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house with the loot from the robbery, even if the wife wanted to testify against him. Almost all states have abolished this aspect of the privilege; each spouse has the right to decide whether to testify against the other spouse or rely on the privilege and refuse to testify.) Case Example: Hank O’Hare is charged with embezzling sales receipts from his employer. On a number of occasions prior to his arrest, Hank told his wife Hedda in private how he was able to carry out the scheme. Hedda also occasionally went with Hank when he deposited money in an outof-town bank under a false name. Question: Can the prosecution call Hedda as a witness in Hank’s trial to testify to seeing Hank make bank deposits under a false name and to what Hank told her about how he carried out the embezzlement scheme? Answer: As to testifying to Hank’s statements to her, the answer is no. Hank’s statements to Hedda are protected by the spousal communications privilege. Hedda could not testify to Hank’s statements even if she wanted to. As to Hedda’s observation of Hank’s criminal activities, it’s up to Hedda. She can choose to exercise her privilege not to testify against Hank, meaning that she can decide not to testify about seeing Hank make bank deposits under a false name. Question: What if at the time the prosecution calls Hedda to testify against Hank, Hank and Hedda have gotten divorced? Answer: Hedda cannot testify to what Hank told her as to how he was able to carry out the embezzlement scheme. Hank’s statements were privileged when they were
made, and they remained covered by the spousal communications privilege after divorce. However, Hedda no longer has access to the spousal testimony privilege to refuse to testify against Hank. If called by the prosecution to testify, Hedda would have to testify to seeing Hank make bank deposits under a false name.
46. Do privileges exist that might protect statements made by crime victims? Crime victims often incur both physical and psychic injuries, and thus may receive medical treatment and/or psychological counseling. Statements made by crime victims to medical personnel, psychiatrists, and clinical psychologists are generally protected from disclosure by the same privilege rules that may protect defendants’ statements from disclosure. In addition, many states have enacted a privilege for statements made by victims of sexual attacks to crisis counselors. Defendants charged with crimes often argue that their constitutional rights to a fair trial and to confront the witnesses against them should outweigh these victim privileges. For example, a defendant may ask to see a crisis counselor’s notes regarding statements made by an alleged sexual assault victim in order to discover whether the alleged victim told a different story to the counselor than to the police. Few privileges are absolute, and judges sometimes allow defendants access to crisis counselors’ records, especially when a defendant has some evidence that an alleged victim has given conflicting accounts of events. ■
Chapter 19
Motions and Their Role in Criminal Cases Section I: The Basic Procedures……………………………………………………………………………393 1. When during a criminal case are motions made?……………………………………………393 2. What exactly does the average motion involve?……………………………………………..393 3. Do all motions involve this three-step process?………………………………………………394 4. Who can make a motion in a criminal case?………………………………………………….394 5. What happens during a motion hearing?……………………………………………………….394 6. Can stipulations be used in lieu of motions?………………………………………………….395 7. Is it risky to file a motion just to delay the case?……………………………………………..395 8. Can my lawyer make motions without consulting me first?………………………………395 Section II: Common Pretrial Motions…………………………………………………………………….396 9. Can I file a motion asking the judge to lower my bail or change bail to release O.R.?……………………………………………………………………….396 10. What can I do if the prosecutor made mistakes in the document used to charge me with a crime?…………………………………………………………………………397 11. How can I find out the details of what the prosecution claims I did wrong?………..397 12. Can I get a judge to decide whether the charges against me are too severe given the facts of the case?………………………………………………………………..397 13. What motion can I file if I don’t think I can get a fair trial in my town or city?…….398 14. Can I ask the judge to disregard previous convictions on my record when she is imposing sentence on me?……………………………………………….398 15. How can I find out what evidence the prosecution plans to use in my trial?……….399 16. Can I require the prosecution to give my own expert an opportunity to examine evidence in the prosecutor’s possession?………………………………………399 17. How can I find out if a witness is actually a government informant?………………….399 18. How can I find out if the officer who arrested or questioned me has behaved improperly in the past?………………………………………………………………….399 19. How can I show that the police seized evidence illegally and ask the court to keep it out of evidence?………………………………………………………………….400 20. My trial date keeps getting postponed by the prosecution. How can I bring my case to trial?………………………………………………………………………………..400
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Section III: Motions During Trial………………………………………………………………………….400 21. Can I ask the trial judge to rule that certain prosecution evidence is inadmissible before the prosecutor tries to introduce it?…………………………………..400 22. It’s really important to my defense that the jury actually visit the scene. How can I accomplish this?………………………………………………………………………..401 23. What can the defense do when a prosecution witness blurts out testimony that is both unexpected and damaging?………………………………………………………..401 24. The prosecution’s case was weak. Can I try to end the case without putting on evidence?………………………………………………………………………………….402 Section IV: Motions After Trial…………………………………………………………………………….402 25. If a judge or jury finds me not guilty, can the prosecutor ask (move) for a new trial?……………………………………………………………………………….402 26. What can I do if a jury convicts me and I disagree with their decision?………………403 27. My trial is before a judge alone, no jury. What recourse do I have if the judge convicts me?……………………………………………………………………………………404 28. What types of new evidence make it possible that I’ll get a new trial after being convicted by a judge or jury?………………………………………………………405
Chapter 19: Motions and Their Role in Criminal Cases
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his chapter describes motions that parties commonly bring and argue in criminal cases. A motion is a request for a judge to make an order or ruling on a legal issue in the case. A motion may be made orally and involve a simple scheduling matter, such as one party’s desire to postpone a preliminary hearing (a Motion for a Continuance). Or, a motion may consist of a written brief that raises complex legal issues that cut to the very heart of a case. For example, a defendant’s Motion to Suppress Evidence may ask a judge to rule that crucial prosecution evidence is inadmissible at trial because the police seized it illegally. If a judge rules in the defendant’s favor, the prosecution may have to dismiss charges.
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1. When during a criminal case are motions made? Parties may make motions before, during, or after a trial depending on what they are requesting. For example, a Motion to Set Aside a Jury Verdict obviously can’t be made until after a trial is over. Before trial, defendants often file motions to attack the admissibility of certain types of prosecution evidence. A ruling in favor of the defense on such a motion may result in dismissal of charges or at least a plea bargain highly favorable to the defendant.
2. What exactly does the average motion involve? Typically, motions involve three distinct stages:
Motions can be confusing. This chapter highlights a few of the many important rules and procedures involved in handling motions in a criminal case. But it is not a comprehensive guide. Unrepresented defendants who need to make or respond to motions would be wise to consult counsel or, at the very least, to thoroughly research local court rules and procedures governing motions.
Section I: The Basic Procedures This section provides an overview of how motions are brought and handled in the typical criminal case.
a. Giving notice (advising an adversary that you are making a motion) Notice can be given orally or in writing, depending on the type of motion. To give notice orally, a defense attorney might say during a defendant’s arraignment, “Your Honor, the defense intends to move the court for a ruling that the prosecution may not offer the knife in evidence.” Written notice is given by preparing a Notice of Motion. The notice is filed with the court and mailed to the adversary. Most jurisdictions require that the notice and accompanying papers: • Identify the specific order a party wants the judge to make; • Explain the facts giving rise to the motion (in writing, in the form of an
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affidavit or declaration under penalty of perjury); and • Explain the legal basis for the request in a document that is sometimes called a Memorandum of Points and Authorities. This document resembles an appellate brief, and may consist of many pages of legal arguments and case citations.
b. Hearing the motion During the hearing, each party has a chance to make oral arguments that may convince a judge to grant (“sustain”) or deny the motion.
c. Judge’s ruling The judge hearing the motion may rule immediately after the argument, or the judge may “take the matter under submission” and issue a ruling days, even weeks, later. In complex situations, the judge may invite the parties to submit further written legal arguments before making a ruling.
Written Arguments Can Help Defendants Even when not required to do so, many defense lawyers routinely support their motions with written briefs for three reasons: 1) a judge may take written arguments more seriously; 2) judges often make up their minds based on written arguments, before the attorneys argue orally during a hearing; and 3) the defendant will have a record on which to rely during an appeal should the judge deny a particularly important motion. (For more on court records and appeals, see Chapter 23.)
3. Do all motions involve this threestep process? No. The defense or prosecution sometimes make motions and argue them immediately, especially if the motions are made in the middle of trial. Even before or after trial, the parties may agree to waive (give up) the right to advance notice of a motion and argue immediately. Also, the parties may forgo oral argument and ask the judge to just rule on a motion “based on the papers.”
4. Who can make a motion in a criminal case? Typically, only the actual parties to the case (the defense and prosecution) can file motions. Sometimes, others who want to assert rights may file motions. For example, in several recent high-profile cases, TV stations have filed motions requesting that judges allow the televising of court proceedings.
5. What happens during a motion hearing? Hearings on motions are usually relatively short, sometimes just a few minutes. Judges handle motion hearings by themselves, without juries. The judge normally has read the parties’ briefs before the hearing, and therefore doesn’t want the parties to simply repeat what they wrote. The judge may ask questions and then give the prosecution and defense each a chance to answer and make an argument to persuade her of their position.
Chapter 19: Motions and Their Role in Criminal Cases
6. Can stipulations be used in lieu of motions? Yes. Before making motions, defense lawyers often ask prosecutors (or vice versa) to stipulate (agree voluntarily) to a request. For example, a defense attorney who wants to continue (delay) a preliminary hearing may simply ask the prosecutor to agree to a new date. If the prosecutor agrees to the delay, the defense need not make a formal motion. Instead, the parties might simply file a written stipulation in court informing the court of the new date. However, some court rules require the judge to approve any stipulations before they are put into effect. Case Example: The prosecutor, Rose Martinez, and the defense lawyer, Armando Lindan, agree to postpone the preliminary hearing of defendant Julie Daniels from March 8, the originally scheduled date, to April 25, a date that has been cleared with the court clerk. Question: What do the prosecutor and defense lawyer do then, after they agree to the new date? Answer: One of the attorneys prepares a stipulation and files it with the court.
