1. Chapter Eleven Trial - Roles of Major Participants Chapter Eleven Trial - Roles of Major Participants Injustice anywhere is a threat to justice everywhere. — Martin Luther King Jr. [in a letter written from his jail cell in Birmingham, Alabama, published in Atlantic Monthly, August 1963]

2. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Adversary System Bailiff Contempt Privileged Communications Key terms to understand for this chapter… KEY WORDS

3. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 OBJECTIVES After completing this chapter, you should be able to… Explain the role of the major participants in a criminal trial. Discuss the duties and responsibilities of the judge. Explain the functions of a state attorney general. Discuss the role of the victim in a trial. Explain what a bailiff does. List the duties of a court reporter. Summarize the duties of a court commissioner.

4. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Aside from the defendant, major participants in a criminal trial include the judge, prosecuting attorney, defense counsel, clerk of court, bailiff & court reporter. –all considered officers of the court A defendant is entitled to a fair trial before an impartial judge & honest jury in an atmosphere of judicial calm. Our justice system is an adversary system, meaning that it has two sides, where, theoretically, both sides come into the trial on an equal basis. –in a criminal trial, the prosecution and defense, each permitted to present evidence in its own behalf Adversary System

5. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Although the terms judge and the court are used interchangeably, they should be distinguished. –the judge presides over the trial proceedings and exercises those duties and power imposed by law –the court is a judicial proceeding presided over by a judge The judge plays a very important role, with a great deal of power & authority. –many decisions are solely at the judge’s discretion Judge New York State Supreme Court Judge Teresi lectures the prosecutors in the Albany County Courthouse in Albany, New York.

6. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Since unscrupulous acts could seriously affect the administration of justice, the judge’s actions are subject to review by appellate courts. –this avoids any abuse of power or authority by the judge Fortunately, most judges are honest individuals who endeavor to do a conscientious job. Judge A campaign sign for a city court judge candidate.

7. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 In most states, judges of the superior or district court, or equivalent, are elected by the people of the judicial district where they serve, often the county. –these judges are attorneys with experience in law practice Why would an attorney wish to become a judge? –a prevalent reason is prestige, as judges are generally held in high esteem within a community As practicing attorneys, most candidates for are fairly well known to the community, and campaigning is primarily through personal contact & friends’ assistance. Judge Superior or District Court Judges

8. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Inferior court judges are elected in most states, by the people of the judicial district where they serve. –but this district is only a portion of a county In many outlying areas, there is not enough court business to justify a full-time judge. –a judge may be a local practicing attorney elected to act as the judge when court business is required A judge may also operate a local market or service station, or a retired person who needs a part-time job, –as usually there is no requirement that the judge of these courts be trained in law Judge Inferior Court Judges

9. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Some judges work on commission, receiving a portion of fines levied, often creating temptation to fine excessively, particularly in traffic violation cases. –justice meted sometimes leaves a great deal to be desired Judge Inferior Court Judges That these judges are often poorly paid encourages bribery, but most are honest individuals elected because of community faith in their integrity. Campaign ad of Candy VanDecar for County Court Judge in St. Petersburg, Pennsylvania.

10. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The judge controls all trial proceedings and limits the introduction of evidence and arguments of counsel to relevant & material matters. –with a view to expeditious, effective ascertainment of truth –a duty to protect interests of the defendant, and also the interests of the public, ensuring that the guilty are convicted In many jurisdictions, the judge sentences the defendant after conviction. –if a court trial, rendering a verdict of guilt or innocence Additional duties during the trial will be enumerated as the discussion of the trial progresses. Judge Function of the Trial Judge

11. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The judge must: Control conduct of the defendant and the spectators. Determine witness competency & evidence admissibility. Rule on objections made by attorneys. Protect witnesses from harassment during cross- examination. Interpret laws involved in the case for the jury. In some jurisdictions, comment on weight of the evidence presented and credibility of witnesses. Judge Function of the Trial Judge

12. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 It is the responsibility of the judge to ensure trial is conducted in a calm, dignified atmosphere. Assisting is the authority to punish one who interrupts this atmosphere by declaring the offender in contempt. –contempt of court is an act that is disrespectful to the court or adversely affects the administration of justice –any act that embarrasses, hinders, or obstructs the court in may be declared by the judge as contempt of court Falling in this category are contemptuous or insulting remarks to the judge, or persistent arguments with the judge after an admonition to desist has been given. Judge Contempt of Court

13. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Other causes for a judge to exercise right of contempt include disorderly conduct by defendant or spectators, or a witness who refuses to be sworn in and testify. –generally take place within the presence of the judge and known as direct contempt The judge may punish the offender summarily—there and then—without a hearing or any other procedure. –the punishment may be imprisonment and/or a fine In People v. Fusaro, a case in which the two attorneys had exchanged a series of acrimonious remarks, the judge held both in contempt of court. Judge Contempt of Court

14. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Attorneys and others may be held in contempt more than once during a trial & be punished for each time. –offenders have been known to receive sentences lasting for years if the sentences are made to run consecutively The Supreme Court has held that criminal contempt is a crime and the offender entitled to the same trial procedure as in any other crime. –if total sentence exceeds six months, the offender is entitled to a trial by jury –if less than six months, an offender may be tried by a judge, other than the one holding the offender in contempt Judge Contempt of Court

15. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Acts not performed in the presence of the judge may also be known as indirect, or constructive, contempt. –usually the result of failure to abide by court orders Since indirect contempt does not occur in the presence of the judge, a hearing is held to determine whether the alleged offender should be held in contempt. Judge Contempt of Court Austin, Texas: Judge Jeanne Meurer gazes intensely at a young defendant during a juvenile court detention hearing.

16. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The Supreme Court has considerably restricted the right of a trial judge to take summary contempt action, but did not eliminate the right entirely Defense counsels are held in contempt more frequently than prosecuting attorneys. –if a prosecutor indulges in misconduct, it may be considered prejudicial error, and a conviction reversed on appeal Right of contempt is a powerful weapon, and meant to be, as it permits a judge to prohibit court proceedings from getting out of hand because of misconduct. –it also protects those involved in the court proceedings Judge Contempt of Court

17. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The victim of any crime is often the forgotten party in the criminal justice system, for many years perceived as simply another witness to the crime. –prevailing attitude was the real victim was the people In the past twenty years, this has begun to change. –we are more aware of needs & desires of crime victims Enforcement professionals must understand victims may be suffering emotional and/or physical trauma. Care must be taken to ensure that victims understand how the process works and what their rights are. Victim and Perpetrator Victim

18. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 It is also important to realize there are individuals other than the original victim with an interest in the process. –family, friends and, in some situations, a victim’s employer Law enforcement professionals must also respect and protect a victim’s right to privacy. Victims of crime will have questions & concerns regarding the court system and their involvement in it. A frustrating aspects of this process is the fact that victims often perceive that the defendant has more rights and faster access to the courts than they do. Victim and Perpetrator Victim

19. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Many aspects of criminal procedure are controlled by the Constitution, specifically the Bill of Rights. The perpetrator of a crime is guaranteed certain rights within our form of government, which are, for the most part, binding on state courts Violation of these rights may result in a case being dismissed. Victim and Perpetrator Perpetrator

20. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The prosecuting attorney is known by a variety of names. including district attorney, or D.A., or the county attorney. –in the federal system, the title is US Attorney The official role of prosecuting attorney is relatively recent, as for many years, it was the responsibility of the victim or relatives to prosecute a crime. –attorneys were employed to assist in the prosecution As time passed, the office of prosecuting attorney was established since the offense was actually committed against society. Prosecutor

21. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 In most states, the prosecuting attorney is an elected official of the county. Sought-after in large urban areas, it pays well, holds prestige, and the attorney has a number of assistants. In sparsely settled counties, the position may be a part- time job, and there may be no staff. –the prosecuting attorney in such counties may also have a private law practice A few states have permitted several counties to form a judicial district & employ a single prosecuting attorney. Prosecutor

22. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The prosecuting attorney has a great deal of power, irrespective of personal capabilities or jurisdiction, with grave responsibilities to the public that demand integrity, zeal, and conscientious effort. As stated by the Supreme Court in Gideon: –prosecuting attorneys “…are everywhere deemed essential to protect the public’s interest in an orderly society.” The public prosecutor institutes proceedings before magistrates for arrest of persons charged with or reasonably suspected of committing a public offense. –in addition he/she represents the county on all civil matters Prosecutor Responsibilities of Prosecuting Attorneys

23. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 At trial, another responsibility is to present enough evidence to prove the defendant guilty beyond a reasonable doubt. The prosecuting attorney must also assist in jury selection, decide what witnesses to call, and determine what physical evidence should be introduced. Responsibilities of making recommendations to the judge on the severity of the sentence and of assisting the state attorney general with appeals also fall to the prosecuting attorney. Prosecutor Responsibilities of Prosecuting Attorneys

24. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 In most states, the attorney general has broad authority to coordinate local prosecutions, including right to prosecute on his/her own and supervise, assist, and consult local prosecuting attorneys. –there are a few states where the attorney general has no authority over local prosecutions If a local prosecuting attorney needs assistance or fails in his/her duties, an attorney general is free to act. When a case is appealed, in most jurisdictions it is the responsibility of the state attorney general to present the case to the appellate court. State Attorney General

25. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The defense attorney represents the rights and interests of the perpetrator. Unlike the prosecutor, concerned with justice, truth, and fairness, the defense attorney’s obligation is to use all of his/her courage, devotion, and skills to protect the rights of the accused. –as established by the American Bar Association’s General Standards of Conduct Many defense attorneys interpret this as requiring they do everything possible to obtain an acquittal. –even if they know the defendant committed the offense Defense Counsel

26. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The Sixth Amendment states that all those accused of crimes have a right to be represented by an attorney. In the landmark Gideon v. Wainwright, the Supreme Court established that all defendants have a right to counsel in all felony cases. –even if they cannot afford to hire their own attorney The Court extended this concept to misdemeanor cases in Argersinger v. Hamilin, holding that absent a waiver, no person may be imprisoned for any offense, unless he/she has been represented by an attorney. Defense Counsel

27. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 There are basically four types of defense attorneys: Defense Counsel Four Types of Defense Attorneys Public defenders - hired & paid by the government, appointed to represent persons charged with crimes who cannot afford to hire an attorney. –many counties have public defenders’ offices staffed by very able, aggressive attorneys Contract defense services - normally a group of attorneys who have entered into an agreement with the county to represent indigent defendants for a specified amount of money.

28. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 There are basically four types of defense attorneys: Defense Counsel Four Types of Defense Attorneys Assigned defense counsels - exist in the majority of the counties in the US, many of which are small and cannot afford the cost of a public defenders office. –the court maintains a list of attorneys willing to be appointed to represent indigent criminal defendants Private defense counsel - usually represent defendants capable of paying for their services. Well-known examples include attorneys such as Johnny Cochran, F. Lee Bailey, and Alan Dershowitz of the “Dream Team” who represented O.J. Simpson.

29. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The Constitution requires competent counsel who will vigorously defend the perpetrator. –but not an attorney who will present perjured testimony In Nix v. Whiteside, the defense attorney, learning his client was going commit perjury, informed the client he would disclose the perjury and withdraw from the case. –the perpetrator testified & did not commit perjury, however, he did file an appeal claiming ineffective counsel The court disagreed, holding that attorneys who follow their state’s rules of professional (ethical) conduct do not violate the Sixth Amendment right to counsel. Defense Counsel Right to Competent Attorney

30. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The Supreme Court has held the Sixth Amendment right to counsel allows a defendant to proceed pro se, –to represent him/herself without counsel Rationale is that right to counsel is a personal right of the accused, not a right bestowed upon an attorney representing the accused. Courts have stated that when a defendant knowingly waives the right to counsel, he/she cannot later raise the issue of ineffective representation –in essence, the accused has waived any appeal on this issue Defense Counsel Right to Represent Oneself

31. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Defense counsels are often placed in a most awkward position because of the age-old relationship of privileged communication between attorney and client. While enforcement agencies may be unaware of crimes discussed by a clien, society, as well as the criminal, is entitled to some consideration and justice. –in most instances, prosecutive action cannot be taken, as the exclusionary rule would prohibit the use of the information If the facts of a case are such that an attorney cannot accept the responsibility of effectively defending a client, the case should be refused. Defense Counsel Privileged Communication

32. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Once a case is accepted, it is the attorney’s duty to remain until it has been brought to a logical conclusion. If there are codefendants, the defense counsel must decide whether all of them can be effectively represented without a conflict of interest. Counsel will file motions in the best interest of the defendant. Defense counsel will cross-examine prosecution witnesses when appropriate and present evidence on behalf of the defendant. Defense Counsel Privileged Communication

33. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The clerk of the court, or county clerk, has a most important function in the justice system. –before, during and after the trial The main function of the clerk is to maintain all records of a particular case, issue subpoenas and, in many jurisdictions, prepares the jury panel. He/she attends trials to swear in witnesses, marks exhibits, and maintains the evidence that is introduced. The clerk also keeps copies of the court transcripts, judgments rendered, and motions for appeals. Clerk of the Court

34. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The court bailiff may be a permanent member of the justice system or appointed to assist in a particular trial. The bailiff assists the judge in maintaining order in the court, calls witnesses to testify and may also guard a defendant not released from custody, in the courtroom. When the jury is sequestered, the bailiff makes certain that the jurors are free from all contact with the public. –and return them to the courtroom after they reache a verdict In many jurisdictions, the bailiff serves court orders and other court papers. Bailiff

35. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The responsibility of recording everything said during the trial proceeding belongs to the court reporter. –including all witness testimony, objections, rulings by the judge, and conferences between the attorneys and the judge The court reporter must be highly skilled to record transactions as they take place, often at a rapid pace. –if a case is appealled, recorded notes must be transcribed The reporter may record the proceedings in shorthand or with a stenotype machine. –now, many jurisdictions use audiotapes to record proceedings Court Reporter

36. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 In many judicial districts, court commissioners are appointed to assist trial judges. In most instances, they must possess the same qualifications as the judge, and a commissioner may substitute for a judge in an emergency situation. Otherwise, the commissioners hold hearings on motions filed, set and accept bail, and perform other duties that may be imposed on them by law. Court Commissioner

37. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 Our system of justice is based on the adversary system. The judge presides over the trial proceedings and performs those duties imposed upon him or her by law. The trial judge has the primary responsibility during a trial for ensuring that justice is carried out. A trial judge has contempt authority. Contempt is an act that is disrespectful to the court or adversely affects the administration of justice. The victim is often the forgotten person in the trial. Important topics for this chapter… SUMMARY

38. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 The prosecutor's primary duty is to promote justice. The prosecutor institutes proceedings before magistrates for the arrest of persons charged with or reasonably suspected of committing a public offense. In most states, the state attorney general has broad authority to coordinate local prosecutions. The defense counsel has a duty to represent the defendant. Important topics for this chapter… SUMMARY (cont.)

39. Procedures in the Justice System, Ninth Edition By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey © 2010 Pearson Higher Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458 There are four types of defense attorneys: public defenders, contract defense services, assigned defense counsel, and private retained counsel. Important topics for this chapter… SUMMARY (cont.)

40. Chapter End