Justice Process

1
Justice Process

• Snack bar justice
• Local legal culture
• 13-step process

2
Justice Process

• 1. Legislative Process
• 2. Field Investigation
• 3. Police Station Process
• 4. Complaint Authorization
• 5. Initial Appearance
• 6. Preliminary Hearing
• 7. Arraignment
• 8. Misc. Pretrial Hearings, Motions and
  Strategies
• 9. The Trial
• 10. Sentencing
• 11. Post Sentencing/Appellate Phase
• 12. Corrections
• 13. Cleansing

3
Step 1 Legislative Process

• Declare certain acts illegal
• Establish penalties
• Substantively create the justice system
• Establish the process/the legal procedures
• Outline the legal rights
• Finance the system

4
Step 2 - Field Investigation

• Non interventionist strategy (wiretapping,
  observation, interviews)
• Interventionist strategy
• A. Informal (temporarily detain, stop and
  frisk,
• street informant)
• B. Formal (arrest, cite, search and seize,
• indict, informant/immunity)

5
Common Short-Circuit Options

• Cite and release
• Street arrest, release and stable
• To get through all 13 steps, we must
• assume the worst. Few cases go through
• all the steps. Most are short-circuited out
• somewhere along the way.

6
Step 3 - Police Station Process

• Booking
• Interrogation
• Line up identification
• Mugging
• Inventory
• Station house bail
• Contact an attorney
• Police administration decision

7
Step 4 - Complaint Authorization

• County Attorney/District Attorney
• Probable Cause vs Beyond Reasonable Doubt
• 2/3 never filed/dismissed

8
100 Felony Arrests

• Complaint not filed 50
• 
  50 left
• Dismissed later 15
• 
  35 left
• 
  
• Reduced to Misd. 20
• 
  15 left

9
Fate of the 15 remaining cases

• 11 are plea bargained to a felony
• 4 go to trial
• A. 3 result in a conviction
• B. 1 results in an acquittal

10
Step 5 - Initial Appearance

• Minor Trial Court.
• Without unnecessary delay.
• Habeas Corpus right.
• Court procedures
• 1. Charges are formally levied by the
  prosecutor with
• the court.
• 2. Charges and potential penalties are
  communicated
• by the court to the defendant.
• 3. Rights are communicated and fulfilled.
• 4. A plea is entered.
• 5. A decision is made as to the next step.
• 6. Bail is considered.

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Misdemeanor Case

• Guilty Not
  Guilty
• Sentenced Sentencing Trial Date
• Date
• Bail?
• Bail?

12
Felony Case

• Guilty Not
  Guilty
• Sentenced Sentencing Preliminary Hearing
• Date
• 
  No Yes
• Bail?
  
• Trial
  Date Preliminary
• 
  Hearing
• Bail?
  Date
• 
  Bail?

13
Pre-trial release/Bail

• Amount of bail varies with the severity of the
  offense and the characteristics of the accused.
• Defendant retains a criminal liability just a
  release pending future court processing.
• Different pre-trial release/bail options
• a. Bond yourself out
• b. Bail Bond agent
• c. 10 percent system
• d. ROR/PTR bond

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Leading Bail Court Cases

• Stack v. Boyle (fail to appear test) - Bail may
  be
• denied if there is probable cause to believe
  that
• defendants will fail to appear at future
  judicial
• proceedings.
• U.S. v. Salerno (dangerousness test) - Bail may
  be
• denied if there is clear and convincing evidence
  that
• defendant are dangerous and pose a threat to the
  
• community at large and the court participants in
  
• particular.
• Taylor v. Taintor - Bail bond agents may use
  physical
• force to capture their bondees who have skipped
  bail,
• as long as the force used is reasonably related
  to the
• custody and/or transportation of the bondees.

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Step 6 - Preliminary Hearing

• Mini-trial
• Minor Trial Court
• No jurors
• State presents evidence/defense cannot
• 1. Shred
• 2. Shotgun
• Probable cause the standard
• Judge issues a bind over/case is bound over for
  trial

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Potential Preliminary Hearing Outcomes

• Case is bound over for trial
• Judge dismissed the case for lack of
• evidence
• 1. Individuals are free (subject to the
• statute of limitations)
• 2. Prosecutor may file new charges
• 3. Prosecutor may re-authorize the same
• complaint
• 4. Prosecutor may file a writ of information
• 5. Prosecutor may turn evidence over to a
• grant jury

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Grand Jury

• 12 to 23 citizens
• Meet in secret
• Prosecution or Grand Jury appointed prosecutor
  presents evidence
• Witnesses testify
• Probable cause
• True bill or an indictment

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Step 7 - Arraignment

• Major Trial Court.
• Court Procedures
• 1. Charges are formally levied by the
  prosecutor with the court.
• 2. Charges and potential penalties are
• communicated by the court to the
• defendant.
• 3. Rights are communicated and fulfilled.
• 4. A plea is entered.
• 5. A decision is made as to the next step.
• 6. Bail is considered.