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Hallway Hearings Procedures in criminal courts are often informal. A defense attorney and prosecutor may work out a continuance (or other pretrial issue) informally while standing in a hallway waiting for the judge to call the case. In most cases, judges merely rubberstamp voluntary agreements. When an agreement results in a defendant waiving (giving up) legal rights, however, the judge often asks the defendant to personally waive the rights on the record. For example, a judge might ask the defendant to personally stipulate to a continuance to show that the defendant is not insisting on a speedy trial.
7. Is it risky to file a motion just to delay the case? Motions filed for the sole purpose of delaying proceedings are considered frivolous (baseless or made for an improper purpose) and can lead to the offending party being fined by the judge.
8. Can my lawyer make motions without consulting me first? Attorneys often make decisions about what motions to file and when to file them without involving their clients. In some cases, this is because the attorney views the decision to file a particular motion as a tactical one, which the attorney believes he is better qualified to determine than the client. In other cases, the issue comes up suddenly, and the attorney has no time to consult the defendant. Defendants who want more hands-on involvement in their cases
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should probably ask their lawyers ahead of time to consult them whenever possible. (See Chapter 8 for more on working with defense counsel.)
Section II: Common Pretrial Motions This section describes the types of pretrial motions most commonly brought in criminal cases.
Motion
Question
Motion to Modify Bail
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Motion to Dismiss Complaint
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Motion for Bill of Particulars
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Motion to Reduce Charges
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Motion for a Change of Venue
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Motion to Strike a Prior Conviction
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Motion for Discovery
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Motions to Preserve Evidence
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Motion to Disclose Identity of an Informant
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Motion to Examine Police Personnel File
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Motion to Suppress Evidence
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Motion for Speedy Trial
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9. Can I file a motion asking the judge to lower my bail or change bail to release O.R.? Defendants can ask for a change in their bail status with a Motion to Reduce Bail. Motions to reduce bail are common. Bail may have been set originally by some standard measure, perhaps by police at the station house. And defendants often file motions to reduce that bail based on their individual circumstances. Even if a judge has already set bail, the defendant may bring new circumstances to the judge’s attention in a Motion to Reduce Bail. (See Chapter 5 for more on the factors that may persuade a judge to lower bail.) Case Example: Ken Ahura was arrested for driving under the influence. Ken and his family recently moved from another state, and at the time of his arrest Ken was unemployed. Using a bail schedule, the police set Ken’s bail at $10,000, far in excess of what he could afford. Question: How can Ken get a judge to lower bail? Answer: At Ken’s first court appearance, Ken’s lawyer should make a motion for a reduction of bail. The lawyer would stress the hardship to Ken and his family of his being in jail, and any factors indicating that Ken will show up as necessary and abide by conditions of bail. Defense motions for reduced bail are often made orally. Even if the judge rejects Ken’s first motion to reduce bail, Ken may make additional bail reduction motions if there is a change in circumstances, such as a job offer or a person well known and respected in the community who is willing to vouch for him.
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10. What can I do if the prosecutor made mistakes in the document used to charge me with a crime?
11. How can I find out the details of what the prosecution claims I did wrong?
A defendant can attack an improper complaint with a Motion to Dismiss for Vagueness or a Motion to Dismiss Based on Improper Jurisdiction. A criminal complaint must specify the crime(s) charged, the defendant(s) accused of such crime(s), and the authority for the prosecution to make such charge(s). The complaint must also allege that the defendant committed each and every element of the crime(s) charged. For example, the crime of larceny (theft) typically includes the following elements: 1) the taking and carrying away, 2) of property of another, 3) with the intent to deprive that person permanently of the property in question. Theoretically, the failure of the complaint to allege each of these elements should result in the case being dismissed upon a motion by the defense. However, those kinds of motions are uncommon. Prosecutors use the same forms over and over, and toss out defective ones. Also, the prosecution is usually free to amend (change) any mistakes, so motions to dismiss based on technical violations are rarely useful. However, this is not always true. For example, a successful dismissal motion may prevent the prosecution from refiling charges when a statute of limitations (a law that requires a complaint to be filed within a specified time period) will expire before new charges can be filed.
The defendant can file a Motion for Bill of Particulars to learn the basis of the formal charge that the defendant faces. If the motion is granted, the judge will then order the prosecutor to describe with particularity just what the defendant did wrong. Among other benefits, this may help the defense figure out an appropriate strategy to fight the charges. In most jurisdictions, this type of motion usually is unnecessary, as the defense is routinely given a copy of the police report upon which the criminal complaint was based. However, if the police report does not provide adequate guidance as to facts underlying the prosecution’s charge, a motion for a bill of particulars can be very useful. (See Chapter 14 for more on police reports.)
12. Can I get a judge to decide whether the charges against me are too severe given the facts of the case? Yes, by filing a Motion to Reduce Charges. This is not a common motion, because 1) in most states judges do not normally review the evidence against a defendant prior to trial in misdemeanor cases, and 2) in felony cases, most states have a procedure called a preliminary hearing (see Chapter 16) in which the judge decides whether the prosecution’s felony case is adequately supported by the evidence. More typically, defendants seek reduced charges by plea bargaining with prosecutors, offering to
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plead guilty to lesser crimes. (See Chapter 20 for more on plea bargaining.)
13. What motion can I file if I don’t think I can get a fair trial in my town or city? A defense Motion for Change of Venue asks the judge to relocate the case to a different location. Generally, criminal court proceedings (pretrial and trial) take place in the county where the alleged crime occurred. Defendants sometimes ask for a change of venue (location) when excess pretrial publicity makes it difficult to find unbiased jurors in the locality where a case is pending. If the judge agrees and determines that as a result of the publicity the defendant is unable to get a fair trial, the judge may grant the motion. Even where the defendant has received extensive negative publicity, the defense may choose not to ask to have the case moved because: • The case may be sent to an even more undesirable location; • The defendant may end up far away from family and friends; • Defense counsel may be at a disadvantage not having an office close by the courtroom; or • The cost of a trial away from the defense attorney’s home base may be more than the defendant can afford.
14. Can I ask the judge to disregard previous convictions on my record when she is imposing sentence on me? Defendants can sometimes reduce the severity of charges by filing a Motion to Strike a Prior Conviction. Defendants with prior records are often sentenced much more harshly than first offenders, and may even be charged with more serious offenses at the outset. (See Chapter 22 for more on sentencing and Chapter 6 for more on charging.) For example, a misdemeanor may be filed as a felony if a defendant is a repeat offender. For these reasons, it is especially critical to an effective defense to challenge prior convictions where appropriate. The most common reason for a judge to strike a prior conviction is a procedural irregularity or constitutional violation associated with the prior conviction. For example, the defendant may have been denied counsel at a critical stage of the case that resulted in the prior conviction, or the defendant may have entered into a plea bargain unknowingly or because of coercive practices by the police. (See Chapter 20 for more on plea bargaining.) Sometimes defense counsel can convince the judge in the current case that fairness requires the prior conviction to be disregarded—struck— where the defendant has since engaged in a long period of good behavior or formal rehabilitation.
Chapter 19: Motions and Their Role in Criminal Cases
Court Records Can Be Wrong It is not unusual for rap sheets (records of prior convictions) to contain mistakes. For example, a misdemeanor conviction may have been erroneously recorded as a felony. As a routine matter, defense lawyers typically review conviction records for errors, and sometimes have defendants review the records as well.
15. How can I find out what evidence the prosecution plans to use in my trial? Defendants can file a Motion for Discovery to find out information in prosecutors’ files. Technically, such motions are unnecessary. Prosecutors have a legal duty to turn over any information that might help the defendant, even if the defendant fails to ask for it. And many prosecutors voluntarily hand over all the information that the defense is entitled to see, such as police reports and lab tests. But a thorough defense lawyer may be convinced that it’s still a good idea to put a formal motion for discovery on the record. (For more information about discovery, see Chapter 14.)
16. Can I require the prosecution to give my own expert an o pportunity to examine evidence in the prosecutor’s possession? Defendants can file a Motion to Preserve Evidence to force prosecutors to keep evidence safe long enough for the defense to run its own tests. For example, if a police lab indicates that the percentage of alcohol in a
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defendant’s blood was .12%, the defendant may want a judge to order the prosecutor to preserve the blood sample so that the defense can run its own test. (See Chapter 24 for more on blood-alcohol tests.)
17. How can I find out if a witness is actually a government informant? Defense attorneys can find out whether the prosecution is relying on a government informant by filing a Motion to Disclose Identity of a Confidential Informant. Defense attorneys often try to attack a witness’s credibility by showing that the witness is a paid informant who has something to gain (frequently money or reduced charges in the informant’s own case) by testifying against the defendant. With this motion, the defense may request that the court order the prosecution to reveal an informant’s identity and location. The prosecution can be counted on to vigorously oppose this motion in order to protect the identity of the informant. If the judge grants the motion, the prosecution may even dismiss the case rather than lose a valuable police resource.
18. How can I find out if the officer who arrested or questioned me has behaved improperly in the past? When a police officer’s past history is relevant to the defense, the defendant may gain access to portions of the police officer’s personnel file by filing a Motion to Examine Police Officer’s Personnel File. If successful, the defense can review the file to determine whether the officer has been implicated
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previously in any wrongdoing. The record may reveal that the officer has been reprimanded in the past for use of excessive force, planting evidence, or exhibiting racial prejudice. If so, the defense may be able to use this information to deflate the officer’s credibility and, accordingly, weaken the prosecution’s case. However, judges do not let defendants go on fishing expeditions into police officer files. Unless a defendant can demonstrate a specific purpose for the request, this motion probably won’t be granted. (See Chapter 14 for more on discovery.)
