1. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-1 Unit 1-5 Criminal Procedure: Map of Procedure CrimeInitial Appearance Bond hearing Grand Jury Preliminary Hearing Arraignment Police Station Preliminary Hearing Court/ Magistrate Judge Trial Judge Trial Probable Cause: to arrest, to issue bond, to hold for pretrial detention, to sustain the charge Beyond a Reasonable Doubt

2. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-2 Unit 6 Trial Phase: Discovery Motions Plea Bargain Trial Admissible Evidence

3. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-3 Pretrial Right to Discovery Right is a comparatively recent origin. Unknown at common law Right of adversary to inspect, review, and copy certain materials held by the opposition that are anticipated to be introduced into evidence during the trial. Both sides have certain discovery rights.

4. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-4 Defendant’s Pretrial Discovery Rights May vary by state statute Generally entitled to Names and addresses of witnesses Right to inspect all witness statements in the hands of the government United States v. Garison No absolute right to inspect the prosecutor’s file

5. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-5 Prosecutor’s Right to Discovery Depends on state statutes and court decisions May create a self-incrimination problem Alibi rule Williams v. Florida Reason for the rule Sanctions when rule violated

6. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-6 Motion to Suppress Evidence Allows parties to determine the admissibility of evidence prior to trial In some states objections to evidence may be delayed until the evidence is offered into evidence during the trial. Grounds for evidence suppression include Exclusionary rule Confessions alleged to have been illegally obtained

7. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-7 Motion to Dismiss Charges Prosecutor may decide not to try case. Problems with charging instrument, e.g., defective indictment Generally not a bar to future prosecution involving the incident in question.

8. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-8 Continuances Most states require counsel to present motions to continue the case in writing. Decision as to whether the continuance will be granted is at the trial judge’s discretion. Trial judge’s decision based on Reason for request Status of the trial

9. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-9 Motion for Severance May be for a severance of defendants when several are tried together. May be for a severance of multiple charges against the defendant. Decision based on trial judge’s discretion.

10. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-10 Motion to Determine Competency Competency relates to accused’s mental state at trial time. Defense has the burden of producing some evidence as to lack of competency of the accused. Generally, the trial judge suspends criminal trial and conducts proceedings to determine if the accused is presently competent to stand trial.

11. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-11 Plea Negotiations Approved by U.S. Supreme Court— Brady v. United States May bargain to Reduce sentence Reduce charges Dismiss some of the charges Recommendations of prosecutor as to sentence, probation, or other matters

12. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-12 Restrictions on Plea Bargaining Many states prohibit or restrict plea bargaining on certain crimes, e.g., Cal. Penal Code 1192.7(a), which restricts California prosecutors from plea bargaining in any crime involving the use of a firearm.

13. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-13 Hearsay A statement, other than one made by the declarant, while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

14. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-14 Not Hearsay Statement entered merely to show that the statement was made and not to prove the contents of the statement. Admission by a party-opponent, e.g., a confession by the defendant

15. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-15 Exceptions to Hearsay Rule Admissible statements include Affidavits to show probable cause Statements made at the time of a startling event relating to the event Previous inconsistent statements by witness Business records Statements made for purposes of medical treatment Former testimony

16. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-16 Rulings on Evidence In an appeal, rulings on evidence cannot be assigned as error unless: A substantial right is affected The nature of the error was called to the attention of the trial judge at the time the item was offered into evidence Exception: plain error rule Ruling was clearly wrong and prejudiced the defendant

17. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-17 Judicial Notice Court may take judicial notice without the requirement for evidence on a fact when: A relevant fact is well known, e.g., July 4 is a national holiday. May be taken at any stage of the proceedings at the request of one party and not objected to by the opposing party

18. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-18 Relevant Evidence Has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would appear to be in the absence of that evidence.

19. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-19 Grounds to Exclude Relevant Evidence The evidence would Cause unfair prejudice Confuse the issues in the case Cause a waste of time

20. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-20 Character Evidence General rule is that character evidence is not admissible to show that the defendant is a bad person or that he or she committed the crime in issue. Evidence of defendant’s pertinent trait may be admissible if relevant. Impeachment evidence Prior bad acts are admissible to show a common plan of action.

21. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-21 Rape Shield Laws Designed to prevent unnecessary humiliation of victims of sex crimes. Victim’s prior sexual history is not admissible unless relevant to an issue in the case. Limits on defense’s right to cross-examine victim witness may raise constitutional issues with the defendant’s right to confront the witnesses against him or her.

22. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-22 Witness’s Competency General rule—Federal Rule of Evidence 601— every person is competent to be a witness. Lay witnesses—generally may only testify on matters that they have observed and not their opinions. Expert witnesses—generally may give their opinions based on hypothetical facts.

23. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-23 Impeachment of a Witness Purpose of impeachment is to negate a witness’s testimony. Impeachment evidence is generally not considered as evidence on the ultimate question of guilt.

24. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-24 Admission of Documents Generally must be authenticated Best evidence rule Public records Summaries

25. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-25 Adversary System Our system of justice is based on the adversary system. There are two sides; prosecution and defense. Trial judge acts as the referee. Both sides should come to trial on an equal footing.

26. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-26 Trial Judge Presides over the trial. Most state judges are elected. Federal judges are appointed by the president with the advice and consent of congress.

27. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-27 Duties of Trial Judge Primary reasonability for seeing that justice is carried out. In jury trial, trial judge makes rulings on all legal issues and the jury makes findings on what are the facts involved. Conduct the court in a fairly and orderly manner.

28. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-28 Contempt of Court Contempt—an act that is disrespectful to the court or adversely affects the administration of justice. Direct contempt—acts that generally take place in the presence of the judge–trial judge may summarily punish the offender. Indirect contempt—acts that generally take place out of the presence of the judge—in most cases, requires a due process hearing before punishment may be imposed.

29. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-29 Victim The forgotten party to the trial Many states have adopted victim’s rights legislation that require the prosecutor to inform and consult with the victim before plea bargaining or making other importation decisions regarding the disposition of the case.

30. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-30 Prosecutor Primary duty of the prosecutor is to promote justice. Other duties include Drafting official charges Filing the case with the court or grand jury Prosecuting the case Represents the state or nation

31. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-31 Defense Counsel Has the primary duty of representing the defendant within the legal limits of the law. Required to use his or her skills to protect the rights of the accused even if the accused is guilty.

32. PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ 07458 9-32 Privileged Communications Defendant should have a right to freely discuss the case with his or her counsel. Privileged communications do not cover statements by defendant as to future criminal acts, only past acts. Robert Garrow