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Step 8 - Miscellaneous Pretrial Hearings, Motions
Strategies

• Wrestling match/Chess match analogy
• Possible hearings
• 1. Continuance
• 2. Change of Venue
• 3. Discovery Hearing
• 4. Evidentiary Hearings (involk the
  Exclusionary Rule)
• 5. Amicus Curiae

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Plea Bargaining

• Brady v. U.S. - Plea bargaining is legal as
• long as
• 1. An attorney is present to protect the
• defendant's rights.
• 2. The plea is voluntarily made.
• 3. The defendant has a full knowledge
• of the consequences.

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Step 9 - The Trial

• A. Judge or Jury?
• 1. Duncan v. Louisiana defendants have
• the right to trial by jury if the potential
• sentence is more than six months of
• incarceration
• 2 Singer v. U.S. defendants have no
• Constitutional right to waive a jury trial
• B. Jury selection process
• 1. Dismissals for cause
• 2. Pre-emptory challenges
• 3. Scientific jury selection

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Scientific Jury Selection

• Ideal Prosecutor Jury white, male, Republican,
  upper income, Protestant, 50 years of age or
  over, Pro-life
• Ideal Defense Jury persons of color, female,
  Democrat, lower income, Jews or Catholics, under
  age 30, teachers, union members

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The Trial Continues

• C. Opening Statements
• 1. State
• 2. Defense
• D. The States Case
• 1. Direct Exam
• 2. Cross Exam
• 3. Objections (sustained/over-ruled)
• 4. Badgering witnesses
• 5. The State rests

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The Trial Continues

• E. The Case for the Defense
• 1. Direct Exam
• 2. Cross Exam
• 3. Objections (sustained/over-ruled)
• 4. Badgering witnesses
• 5. The Defense rests

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The Trial Continues

• F. The Rebuttal
• 1. Direct Exam
• 2. Cross Exam
• 3. Objections (sustained/over-ruled)
• 4. Badgering witnesses
• 5. The State closes

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The Trial Continues

• G. Closing Statements
• 1. State
• 2. Defense
• 3. State
• Principle of Primacy and Recency

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The Trial Continues

• H. Instructions to the jury
• I. The jury deliberates
• 1. sequestered
• 2. gag order
• 3. deadlocked jury
• J. The verdict
• 1. guilty as charged
• 2. guilty of a lesser charge
• 3. not guilty
• 4. hung jury

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Problems with Juries

• 1. Competence of jurors
• A. General intelligence concerns
• B. Amateurs in the legal process
• 2. Structural problems (no note taking, cannot
  ask
• questions)
• 3. Juries depart from the law (nullification and
  vigilanteeism)
• 4. Jury independence (no checks and balances)

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The Trial Continues

• K. Decision step
• 1. Judge polls the jury
• 2. Judgment of acquittal option
• 3. Pre-sentence/sentencing hearing
• date set
• 4. PSI ordered
• 5. Post Conviction bond considered

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Step 10 - Sentencing

• Pre-sentencing hearing
• Sentencing hearing
• Allocution option

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Step 11 - Post-Sentencing or Appellate Phase

• Appellate or post-conviction bond considered
• Possible appeals
• 1. Substantive Sentence Appeal
• 2. Substantive Trial Appeal
• 3. Procedural Trial Appeal

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Step 12 - Corrections

• Administrative Phase
• Supervisory Phase
• Release Phase

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Step 13 - Cleansing

• A. Expungement
• 1. Waiting period
• 2. Behavioral requirements
• 3. Judicial branch
• 4. Automatic
• B. Pardon/Clemency
• 1. No waiting period
• 2. No behavioral requirements
• 3. Executive branch
• 4. Not automatic

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Pardon/Clemency Factors

• Afford relief form undue hardship
• New evidence of innocence
• The defendant is deemed insane
• The offense was a crime of conscience
• The defendant has been rehabilitated

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Step 13 Footnotes

• 1. Expungement is Step 13, but, pardons
• can be given from Step 2 on.
• 2. Hole in your resume
• 3. Pragmatic limitation (police/community know
  who you are stigma still there)