19. How can I show that the police seized evidence illegally and ask the court to keep it out of evidence? One of the most common pretrial motions is a Motion to Suppress (exclude) improper evidence. This motion can request the exclusion of evidence obtained as a result of: • an improperly-obtained confession (for additional information about confessions, search and seizure, and identification procedures, see Chapters 1, 2, and 4, respectively); • an improper search or arrest; or • a tainted identification such as a lineup.
20. My trial date keeps getting postponed by the prosecution. How can I bring my case to trial? Defendants are entitled to be tried relatively quickly unless they give up (waive) this right somewhere during the case. A defendant can
enforce his right to be tried quickly by filing a Motion for a Speedy Trial. The defense can file this motion to force the prosecutor to abide by rules limiting the amount of time that can pass before the defendant is brought to trial. Because delays often benefit the defendant (witnesses’ memories fade or they move or die, evidence is lost, and prosecutors lose momentum and are often more willing to deal), defense lawyers typically don’t insist on speedy trials. (For additional discussion of speedy trial rights, see Chapter 17.)
Section III: Motions During Trial This section provides an overview of the motions that the defense commonly brings during a trial.
21. Can I ask the trial judge to rule that certain prosecution evidence is inadmissible before the prosecutor tries to introduce it? Yes, by making a Motion in Limine. This bit of Latin means “at the very beginning.” By attacking prosecution evidence through a Motion in Limine rather than waiting until the prosecution introduces the evidence at trial, a defendant tries to prevent the jury from ever hearing about evidence that the judge rules inadmissible. Motions in Limine are often made orally, though they may be supported with a Memorandum of Points and Authorities. (For more information on this motion, see Chapter 21, Section IV.)
Chapter 19: Motions and Their Role in Criminal Cases
Case Example: Grant Jordan faces trial on drunk driving charges. The prosecutor plans on introducing testimony from several witnesses, including Dr. Joyce, who performed Grant’s postarrest blood test. In the doctor’s report (reviewed during discovery by the defense), the doctor noted that she’d seen the accused “plastered” in a local bar a week before the accident. Question: Is there anything the defense lawyer can do to make sure the jury never hears about what the doctor saw the week before? Answer: Yes, the defense can file a Motion in Limine requesting that the doctor’s notes about the week before be stricken from the report so the jury never sees them. That the doctor thought the defendant was drunk the week before is irrelevant to the defendant’s state at the time of the accident, and the “plastered” comment is highly prejudicial. The doctor will still be able to testify about the results of the blood-alcohol test.
Some courts routinely conduct conferences with counsel before jurors are selected, to handle procedural matters related to the trial, including any Motions in Limine the lawyers plan to make. Motions in Limine are a critical component of the typical criminal case. Even though there are many ways to discredit witnesses, once a witness refers to damaging evidence, it’s difficult for jurors to disregard what they’ve heard—to, as they say, “unring the bell.” So much the better, therefore, to address the question in advance and not let the bell be rung in the first place.
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22. It’s really important to my defense that the jury actually visit the scene. How can I accomplish this? The defendant can ask the judge to escort jurors on a visit to scenes of important events by filing a Motion to Allow Jury to View the Crime Scene. Unfortunately, judges incur costs and time delays by granting such motions. Thus, a defendant has to support such a motion with a strong argument as to why the jurors should visit a scene, and the inadequacy of an alternative (such as photographs or videotape).
23. What can the defense do when a prosecution witness blurts out testimony that is both unexpected and damaging? Ideally, attorneys can object to improper evidence before jurors hear it. If the evidence is anticipated, the objection can be made in a Motion in Limine. (See Question 21.) But it’s obviously impossible to anticipate everything a witness will say. When jurors do hear improper evidence, the defense can make a Motion to Strike Testimony, followed up by asking the judge to instruct the jurors to disregard the stricken testimony. Even though it is difficult for jurors to disregard something they have heard, it is important for defendants to move to strike improper testimony for at least four reasons: • Even though the witness should not have made the statement in the first place, jurors can consider evidence unless it is formally stricken by the judge;
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• If jurors, during deliberations, ask for testimony to be read back, they will not hear the stricken testimony; • The instruction may hurt the credibility of a prosecution witness. When jurors are told to disregard portions of a witness’s testimony, the jurors may perceive the witness as a partisan who is unwilling to follow the rules of trial; and • Stricken testimony does not become part of the record on appeal. (More on appeals in Chapter 23.)
24. The prosecution’s case was weak. Can I try to end the case without putting on evidence? Yes, by filing a Motion for Dismissal (or acquittal). After the prosecution presents all of its evidence, the defense can ask the judge to acquit the defendant at once on the ground the prosecution hasn’t made out a strong enough case to convict. Defense lawyers try to make this motion out of the presence of the jury so that if the judge denies the motion (and likely the judge will), the jury won’t interpret the denial as meaning the judge thinks the defendant is guilty. Case Example: Vic Trola is a public defender representing Yu Kaleili on kidnapping charges. The prosecution’s main evidence was the victim’s testimony that Kaleili intentionally forced the victim to enter his car and would not let her leave. During Trola’s cross-examination, the victim admitted to entering Kaleili’s car willingly.
The victim also testified that Kaleili never tried to stop the victim from leaving the car; the victim stated that it was her “impression” that Kaleili would not permit her to leave. After the prosecution rested its case, Trola made a Motion for Dismissal, arguing that the prosecution had failed to prove an essential element of kidnapping: that Kaleili detained the victim against the victim’s will. Question: Will Trola’s motion be granted? Answer: Quite possibly. The victim’s testimony casts doubt on whether Kaleili detained the victim by force. If the judge believes that a jury would be unjustified in concluding beyond a reasonable doubt that Kaleili detained the victim, the judge should grant the Motion to Dismiss.
Section IV: Motions After Trial This section describes the motions that are commonly brought by the defense after the trial has concluded with a guilty verdict.
25. If a judge or jury finds me not guilty, can the prosecutor ask (move) for a new trial? No. That’s the end of the case. If a jury or judge finds a defendant not guilty as to all charges, the prosecution cannot appeal, nor can the prosecution ask the judge to set aside the verdict and order a new trial. A retrial would violate the defendant’s constitutional right against double jeopardy. Even if the judge, prosecutor, and half the nation think a jury’s decision is wrong,
Chapter 19: Motions and Their Role in Criminal Cases
a not guilty verdict is final. The only motion following not guilty is normally the defendant leaving the courtroom as quickly as possible.
26. What can I do if a jury convicts me and I disagree with their decision? Defendants who think they’ve been wrongfully convicted have a number of options. 1. The defendant can make a motion asking the trial judge to overturn the jury’s guilty verdict and enter a verdict of not guilty. A judge who believes that a guilty verdict was unreasonable can change it to not guilty. Judges seldom acquit defendants in the face of a jury’s guilty verdict, since the jury is supposed to decide factual disputes. Technically, the judge could order an acquittal based on defense evidence, but this would only happen if the defense presented compelling proof of factual or legal innocence, something that seldom happens outside of the movies and Perry Mason. 2. A defendant can move for a new trial—that is, ask the judge to set aside the jury’s verdict, declare a mistrial, and start over. Defendants may move for new trials based on a variety of grounds. The broadest rules give judges the power to grant a new trial “if required in the interest of justice” (Federal Rule of Criminal Procedure 33). Other rules identify specific grounds on which judges can grant new trials. For example, Florida Rule of Criminal Procedure 3.600 authorizes judges to grant new trials for reasons including the following:
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a. The defendant has discovered new and important evidence that couldn’t have been discovered prior to trial; b. The jurors engaged in misconduct during the trial; c. The judge or prosecutor committed an important legal error; or d. The judge gave an improper jury instruction. Defendants are not entitled to a perfect trial. Typically, even when there are mistakes, judges consider them harmless error—not so serious as to require the setting aside of a verdict—if they probably had little or no effect on the jury when it reached its guilty verdict. If the trial judge does grant the defense motion for a new trial, the prosecution can appeal and challenge the judge’s decision. But the judges who hear appeals commonly allow trial judges wide discretion in their decisions to grant or deny new trial requests. Appellate judges know that they only review a written record, while the trial judge actually saw and heard the witnesses. Accordingly, appellate judges only reverse trial judges’ decisions to grant new trials when the written record clearly shows the trial judge’s decision was wrong (or “clearly erroneous,” as appellate court judges like to say). 3. Defendants can appeal (ask a higher court to reverse the conviction) because the trial judge or jurors made a mistake.
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Deadline to Move for New Trial Defendants who want to make a motion for a new trial must typically do so very soon after the jury reaches a verdict. In federal court, new trial motions must be made within seven days, unless they are based on newly-discovered evidence, and even those must be made within three years after the final judgment. (See Federal Rule of Criminal Procedure 33.)
Answer: Yes. Juror misconduct is proper grounds for a new trial, and all of the following are prohibited: • Jurors considered evidence not presented in court (Oblido’s field trip experiments); • At least one juror convicted to go along with others and not out of personal conviction (Rogers); and • One juror (Travis) appeared to have based his verdict on racial prejudice.
