Release  The amount of bail generally depends on:  The likelihood that the suspect or defendant will appear in court as required  The seriousness of the crime  The suspect’s prior criminal record  Jail conditions and overcrowding

67. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-67 Bail and Other Methods of Pretrial Release  If a judge believes that a suspect or defendant would pose a threat to the community, the judge can refuse to set bail.  This is called preventive detention.

68. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-68 Bail and Other Methods of Pretrial Release  For people who cannot afford to post bail, professional bonds people are available to post it for them for a nonrefundable fee, typically 10% of the required amount.  Bonds people are under no obligation to post a bond if they believe someone is a bad risk.

69. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-69 Bail and Other Methods of Pretrial Release  In practice, most bail bonds people assume little risk.  Bonds people secure surety bonds from insurance companies to cover their financial liability.  Judges have the ability to vacate outstanding bonds, relieving bonds people of their financial obligations.  Judges vacate bonds because they realize that without the cooperation of bail bonds people, the courts would be faced with an unmanageably large jail population and prohibitively high pretrial detention costs.

70. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-70 Bail and Other Methods of Pretrial Release  Suspects who post their own bail get it all back after they appear.  If the suspect or defendant does not appear, the bail is forfeited and the judge issues a bench warrant or capias authorizing the person’s arrest.  They cannot be released on bail again.

71. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-71 Bail and Other Methods of Pretrial Release  When the crime is minor and suspects or defendants have ties to the community, they are generally released on their own recognizance (ROR).  Other nonfinancial releases are:  Conditional release  Unsecured bond

72. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-72 Conditional Release and Unsecured Bond  Conditional release: a form of release that requires that a suspect/defendant maintain contact with a pretrial release program or undergo regular drug monitoring or treatment  Unsecured bond: an arrangement in which bail is set but no money is paid to the court

73. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-73 Information  If the decision is made to prosecute a defendant, in states that do not use grand juries, the prosecutor drafts a document called an information. The information outlines:  The charge or charges  The law or laws violated  The evidence to support the charge or charges

74. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-74 Preliminary Hearing  The preliminary hearing is a pretrial stage used in about half of all states and only in felony cases.  Its purpose is for a judge to determine whether there is probable cause to support the charge or charges imposed by the prosecutor.

75. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-75 Preliminary Hearing  A preliminary hearing is both similar to a criminal trial and different.  It is similar because:  Defendants can be represented by counsel  Defendants can call witnesses  It is different because:  The judge must only determine that there is probable cause that the defendant committed the crime  There is no right to a jury

76. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-76 Grand Jury  The alternative to filing an information is a grand jury.  Grand jury: generally a group of 12 to 23 citizens who meet in closed sessions to investigate charges coming from preliminary hearings or to engage in other responsibilities  A primary purpose of the grand jury is to determine whether there is probable cause to believe that the accused committed the crime or crimes.

77. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-77 Grand Jury  Because the grand jury has to determine only probable cause:  Only the prosecution’s evidence and witnesses are heard.  In most jurisdictions, the defendant does not have a right to be present.  Prosecutors are allowed to present hearsay or illegally obtained evidence.

78. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-78 Grand Jury  In addition, prosecutors have the authority to subpoena witnesses.  Subpoena: a written order to testify, issued by a court officer  After hearing the prosecutor’s evidence and witnesses, the grand jury makes its probable cause determination and, usually on a majority vote, either indicts (issues a true bill) or fails to indict (issues no bill).

79. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-79 Grand Jury  In practice, the grand jury system is criticized for merely providing a rubber stamp for whatever the prosecutor wants to do.  Suspects waive the right to a grand jury hearing in about 80% of cases.  Defendants may also waive the right to a grand jury hearing to speed up their trial date.

80. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-80 Arraignment  At an arraignment, the most common plea is “not guilty.”  Defendants may also plead “guilty.”  In some jurisdictions, defendants may plead:  Nolo contendere  Not guilty by reason of insanity  Or stand mute

81. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-81 Arraignment and Nolo Contendere  Arraignment  A pretrial stage  Its primary purpose is to hear the formal information or indictment and to allow the defendant to enter a plea.  Nolo contendere  Latin for “no contest.”  When defendants plead nolo, they do not admit guilt, but they are willing to accept punishment.

82. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-82 Plea Bargaining  Justice in the U.S. is dispensed mostly through plea bargaining.  There are three basic types of plea bargains:  The defendant may be allowed to plead guilty to a lesser offense.  A defendant who pleads guilty may receive a lighter sentence.  A defendant may plead guilty to one charge in exchange for the prosecutor’s promise to drop another charge.

83. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-83 Plea Bargaining  The bargain a prosecutor will strike generally depends on three factors:  The seriousness of the offense  The defendant’s criminal record  The strength of the prosecutor’s case  There is neither a constitutional basis nor a statutory basis for plea bargaining.  Plea bargaining developed out of custom, but it has been upheld by the Supreme Court.

84. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-84 Plea Bargaining  Plea bargaining is widely used because of several factors:  It reduces uncertainty in the criminal justice process.  It serves the interests of the participants:  Prosecutors get high conviction rates.  Judges reduce their caseload.  Defense attorneys spend less time on each case and avoid expensive trials.  Defendants get lighter sentences than they might have gotten from juries and can avoid conviction on stigmatizing crimes such as child abuse.

85. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-85 Plea Bargaining  Two types of criminal defendants are not served by plea bargaining:  Innocent, indigent, highly visible defendants who fear being found guilty of crimes they did not commit  Habitual offenders  Prosecutors use “three strikes” laws as bargaining chips to force repeat offenders to accept guilty pleas.

86. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-86 The Criminal Trial  One of the distinctive features of criminal justice in the U.S. is trial by a jury of one’s peers.  A jury trial is an adversarial process in which the state must show, beyond a reasonable doubt, that the defendant is guilty.  The judge or jury must determine and assign guilt.

87. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-87 The Criminal Trial  Only about 2% of cases are resolved through a jury trial.  95% are resolved through a guilty plea.  3% are decided by a judge in a bench trial.

88. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-88 The Jury  The purposes of trial by jury are:  To protect citizens against arbitrary law enforcement  To prevent government oppression  To protect citizens from overzealous or corrupt prosecutors and from eccentric or biased judges  Jury trials are relatively rare.  When jury trials are used, seldom is the jury composed of peers.

89. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-89 The Jury  Jury pools are often drawn from voter roles, which exclude people not registered to vote, often including:  The poor  The poorly educated  The young  People of color  Today, some jurisdictions use multiple source lists for obtaining jurors.

90. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-90 The Jury  From the master list of all eligible jurors, people are randomly chosen for the venire.  Venire: the pool from which jurors are selected  Those chosen are summoned for service.  Many will be eliminated because they do not meet basic requirements for citizenship, etc.  Many will be excused for financial hardship or other reasons.

91. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-91 The Jury  From the venire or jury pool, as many as 30 people are randomly selected by the court clerk for the jury panel from which the actual trial jury is selected.  Potential trial jurors go through voir dire, during which the defense, prosecution, and judge question jurors about their backgrounds and knowledge of the case.

92. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-92 The Jury  Potential jurors can be eliminated by either the defense or prosecution in two ways:  “For cause”—the juror appears to be biased or unable to render a fair verdict.  By use of a peremptory challenge—the prosecutor or defense can excuse jurors without having to provide a reason.

93. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-93 The Jury  Traditionally, a jury in a criminal trial consists of 12 citizens plus one or two alternates who will replace any jurors unable to continue.  Recently, primarily to reduce expenses, some states have gone to 6-, 7-, and 8-member juries in noncapital criminal cases.

94. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-94 The Trial Process  Before a criminal trial formally begins, attorneys in about 10% of felony cases file pretrial motions.  Common motions ask for:  Discovery of evidence  Suppression of evidence

95. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-95 The Trial Process  The prosecution must establish beyond a reasonable doubt each element of the crime.  If the defense feels the prosecution has not made its case, it can rest and ask for a directed verdict or make a motion for dismissal.  If the case is not dismissed, and the defendant at that point is not acquitted, the defense presents its case.

96. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-96 The Trial Process  Both the prosecution and defense have the opportunity to:  Offer rebuttals  Cross-examine witnesses  Re-examine witnesses  Finally, both prosecution and defense summarize their case in a closing statement.

97. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-97

98. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-98 The Trial Process  The judge normally instructs the jury on:  What principles of law to consider in judging the case  The charges  The rules of evidence  Possible verdicts  The jury then withdraws and deliberates.

99. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-99 The Trial Process  If the jury cannot agree beyond a reasonable doubt that the defendant has committed the crime, it acquits.  If the jury cannot reach a unanimous verdict, the result is a hung jury.  Hung jury: the result when jurors cannot agree on a verdict  The judge declares a mistrial.  The prosecutor must decide whether to retry the case.

100. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-100 Adversarial Versus Inquisitorial Trial Systems  As noted previously, the United States employs an adversarial trial system, which is one of two basic types of trial systems employed throughout the world.  The other and more widely used type is the inquisitorial trial system.

101. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-101 Adversarial Versus Inquisitorial Trial Systems  In general, adversarial trial systems are used in England and the countries it once ruled (for example, the United States except Louisiana; Canada except Quebec; India; Australia; and New Zealand).  Inquisitorial trial systems are generally found in the countries of continental Europe and their former colonies (for instance, France, Germany, Italy, Spain, and Mexico).  A third system based on Islamic legal tradition combines elements of both adversarial and inquisitorial systems, although inquisitorial elements seem to dominate.

102. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-102

103. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-103 Adversarial Versus Inquisitorial Trial Systems  Adversarial systems aim to determine the truth about a crime through an open competition between the prosecution and the defense.  Each side in the competition attempts to make the most compelling argument.  Critics of the adversarial system contend that the goal of winning often supersedes the search for truth.

104. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-104 Adversarial Versus Inquisitorial Trial Systems  In inquisitorial systems, the goal also is the search for the truth about a crime but not by a competition, as in adversarial systems, but by an extensive investigation and examination of all evidence.  In both systems, defendants are guaranteed the right to a fair trial and are protected from self-incrimination.

105. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-105 Adversarial Versus Inquisitorial Trial Systems: Differing Roles of the Judge  In the adversarial system in the United States, trial judges:  Are selected or elected from among practicing attorneys  Have a relatively passive role and act as referees, making sure that the defense and prosecution follow the rules and that due process is respected

106. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-106 Adversarial Versus Inquisitorial Trial Systems: Differing Roles of the Judge  The inquisitorial system, by contrast, relies on professional judges who in some countries are called prosecutors or inquisitors and are a part of a career judiciary that is trained specifically for the bench.  They have an active and overarching role, typically directing and supervising the police’s pretrial collection and preparation of evidence, sometimes conducting investigations themselves, interrogating witnesses, presenting evidence at trial, and ensuring an outcome based on the merits of the case.

107. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-107 Adversarial Versus Inquisitorial Trial Systems  The inquisitorial system has been criticized for the multidimensional role of the judge.  Critics contend that this multidimensional role could create prejudice against the defendant.  For example, even though judges in inquisitorial systems are supposed to search for evidence in favor of the defendant, they have less of an incentive to do so than the defendant and his or her attorneys in adversarial systems.

108. Copyright © 2014 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of McGraw-Hill Education. 8-108 Adversarial Versus Inquisitorial Trial Systems  Still, in an adversarial system, police and prosecutors generally do not seek exculpatory evidence, as the judge does in inquisitorial systems.  Clearly, both systems have their advantages and disadvantages.  As a result, the contemporary trend seems to be toward mixed trial systems that combine elements of both adversarial and inquisitorial systems.