Case Example 2: Anna Rose was convicted Case Example 1: Motion for New Trial Because of Juror Misconduct. (The following case example illustrates one reason a judge might grant a new trial: juror misconduct.) Julio Daniels was convicted for burglarizing the Lomida Candy Shoppe. After the verdict, one juror, Rosalie Man-Doe, told a reporter about the deliberations. Rosalie said a juror named Kelsey Oblido had gone to the Shoppe and measured the opening in a broken window. Oblido told them it was “plenty big enough for Daniels,” and urged them to ignore defense arguments that no one of Daniels’s size could have climbed through. Oblido’s “evidence” persuaded Rosalie and another juror, Linda Rogers. Rogers was apparently unsure but said she wanted to do what was right; if the others were sure, then she, too, would convict. Another juror, Clayton Travis, had made racial slurs about the defendant. Among other things, Travis announced that he “knew” Julio Daniels was guilty because “all those people are criminals.” Question: Based on Rosalie’s report, does Daniels have grounds to move for a new trial?
by a jury of burglary. John Fell testified for the prosecution and identified Anna as the burglar. Anna’s attorney moves for a new trial based on Fell’s having whispered after the verdict that he believed he’d made a mistake. Question: Must the judge grant Anna’s motion? Answer: No. Judges often believe that witnesses and even jurors suffer from postverdict remorse, and too easily want to take back what they did or said. Here the judge might conclude that Fell’s recantation is not believable, or that even without Fell’s testimony the prosecution had sufficient evidence to convict Anna, in which case any error would be harmless. In either event, the judge would deny Anna’s motion.
27. My trial is before a judge alone, no jury. What recourse do I have if the judge convicts me? For many of the same reasons that a defendant may move for a new jury trial, a convicted defendant may ask the judge to: • modify the verdict (for instance, change it from conviction on one charge to conviction on a lesser charge); or
Chapter 19: Motions and Their Role in Criminal Cases
• vacate the verdict (withdraw it altogether and order a new trial). Because these motions ask the judge to—in effect—overrule herself, they are not usually successful. Nonetheless, in certain situations, such a motion might be worth a try—for instance, where new and important evidence is discovered that might persuade the judge to change her mind.
28. What types of new evidence make it possible that I’ll get a new trial after being convicted by a judge or jury? As mentioned earlier, one reason a judge may grant a new trial is that the defense discovers new and helpful evidence that for some very good reason was not available at the time of trial. Defense counsel’s being on vacation and not having adequate time to prepare is not considered a good reason. But the recent surfacing of an alibi witness who had fled to Argentina may be. Another possible good reason is that scientific evidence that was not available at trial becomes available. Old cases have been reopened, for instance, to analyze blood samples with new DNA technology.
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Case Example: Guy Goode was convicted of rape; his defense was mistaken identity. One year after Goode’s conviction, scientists develop a new test that demonstrates that he was not the source of the semen found in the rape victim. Question: Should the trial judge grant a new trial based on this information? Answer: Yes. The information qualifies as newly-discovered evidence, since the scientific test was unknown at the time of Goode’s trial. Moreover, the evidence is important; had it been offered at the time of trial, it might well have produced a different verdict.
Writ Proceedings in the Trial Court Writs, discussed further in Chapter 23, are generally orders from higher courts to lower courts. However, in some states defendants can seek special relief from the trial court itself, in limited situations, through a proceeding called a writ coram nobis. For example, using this writ a defendant might ask the trial court itself to reopen a case to review facts that the defendant could not present during trial, either because they were not known or for some other extraordinary reason (for instance, the defendant had been threatened and was afraid to present facts that would have led to an acquittal). n
Chapter 20
Plea Bargains: How Most Criminal Cases End Section I: Plea Bargaining—The Basics………………………………………………………………….409 1. Are there other terms for a “plea bargain”?……………………………………………………409 2. When are plea bargains made?……………………………………………………………………409 Section II: The Pros and Cons of Plea Bargains……………………………………………………….410 3. If I plead guilty or no contest, will I have a criminal record?…………………………….410 4. What does it mean to plead “no contest” or “nolo contendere” rather than guilty?……………………………………………………………………………………..410 5. What incentives do I have to enter into a plea bargain?…………………………………..410 6. What’s in a plea bargain for the prosecution? Why does the court accept them?………………………………………………………………..412 7. How might a plea bargain benefit victims?……………………………………………………414 Section III: The Plea Bargaining Process………………………………………………………………..414 8. What happens in a plea bargain?…………………………………………………………………414 9. Can my lawyer arrange a plea bargain without me?………………………………………..414 10. What role does the judge play in plea bargaining?………………………………………….414 11. Does the judge have to go along with the deal the lawyers work out?………………..415 12. Do victims have a role in the plea bargaining process?……………………………………415 13. What factors enter into a judge’s decision to accept or reject a plea bargain?…………………………………………………………………………………416 14. Assuming the agreement reached in a plea bargain is in the ballpark, what additional role will the judge play?………………………………………………………416 15. I don’t want to plead guilty, but I’m told the judge will treat me worse if I go to trial and lose. Is this true?……………………………………………………………….418 16. What happens after a plea bargain is reached?………………………………………………418
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Section IV: The Strategy of Negotiating Plea Bargains……………………………………………..419 17. When prosecutors file charges, do they already have a plea bargain in mind?…….419 18. Will different defendants charged with the same crime in the same court end up with pretty much the same plea bargain?……………………………………………419 19. What is a “standard deal”?………………………………………………………………………….420 20. How can I find out what the standard deal is for my case?……………………………….420 21. What other factors might influence the deal in my case?………………………………….420 22. How tricky is it to arrange a plea bargain? Do I have to have a lawyer to negotiate a good deal?……………………………………………………………………………420 23. How do I know when to take the deal?…………………………………………………………421 24. Don’t defense lawyers just push people to take deals because it’s easier for the lawyers?…………………………………………………………………………..422 25. Can I do anything if I feel that I made a bad deal?…………………………………………..423
Chapter 20: Plea Bargains
A
plea bargain is an agreement between the defense and the prosecutor in which the defendant agrees to plead guilty or no contest in exchange for an agreement by the prosecution to drop some charges, reduce a charge to a less serious charge, or recommend to the judge a specific sentence acceptable to the defense. As criminal courts become ever more crowded, prosecutors and judges alike feel increased pressure to move cases quickly through the system. Trials can take days, weeks, or sometimes months, while guilty pleas can often be arranged in minutes. Also, the outcome of any given trial is usually unpredictable, whereas a plea bargain provides both prosecution and defense with some control over the result—hopefully one that both can live with to some extent. For these reasons and others, and despite its many critics, plea bargaining is very common. More than 90% of convictions come from negotiated pleas, which means less than 10% of criminal cases end up in trials. And though some still view plea bargains as secret, sneaky arrangements that are antithetical to the people’s will, the federal government and many states have written rules that explicitly set out how plea bargains may be arranged and accepted by the court. (See Federal Rule of Criminal Procedure 11(e).)
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Section I: Plea Bargaining— The Basics This section provides a general overview of the plea-bargaining process.
1. Are there other terms for a “plea bargain”? A plea bargain may also be called a plea agreement or negotiated plea. Lawyers may also casually say they got a great deal or that the prosecution offered a particular sentence.
Different Types of Plea Bargaining Plea bargaining can be conveniently divided into two types: sentence bargaining and charge bargaining. Sentence bargaining is a method of plea bargaining in which the prosecutor agrees to recommend a lighter sentence for specific charges if the defendant pleads guilty or no contest to them. Charge bargaining is a method where prosecutors agree to drop some of the counts of a charge or reduce the charge to a less serious or less prejudicial offense in exchange for a plea by the defendant.
2. When are plea bargains made? This depends on the court and the jurisdiction. Some jurisdictions only allow plea bargains during certain phases of the criminal process. In many other places, however, plea bargains can be worked out virtually any time—from shortly after the defendant is arrested (before the prosecutor files criminal charges) up to
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the time a verdict is reached—even during trial itself. Also, if the trial results in a hung jury (the jurors are split and cannot make the unanimous decision required), the prosecution and defense can (and frequently do) negotiate a plea rather than go through another trial.
Section II: The Pros and Cons of Plea Bargains This section explains why a defendant may or may not wish to enter into a plea bargain.
3. If I plead guilty or no contest, will I have a criminal record? A guilty or no contest plea entered as a judge-approved plea bargain results in a criminal conviction; the defendant’s guilt is established just as it would be after a trial. The conviction will show up on a criminal record (rap sheet). And the defendant loses any rights or privileges, such as the right to vote, that the defendant would lose if convicted after trial.
4. What does it mean to plead “no contest” or “nolo contendere” rather than guilty? A no contest or nolo contendere plea in essence says to the court, “I don’t choose to contest the charges against me.” This type of plea, often part of a plea bargain, results in a criminal conviction the same as does a guilty plea. And a no contest plea will show up on
a criminal record. However, if the defendant is later sued in civil court by the victim, the no contest plea itself sometimes cannot be used in the civil case as an admission of guilt. A guilty plea, on the other hand, does serve as an admission of guilt and can be introduced in civil cases as evidence against the defendant.
5. What incentives do I have to enter into a plea bargain? For most defendants, the principal benefit to plea bargaining is receiving a lighter sentence for a less severe charge than might result from taking the case to trial and losing. Example: David Neustadt is charged with 20 counts of burglary—from a spree of burglaries in his neighborhood. Assistant District Attorney Rachel Marks offers to drop the charges to two counts of burglary if David pleads guilty right away. David takes the deal, because his sentence will be shorter and he will be eligible for parole earlier than if he were convicted on every charge at trial.
Another fairly obvious benefit that defendants can reap from plea bargaining is that they can save a bundle on attorneys’ fees (assuming they are represented by private counsel). It almost always takes a lot more time and effort to try a case than to negotiate and handle a plea bargain, so defense counsel typically charge a much higher fee if the case goes to trial. There may also be other benefits for defendants who plead guilty or no contest, such as the following:
Chapter 20: Plea Bargains
a. Getting out of jail In-custody defendants who either do not have the right to bail or cannot afford bail may get out of jail immediately following the judge’s acceptance of a plea. Depending on the offense, the defendant may get out altogether or on probation, with or without some community service obligations. Or, the defendant may have to serve more time, but will still get out much sooner than if he insisted on going to trial.
Benefits of Move From Jail to Prison Even if the plea results in the defendant being moved from jail to prison, this also, paradoxically, may occasionally be a benefit. A move to prison can be a step up if the jail conditions are worse than prison conditions. And convicts in prison may have privileges that defendants awaiting trial in jail don’t have. Furthermore, even when defendants go to prison, there is some intangible benefit to simply having resolution—knowing how long they will be in, rather than what may feel like endless waiting around in jail.
b. Getting the matter over quickly This has the intangible benefit, touched on above, of providing resolution to what is almost always a stressful event (being charged with a crime). People who are charged with a crime, for example, while on vacation might opt for a plea bargain in order to get back home sooner. And
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defendants with jobs who are charged with minor offenses may prefer to resolve the case in one court appearance rather than missing work repeatedly. Going to trial usually requires many more court dates than taking a plea bargain.
c. Having fewer and/or less serious offenses on one’s record Pleading guilty or no contest in exchange for a reduction in the number of charges or the seriousness of the offenses looks a lot better on a defendant’s record than the convictions that might result following trial. This can be particularly important if the defendant is ever convicted in the future. For example, a second DUI conviction may carry mandatory jail time, whereas if the first DUI offense had been bargained down to reckless driving (for example), there may be no jail time for the second DUI arrest. (See Chapter 24 for more on the penalties associated with repeat drunk driving offenses.) Even for people who are never rearrested, getting a charge reduced from a felony to a misdemeanor, or from a felony that constitutes a strike under a “three strikes” law to one that doesn’t, can prove to be a critical benefit. Some professional licenses must be forfeited upon conviction of a felony. Future employers may not want to hire someone previously convicted of a felony. Felony convictions may be used in certain court proceedings (even civil cases) to discredit people who testify as witnesses. Felons can’t own or possess firearms. And in many jurisdictions, felons can’t vote.
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d. Having a less socially stigmatizing offense on one’s record Prosecutors may reduce charges that are perceived as socially offensive to less offensive charges in exchange for a guilty plea. For example, a prosecutor may reduce a molestation or rape case to an assault. This can have a major impact on the defendant’s relationship with friends and family. Perhaps even more critical, sometimes defendants convicted of stigmatizing offenses may be at a greater risk of being harmed (or killed) in prison than if they are convicted of an offense that doesn’t carry the same stigma.
e. Avoiding hassles Some people plead guilty, especially to routine, minor first offenses, without hiring a lawyer. (See Chapter 10.) If they waited to go to trial, not only would they have to pay money to a lawyer but they would have to find and hire a lawyer and might well spend time working with the lawyer to prepare for trial.
f. Avoiding publicity Famous people, ordinary people who depend on their reputation in the community to earn a living, and people who don’t want to bring further embarrassment to their families all may chose to plead guilty or no contest to get (and keep) their names out of the paper as quickly as possible. While news of the plea itself may be public, the news is short-lived compared to news of a trial. And rarely is a defendant’s background explored in the course of a plea bargain to the extent it may be done in trial.
g. Keeping others out of the case Some defendants plead guilty to take the blame (sometimes called the “rap”) for someone else, or to end the case quickly so that others who may be jointly responsible are not investigated.
Factors That Affected Detective Fuhrman’s Plea Bargain Retired detective Mark Fuhrman, infamous for having denied using racial slurs during the O.J. Simpson criminal trial, pleaded no contest to perjury charges. Fuhrman apparently “didn’t have the money to wage a long court battle and didn’t want to put his family through such a trial.” Said Fuhrman, “… I don’t think the city of Los Angeles either deserves or could handle a trial like this … I cut my losses and everybody else’s” (From “Fuhrman Grants Interview. Apologizes for Slurs,” L.A. Times, October 8, 1996 at B1).
6. What’s in a plea bargain for the prosecution? Why does the court accept them? For judges, the primary incentive to accept plea bargains is to move along their crowded calendars. Most judges simply don’t have time to try every case that comes through the door. Additionally, because jails are overcrowded, judges may face the prospect of having to let convicted people (housed in the same facilities as those awaiting trial) out before they complete their sentences. Judges often reason that the quicker those
Chapter 20: Plea Bargains
offenders who are not likely to do much jail time anyway are “processed” out of jail (by plea bargains), the fewer problems with overcrowding, and the less frequently serious offenders will be let go before their full sentence has been served. For a prosecutor, the judge’s concerns about clogged calendars are the prosecutor’s concerns as well. When the judge is bogged down, the judge yells at prosecutors to move cases along quicker. To keep judges happy (and keep the machine rolling), prosecutors must keep “the bodies” moving (as criminal defendants are most unfortunately referred to by some courthouse regulars). Prosecutors are, of course, also concerned for their own calendars. Clogged calendars mean that the prosecutor’s staff is overworked. Plea bargains tend to lighten the staff’s caseloads. Since plea bargains are much quicker and require less work than trials, they are also easier on the prosecutor’s budget. With today’s cutbacks on already slim resources, D.A.s feel they will have additional time and resources for more important cases if they conclude a large number of less serious cases with plea bargains. Another benefit to the prosecution is an assured conviction. No matter how strong the evidence, no case is ever a slam dunk. The prosecution may wage a long, expensive, and valiant battle, and still lose the case (as did prosecutors in the O.J. Simpson criminal trial). Plea bargains also give prosecutors flexibility. For instance, they can offer a deal to someone who, though guilty, has given testimony about a codefendant or helped resolve some other unsolved case.
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Case Example: Brad Hillary, an experienced criminal with a long rap sheet, planned to rob Danny’s Liquor store. He recruited Aliza Michaels to be his lookout. Aliza has no criminal history and is just 18. She merely stood guard; she was not armed and did not know Brad had a gun. As Brad threatened Danny and emptied the cash, his gun accidentally fired. Danny suffered serious but not fatal injuries; Brad and Aliza fled. Aliza later confessed to the police. Brad pleads guilty to armed robbery and gets sentenced 25 years to life in prison— ironically, the same sentence he likely would have gotten after trial, because of his record and the nature of the robbery. Aliza, though technically guilty of armed robbery, is offered a plea to larceny (theft), for which she may serve up to one year in prison, in exchange for her testimony against Brad. Question: Can the prosecutor do this? Answer: Yes. The prosecutor likely justified the deal by reasoning that Aliza helped to get the really bad guy and played a minor role in the robbery, and that this was her first offense. These last two factors would ordinarily tend to lighten Aliza’s sentence even without her cooperation. (See Chapter 22 for more on factors that tend to mitigate (lessen) or aggravate (increase) a defendant’s sentence.) Finally, prosecutors may use plea bargains to circumvent laws they don’t agree with. For instance, a prosecutor may disagree with laws prohibiting possession for personal use of small amounts of marijuana, so the prosecutor’s office may have an unwritten policy of giving all such offenders “offers they can’t refuse,” such as a $25 fine and ten hours of community service.
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7. How might a plea bargain benefit victims? Victims can also benefit from plea bargains, especially when a victim wants to avoid the stress and publicity of trial. A guilty or no contest plea is quicker and tends to receive less press than a trial.
Section III: The Plea Bargaining Process This section sheds light on how plea bargains come to be made.
8. What happens in a plea bargain? In a typical plea bargain, the defense lawyer and prosecutor confer (talk), and one or the other proposes a deal. The negotiations can be lengthy and conducted after both parties have had a chance to research and investigate the case. Or, they can be minutelong interchanges in the courthouse hallway. Case Example: Deputy Public Defender Durlofsky passes Assistant District Attorney Van Lowe in the hallway on their way into the courtroom. The following interchange takes place. P.D. “‘Mornin’, V.L. Got a good offer for me in the Reback case?” D.A. “That’s the possession case?” P.D. “Yeah. Honor student, nice guy, caught with some coke in his dorm room. He’s been in since last night. How ’bout time served and probation?” D.A. “Fine.” P.D. “Okay, what about the Cooper case?”
It is quite likely that a plea bargain in a misdemeanor drug possession case would take place this quickly and this informally, especially when the deal is between a prosecutor and court-appointed attorney who work with each other every day and are friendly. “Time served” means that the jail time will be just what the defendant has already spent in jail—in this case overnight. Question: Can the public defender agree to the deal without consulting the defendant (Reback)? Answer: No. (See Question 9.) But this is likely a deal Reback would want to take. If the case went to trial and Reback lost, his sentence might be more severe—more jail time, perhaps a fine, and some community service or mandatory enrollment in a drug treatment program. By accepting the deal, Reback not only gets out of jail but has the certainty of knowing the case is over.
9. Can my lawyer arrange a plea bargain without me? Yes, but the decision about whether or not to accept the plea bargain ultimately rests with the client. For practical purposes, however, defense counsel often urge defendants to accept deals, convincing them they’ll get a much harsher sentence if they go to trial (and they’re often right). And defendants tend to take the deals defense counsel recommend.
10. What role does the judge play in plea bargaining? It is up to the judge to impose sentence in a criminal case; no one else has the
Chapter 20: Plea Bargains
authority. On the other hand, it is up to the prosecutor to decide what charges to bring; the judge has no authority in that sphere except to dismiss a charge that the judge feels is wrong. This means that a prosecutor may agree to change the charges or even drop some charges, in exchange for the defendant’s plea, and the judge can’t stop it. However, if the plea bargain involves the type of sentence to be imposed by the judge, the prosecutor cannot guarantee the result without the judge’s agreement. Much of the time, plea bargaining negotiations take place privately between the defense lawyer and prosecutor, outside of court. The judge has no formal role until the plea is offered in open court. In some courts, however, the judge is actively involved in pushing both sides to negotiate, even facilitating negotiations in the judge’s chambers (office). On occasion, the judge will provide guidance to the defense and prosecutor by indicating what sort of a sentence would be acceptable.
11. Does the judge have to go along with the deal the lawyers work out? In many courts, prosecutors agree to recommend the bargained-for sentence without obtaining any explicit agreement beforehand from the judge. But the prosecutors know from past experience and the judge’s reputation whether the judge can be counted on, as many can, to rubberstamp the prosecutor’s recommendation. If the judge rebels or simply doesn’t follow the track record, and imposes a harsher sentence than the one the defendant was led to expect, the defendant is usually allowed
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to withdraw the plea and reassert his or her right to go to trial. But if the prosecutor has made it clear that the judge might not accept the recommendation, and the defendant pleads guilty anyway, the defendant may be stuck with the judge’s sentence. In other words, sometimes bargaining for the prosecutor’s recommendation will produce a sure result; other times it simply means that the defendant can test what the judge is willing to do; and still other times it guarantees nothing at all and risks a harsh sentence.
Prosecutors Who Back Out of a Deal Sometimes, prosecutors agree to certain deals out of court and then change their minds in front of the judge. In most places the defendant caught in such a situation would have the right to simply withdraw a plea of guilty. To deter prosecutors from going back on a deal, defendants should have the agreed-to terms put in writing before going before the judge. Where the prosecutor agrees only to make a recommendation or to not oppose the defense lawyer’s request for a certain sentence, however, the court may refuse to allow the defendant to withdraw the plea. For example, see Federal Rule of Criminal Procedure 11(e)(2); Santabello v. N.Y., U.S. Sup. Ct. 1971.
12. Do victims have a role in the plea bargaining process? Many victims are dissatisfied when defendants are allowed to enter plea
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bargains, feeling that the harms they suffered were disregarded and the defendants got off too easily. As a result of the efforts of victims’ rights groups, laws in many states now allow victims to have a say in the plea bargaining process. Michigan, for example, requires prosecutors to consult with victims before entering into plea bargains. In other states, victims have a legal right to come to court and address a judge personally before the judge decides whether to accept a plea bargaining. Still a third possibility for victims in many states is to consult with the probation officers before the probation officers prepare the presentence reports that often influence the terms of plea bargains. (For more information on probation reports and their role in the sentencing process, see Chapter 22.) Increased victim participation in plea bargaining means that for many defendants, good deals may be increasingly hard to come by.
13. What factors enter into a judge’s decision to accept or reject a plea bargain? As a practical matter, many judges will go along with a plea bargain as long as the agreed-upon sentence is within the range of what he considers fair. Usually this means determining if, given the seriousness of the crime and the defendant’s criminal record, the sentence seems appropriate in light of other sentences the judge has handed down. There are some other variables that may come into play, however. Particular judges might (rightly or wrongly) take into their calculation whether they remember the defendant from a previous appearance in
their courtroom and how they and members of the community feel (especially if the judge is up for reelection) about the crimes in question. Sometimes such whimsy as whether the judge woke up in a good mood or had a rough morning can also have an impact on his decisions later that day.
14. Assuming the agreement reached in a plea bargain is in the ballpark, what additional role will the judge play? Even if the deal seems fair to the judge, he is supposed to ask questions to determine whether the defendant is making what is known as a “knowing and intelligent” plea. What this means, essentially, is that the defendant knows and understands: • the charges against him • the consequences of the plea (both the sentence as it stands and the possible sentences that could be given were the defendant to have had a trial), and • the rights he is waiving (giving up) by pleading guilty, including: 1) the right to counsel if unrepresented, 2) the right to a jury trial, 3) the right to exercise his privilege against self-incrimination, and 4) his right to confront his accusers. Defendants should also know that, if they are not U.S. citizens, they risk deportation when they are convicted of a crime. Defendants are competent to waive counsel and plead guilty so long as they are capable of understanding the proceedings (Godinez v. Moran, U.S. Sup. Ct. 1993).
Chapter 20: Plea Bargains
In some courts, defendants who are pleading guilty are asked to fill in or sign a form waiving their rights.
Pleas That Aren’t Knowing and Intelligent If a defendant entered into a plea without counsel and did not appear, from a later review of the record, to have made a knowing and intelligent plea, that defendant may have grounds to request that the conviction stemming from the plea be stricken (removed) from the defendant’s record, or at least not considered in any future proceedings. As discussed more fully in Chapter 19, it can be important to try to strike prior convictions, because offenders tend to be sentenced more severely with each repeat offense. However, the United States Supreme Court has decided that even if a defendant did not have counsel or waive counsel before pleading guilty, as long as the defendant was not incarcerated after the plea was entered, the conviction may later be used to make future sentences more severe (Nichols v. U.S., 1994).
Usually the judge asks the defendant a fairly long list of questions to determine whether the plea is knowing and intelligent. And the defendant, following his attorney’s advice, quietly answers “yes” to all the judge’s questions. If the judge is satisfied after hearing the defendant’s answers, she will typically accept the deal. In some cases, she may want to see a presentence report prepared by the probation department, to consult with the crime victim, or to hear arguments
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from both the defense and prosecution supporting their deal. (See Chapter 22 for more on presentence reports and sentencing hearings.) Example: Assuming that Deputy Public Defender Durlofsky and Assistant District Attorney Van Lowe have agreed on the plea bargain in the Reback case from the previous example, the following might take place in the courtroom: Clerk: “Court is now in session, the Honorable Judge Kevin Lu presiding.” Judge: “In the matter of the State vs. Reback, Mr. Reback, how do you plead?” Defendant Reback: “Guilty, your Honor.” Judge: “Counsel, have you reached a settlement?” D.A.: “Yes, your Honor. The people have agreed to time served and probation.” Judge: “Mr. Reback, do you know that by pleading guilty you lose the right to a jury trial?” Def.: “Yes, your Honor.” Judge: “Do you give up that right?” Def.: “Yes, your Honor.” Judge: “Do you understand what giving up that right means?” Def.: “Yes.” Judge: “Do you know that you are waiving the right to cross-examine your accusers?” Def.: “Yes.” Judge: “Do you know that you are waiving your privilege against self-incrimination?” Def.: “Yes.” Judge: “Did anyone force you into accepting this settlement?” Def.: “No.” Judge: “Are you pleading guilty because you in fact possessed cocaine as charged?”
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Def.: “Yes.” Judge: “Mr. Reback, you are hereby sentenced to 12 hours in jail, which you have already served, and to two years’ probation.”
15. I don’t want to plead guilty, but I’m told the judge will treat me worse if I go to trial and lose. Is this true? In most cases, defendants are made aware in one way or another that the judge will be harsher on them if they go to trial and lose than if they accept a deal. This threat to punish people more severely if they go to trial, often communicated to the defendant directly and indirectly by the judge, prosecutor, and even defense counsel, sometimes causes innocent people to plead guilty. Innocent people also may be offered a “good deal” because the prosecutor may have little evidence against them. On the other hand, people against whom there is a strong case may have nothing to lose by going to trial, as they will likely not be offered very good deals to begin with. Such punitive practices blatantly violate the Constitution, because they punish a person for exercising the constitutional right to a jury trial. They continue because appellate courts tend not to interfere in the day-to-day aspects of how cases are handled in criminal courts. Nevertheless, a statute is unconstitutional if it allows for harsher punishment of defendants who ask for jury trials than for defendants who plead guilty (U.S. v. Jackson, U.S. Sup. Ct. 1968).
Making Sure the Defendant Really Is Guilty In addition to ensuring that pleas are knowing and intelligent, judges are also supposed to determine if there is an adequate basis in fact for accepting the plea; that is, whether the defendant committed the charged crime. When a defendant formally pleads guilty or no contest but all the while says he is innocent, a judge does not have to accept the plea (North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 1970). In federal courts, defendants who want to plead guilty, or nolo contendere, must testify under oath to facts establishing their guilt.
16. What happens after a plea bargain is reached? Once the deal is worked out, the prosecution and defense will arrange a court hearing and inform the judge about the agreement. Assuming the judge accepts the deal or suggests changes that are satisfactory to both sides, the judge will hear the guilty or no contest plea in open court so that it becomes part of the record. Then, the defendant will be sentenced—either at the same time, which is typical in some less serious cases, or at a later sentencing hearing. (See Chapter 22 on sentencing.) In-custody defendants may be brought to court soon after the agreement is reached for a special hearing in which the judge takes the plea. Otherwise, the taking of the plea (and sometimes sentencing) will occur at the next scheduled hearing. Depending on when the deal is struck, the next scheduled appearance may be the arraignment, preliminary hearing, or trial.
Chapter 20: Plea Bargains
Section IV: The Strategy of Negotiating Plea Bargains Just as with other negotiations, such as those of a buyer and seller in a real estate transaction, there are strategies involved with plea bargaining.
17. When prosecutors file charges, do they already have a plea bargain in mind? Prosecutors often initially charge defendants with more serious or multiple offenses expecting to reduce or drop some as bargaining chips. Because a great many plea bargains occur when the prosecutor agrees to drop one or more of the charges facing a defendant in exchange for a guilty or no contest plea on one or more of the remaining charges, prosecutors tend to charge high in the beginning. Case Example: Officer Rhett Cutler stopped Charlotte O’Hara for an unsafe lane change. While writing the ticket, Officer Cutler spotted what looked like a small amount of marijuana on the back seat. O’Hara was arrested and charged with the original unsafe lane change offense, possession of marijuana, and DUI (driving under the influence, here of a drug). The charges were filed even though this was a first offense, O’Hara’s blood-alcohol level (tested just after arrest) was within the legal limit and there was no other evidence of the DUI (other than the marijuana itself and the unsafe lane change). Question: Why would the prosecutor charge such a serious offense, DUI, for what
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seems like a routine traffic violation and simple possession? Answer: It’s entirely likely that the prosecutors overcharged O’Hara in order to give themselves room to drop some charges so that O’Hara would feel that she was getting a good deal by pleading guilty. Other factors, such as strict time limits to get charges filed against a defendant, also can contribute to initial overcharging. (For more on charging, see Chapter 6.)
18. Will different defendants charged with the same crime in the same court end up with pretty much the same plea bargain? Not necessarily. The sentence may differ from case to case depending on a number of factors, such as: • whether the defendant has any prior convictions (“priors”) • how serious the offense was (whether it was a violent crime), and • how strong the prosecution’s case (evidence) is. A comprehensive study of plea bargains, conducted in the mid-1980s, found that defense lawyers also look for specific characteristics of the defendant that may be used to argue for leniency in any given case. (See “Plea Bargaining: Critical Issues and Common Practices,” U.S. Department of Justice, July 1985.) One defense lawyer described plea bargaining as follows: “Everyone in the system knows roughly what a given case is ‘worth.’ By balancing
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the seriousness of the crime and the defendant’s record (how much time the prosecution wants the defendant to do), against the strength of the evidence and the skill of the defense lawyer (how likely the prosecution is to get a conviction), a specific deal is arrived at” (How Can You Defend Those People: The Making of a Criminal Lawyer, James S. Kunen (McGraw-Hill)).
19. What is a “standard deal”? For many common offenses, prosecutors in a given courthouse will have worked out what is, in effect, a “price list” setting out the typical sentences for different offenses. For example, in one area, it may be the prosecutors’ practice to uniformly reduce all first-time DUI (driving under the influence) offenses where blood-alcohol tests reveal a marginal or borderline level to a lesser offense such as reckless driving. (See Chapter 24 for more on driving under the influence.)
20. How can I find out what the standard deal is for my case? Standard deals are typically not written down anywhere. Defense lawyers have to figure out what the “going price” (standard deal) is in a particular jurisdiction for the crime the defendant is charged with. Lawyers often find out by asking around among their colleagues. Also, some public defender offices keep internal records that they may share with private defense counsel. Because lawyers tend to be clannish, it can often be very difficult for a self-represented defendant to learn about a standard deal.
The best place to start, however, even for a layperson, may be a local public defender.
21. What other factors might influence the deal in my case? A number of other factors may influence particular plea bargains, including: • where the case is; • what court the case will be heard in and how congested the court calendar is; • which prosecutors are in charge and what their reputation is; and • which judge will preside over the case and how lenient or tough she is. Good defense lawyers should know this “lay of the land” information. Defense lawyers who are not personally familiar with these details tend to call and rely on colleagues who are more familiar with the local scoop. Such local factors can be critical. If the judge has a reputation for leniency, for instance, the defense lawyer may be able to get a better deal out of the prosecutor than if the judge has a get-tough reputation. Defendants also tend to find themselves in stronger bargaining positions when their cases are to be heard in busier courts such as in large, metropolitan areas where many judges’ (and prosecutors’) foremost concern is to get through their backlog.
22. How tricky is it to arrange a plea bargain? Do I have to have a lawyer to negotiate a good deal? Most of the time, “very tricky” and “yes.” To get a good deal, a defense lawyer may have
Chapter 20: Plea Bargains
to lobby the district attorney. And just as a child lobbying a parent for a later bedtime must curry favor, so too must defense lawyers; it’s critical to make sure at least that they don’t irritate the D.A. in charge. Some suggest, among various other strategies, approaching the D.A. very early on, before any affirmative steps are taken to further the case, and trying to appeal to the D.A.’s sense of compassion. Once prosecutors start working a case, they may become more entrenched in their position. It may then become more difficult to persuade them to drop or reduce certain charges. Further, when lobbying the D.A., wise defense attorneys often start at the bottom of the ladder in the prosecutor’s office. If a less experienced D.A. says no, a defense lawyer can always talk to a supervisor. But once the supervising lawyer says no, the defense may be out of luck. These tactics suggest how cautiously defense lawyers proceed with plea negotiations. And, if defense lawyers have to be careful about how they negotiate a deal, self-represented defendants must be even more careful. First, there are traps for the unwary pro per. For instance, though technically there are rules of evidence that prevent the use of information discussed in the course of a plea bargain from being used in trial (see Federal Rule of Criminal Procedure 11(e)(6)), the prosecution may find ways around this. The prosecution may, for instance, look for independent evidence that they find from leads given away by the defendant during these negotiations. Second, defense lawyers may be able to negotiate more effectively because they may
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have an emotional distance from the case that the defendant lacks. Third, it is quite likely that the prosecutor will have a bias against defendants representing themselves—or at least a preference for working with fellow lawyers—and will not offer the defendant the same deal he would give a defense lawyer. In one study, prosecutors flatly admitted personal prejudice against unrepresented defendants. (See “Plea Bargaining: Critical Issues and Common Practices,” U.S. Department of Justice, July 1985 at 43.) In misdemeanor cases in Texas, the study reported, unrepresented defendants discuss their cases directly with the prosecutors, “who generally advise them to plead guilty to avoid being ‘creamed’ if they go to trial and in order to get probation or diversion right away.” One prosecutor further admitted that in a weak case, “If there is a defense attorney, I’ll dismiss it … If there is no attorney, I’ll try to get the defendant to plead guilty.”
23. How do I know when to take the deal? One of the reasons why plea bargaining is so common is that both sides often have something to gain when cases are disposed of by guilty pleas. There is no way to know for sure, however, when the best time to take the deal is—when to hold off, when to stall, and when to just accept the sentence and move on. Plea negotiations are somewhat of a poker game. General wisdom suggests that it is often beneficial for defendants to delay, to hold off accepting the first offers. Underlying this
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theory is the idea that the more time that passes after the alleged offense, the weaker the state’s case may become. Witnesses disappear and forget, physical evidence may be lost. And all that time, the defense has a chance to build a better case. So, for some, the longer the defendant can hold out, the better the deal will be. Some prosecutors have a hard and fast policy, however, of escalating their demands if their first offer isn’t accepted. Many times, prosecutors who play such hardball have reputations that precede them, and defense lawyers know to accept their first offers if it’s reasonably clear that they would lose the case if it went to trial. Also, even if delays are beneficial to the defense, waiting is usually easier for those defendants who are out on bail than it is for in-custody defendants. Because of these variables, defendants should consult with their lawyers or a legal coach about strategies of waiting versus taking the deal, or going to trial. In some instances, such as where a prosecutor’s deal is no better than the likely sentence and where the defendant has a strong defense, the defendant may want to go to trial.
24. Don’t defense lawyers just push people to take deals because it’s easier for the lawyers? Many defendants have the perception that their lawyers just want to get them to plead to make life easier for the lawyers. And that perception seems to be stronger where court-appointed lawyers are involved. Often, before the first meeting with the client, the
defense lawyer will have seen the police report, spoken with the D.A. and possibly even agreed upon a tentative plea bargain. In one study from years back, defendants reported most often hearing, as the first words their lawyers spoke, “I can get you … if you plead guilty.” (See American Criminal Justice: The Defendant’s Perspective, by Jonathan D. Casper (Prentice Hall).) Many defendants today echo this sentiment, and some feel that their lawyers don’t even ask for the defendant’s version of the crime. These perceptions are based on some sound evidence. It is clearly true that it is less work for a lawyer to plead a client guilty than to go through a complete trial. Therefore, defendants must make sure their lawyer is working for their best interests, fairly explaining the pros and cons of any deals offered and not rushing or pressuring the defendant into accepting a deal. The final decision on whether or not to plead rests with the clients; defendants have a right to a trial if they want one. Case Example: Tonya Herding was caught on camera Thursday afternoon stealing clothes, jewelry, and perfume from Mays Department store. She was arrested at the store, taken to jail, and booked. Bail was set at $1,500, but Herding had no money to post bail. She told the police she would need a court-appointed lawyer. She spent the night in jail and was arraigned the next day. In court, just before her case was called, Herding met Nancy Herrigan, the P.D. assigned to the case. Herrigan told Herding she got a good deal and thought Herding should accept it to get out of jail.
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Question: Should Herding take the deal? Answer: It’s hard to say. If Herding has
25. Can I do anything if I feel that I made a bad deal?
people she can contact to lend her the money, she could probably get a bail bond for $150, and for another $150 or so she may be able to get a second opinion from a private defense lawyer. At a minimum, Herding should ask Herrigan to explain what the deal is and why it’s a good one. Is it, for example, the standard deal for such offenses? She should also possibly ask what Herrigan thinks of requesting a continuance and lobbying the D.A. further before accepting the present offer.
Plea bargains are usually binding. Defen dants cannot get out of deals just because they changed their minds. In certain (albeit rare) circumstances, however, where it would be unfair to allow a deal to stand, defendants may be allowed to withdraw guilty pleas. Examples of such circumstances may include where a defendant: • Does not have the “effective assistance of counsel” in making the deal. (See Chapter 17 for more on effective assistance of counsel.) For instance, the defendant was forced to plead before a public defender could be appointed; • Is not informed of the underlying charges before agreeing to the deal does not voluntarily agree to the deal; or • Is given a sentence that differs from the agreed-upon deal. ■
However, the perceptions can also be incorrect. Some studies show that public defenders do engage in more plea bargaining than private defense lawyers, but the deals they work out tend to be equivalent to or better for defendants on the whole than the results private counsel obtain from going to trial. In other words, some private counsel may push to go to trial when it would be better for the defendant to take the deal.
Chapter 21
The Trial Process Section I: Summary of the Trial Process…………………………………………………………………428 Section II: Choosing a Judge or Jury Trial………………………………………………………………429 1. Am I entitled to a jury trial?…………………………………………………………………………429 2. Am I likely to be better off with a judge or a jury?…………………………………………..429 3. Who should make the decision about judge or jury?……………………………………….430 4. What happens if I want a judge trial and the prosecutor asks for a jury trial?……………………………………………………………………………………431 5. If I ask for a jury trial, do I have to pay the jurors?…………………………………………..431 Section III: Jury Voir Dire……………………………………………………………………………………431 6. What is jury voir dire?………………………………………………………………………………..431 7. What kinds of questions can be put to potential jurors?…………………………………..431 8. Who asks the questions on voir dire—the judge or the attorney?……………………….432 9. What can the defense do to keep potential jurors they don’t want off the jury?………………………………………………………………………………………432 10. How many potential jurors can I challenge?………………………………………………….433 11. Who decides which jurors to challenge?……………………………………………………….434 12. Can the defense use voir dire to preview its case?…………………………………………..434 Section IV: Motions in Limine………………………………………………………………………………435 13. Can I find out before trial starts whether a judge will admit damaging prosecution evidence that I think is inadmissible?…………………………….435 14. If the defense doesn’t make a Motion in Limine, can an objection to prosecution evidence be made during the trial?………………………………………….435 15. Can the judge delay ruling on a Motion in Limine until trial?……………………………436 Section V: Opening Statements…………………………………………………………………………….436 16. What is an opening statement?……………………………………………………………………436 17. Can evidence be introduced during an opening statement?……………………………..436 18. When does the defense make its opening statement?………………………………………436 19. Can the prosecution or defense argue the merits of their case during opening statement?………………………………………………………………………….437
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Section VI: Prosecution’s Case-in-Chief…………………………………………………………………437 20. Why does the prosecution get to put on its case first?……………………………………..437 21. How can I find out exactly what the prosecutor has to prove in order to convict me?………………………………………………………………………………….437 22. To obtain a verdict of not guilty, does the defense have to mount an attack on every element of the charged crime?…………………………………………..438 Section VII: Direct Examination of Witnesses…………………………………………………………438 23. What is the purpose of the oath that all witnesses take?…………………………………..439 24. If I testify in my case, I just want to be able to tell what happened in my own words. Can I do this?………………………………………………………………….439 25. Can the defense decide the order in which its witnesses testify?………………………..439 26. Can the prosecutor call the defendant as a witness?………………………………………..439 Section VIII: Cross-Examination……………………………………………………………………………441 27. What is cross-examination?………………………………………………………………………..441 28. What kind of information does a cross-examining prosecutor want to get out of a defense witness?……………………………………………………………441 29. Can the defense attorney help the defendant prepare for cross-examination?……………………………………………………………………………………441 30. After the prosecutor cross-examines a defense witness, can the defense attorney ask that witness additional questions?……………………………………441 Section IX: Defense Motion to Dismiss………………………………………………………………….442 31. After the prosecution rests, can the defense ask the judge to rule on whether the prosecution has provided enough evidence to justify a conviction?……………..442 32. Does the defense have anything to lose by making a Motion to Dismiss?……………442 Section X: Defendant’s Case-in-Chief…………………………………………………………………….442 33. Are the rules for the defense part of the case the same as for the prosecution’s?…………………………………………………………………………………442 34. Is it always a good idea to present a defense case?………………………………………….442 35. Can the prosecutor respond to the evidence presented by the defense?……………..443 36. At the end of the case, can the judge instruct the jury to find the defendant guilty?………………………………………………………………………………….443
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Section XI: Closing Argument………………………………………………………………………………444 37. During its closing argument, can the defense mention evidence it forgot to offer when it was putting on its case?………………………………………………………..444 38. If the defense realizes during closing argument that it forgot to offer some important evidence, is there anything it can do?……………………………..444 39. What should the defense talk about during its closing argument?………………………444 40. During closing argument, can the prosecutor play to jurors’ emotions, as in movies and TV?…………………………………………………………………………………445 41. Who argues first?………………………………………………………………………………………445 Section XII: Instructing the Jury……………………………………………………………………………446 42. How do jurors find out about the rules that they are to apply?………………………….446 43. Where do jury instructions come from?………………………………………………………..446 44. Does it really matter whether the defense can convince a judge to give its desired instruction?……………………………………………………………………..447 45. What do jury instructions typically cover?…………………………………………………….447 46. When instructing the jury, is it common for a judge to tell the jury what verdict the judge favors?…………………………………………………………………………….447 47. Can jurors look at the instructions while they deliberate?…………………………………448 48. What can the defense do to help jurors understand the instructions critical to the defense?……………………………………………………………………………….448 Section XIII: Jury Deliberations and Verdict…………………………………………………………..448 49. Can jurors discuss the case before the judge sends them off to deliberate?………….448 50. Besides premature case discussion, what other activities constitute juror misconduct during trial?……………………………………………………………………..449 51. Do jurors stay together until they reach a verdict?…………………………………………..449 52. How long do jurors have to reach a verdict?………………………………………………….450 53. What happens if the jurors cannot agree on a verdict?…………………………………….450 54. Can I do anything if a jury makes a mistake and convicts me?………………………….451
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his chapter explains criminal trial procedures and tactics. The discussion is general, since even judges in the same courthouse are apt to conduct trials differently. However, defendants who understand the general procedures and tactics associated with criminal trials are better able to help their attorneys make important trial decisions. Defendants can then also make an educated choice about whether to plead guilty before trial (perhaps as part of a plea bargain) or go to trial.
Section I: Summary of the Trial Process The many rituals associated with modern trials have developed over centuries. America’s common law heritage makes it possible for all states and the federal government to follow a largely uniform set of procedures. In summary form, those procedures are as follows: Judge or jury: The defense and prosecution decide whether they want the case tried by a judge or a jury. Select the jury: If a jury trial, the defense and prosecution select the jury through a question and answer process called voir dire. Address evidence issues: The defense and prosecution request the court in advance of trial to admit or exclude certain evidence (these requests are called motions in limine).
Opening statements: The prosecution and then the defense make opening statements to the judge or jury. Prosecution case-in-chief: The prosecution presents its main case through direct examination of prosecution witnesses by the prosecutor. Cross-examination: The defense crossexamines the prosecution witnesses. Redirect: The prosecution reexamines its witnesses (called redirect). Prosecution rests: The prosecution rests its case. Motion to dismiss: The defense has the option of making a motion to dismiss the charges. Motion to dismiss denied: Almost always, the judge denies the defense motion to dismiss. Defense case-in-chief: The defense presents its main case through direct examination of defense witnesses. Cross-examination: The prosecutor cross-examines the defense witnesses. Redirect: The defense reexamines the defense witnesses. Defense rests: The defense rests its case.
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Prosecution rebuttal: The prosecutor offers evidence to rebut the defense case (called rebuttal).
Posttrial motions denied: Almost always, the judge denies the defense posttrial motions.
Instructions settled: The prosecution and defense get together with the judge and figure out what instructions the judge should give the jury.
Sentencing if guilty verdict: Assuming a conviction, the judge either sentences the defendant on the spot, or sets sentencing for another day.
Prosecution closing argument: The prosecution makes its closing argument, summarizing the evidence as the prosecution sees it, and explaining why the jury should render a guilty verdict. Defense closing argument: The defense makes its closing argument, summarizing the evidence as the defense sees it, and explaining why the jury should render a not guilty verdict (or at least a guilty verdict on a lesser charge). Jury instructed: The judge instructs the jury about what law to apply to the case and how to carry out its duties. (Some judges “preinstruct” juries, reciting instructions before closing argument or even at the outset of trial.) Jury deliberations: The jury (if it is a jury trial) deliberates and tries to produce a verdict by (usually) unanimous agreement. Posttrial motions if guilty verdict: If the jury produces a guilty verdict, the defense often makes posttrial motions (requesting the judge to override the jury and either grant a new trial or order the defendant acquitted).
Section II: Choosing a Judge or Jury Trial This section is about what a defendant should consider when deciding whether to ask for a jury trial.
1. Am I entitled to a jury trial? The U.S. Constitution guarantees the right to trial by jury in all but “petty” cases (cases in which the defendant cannot be imprisoned for more than six months). Defendants charged with felonies and serious misdemeanors are entitled to jury trials. Defendants charged with minor misdemeanors punishable only by fines— called infractions (for example, speeding)— are not. (See Chapter 17 for more on the right to a jury trial.)
2. Am I likely to be better off with a judge or a jury? Defendants should normally opt for jury trials unless they have a good reason to waive (give up) a jury and leave the decision to a judge sitting without a jury. The reasons this is often the best choice are that it allows defendants to:
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• Play the percentages. Most jurisdictions require unanimous jury verdicts. For example, if a case is tried to a 12person jury, the prosecutor has to convince all 12 of the defendant’s guilt. A reasonable doubt in the mind of any single juror will prevent the defendant’s conviction—assuming the juror acts conscientiously. By contrast, a judge offers the defense but one mind in which to raise a reasonable doubt. • Have a hand in selecting jurors. Before the start of a jury trial, the defense can question and excuse (dismiss) some potential jurors during jury voir dire. In most states, however, unless it can prove actual bias on the part of the judge, the defense has to accept the judge assigned to the case. Despite these reasons, the defense is sometimes better off with a judge trial. For example, the background of a certain judge might make her sympathetic to the defense. Or, the success of the defense case may rest on a technical legal argument that the judge is more likely than a jury to adopt.
The “One Free Bite” Rule Some states allow the defense to dismiss a judge without having to prove that the judge is biased. The defense simply files an affidavit stating, in effect, “We want a different judge.” (See, for example, California Code of Civil Procedure § 170.6.) But the defense can use this affidavit procedure only once; the defense must accept the next judge assigned to the case—unless, of course, the defense can show actual bias.
3. Who should make the decision about judge or jury? The judge vs. jury trial decision is an important one, and the defendant should normally make it after consulting with her attorney. (This is specified in Standard 4-5.2, ABA Standards for Criminal Justice.) Usually, defense attorneys have greater access than defendants to information about judges, their backgrounds and their attitudes, and to the technical merits of the case. But a defendant may be as equally equipped as the attorney in gauging the mood of the community toward the police and the type of crime with which the defendant is charged, and in assessing the emotional appeal of the case.
The Jury Trial “Penalty” Some judges apply an unwritten and unfair jury trial penalty policy, giving harsher sentences to defendants who opted for a jury rather than a judge trial. For example, in off-the-record conversations, judges often tell defense attorneys something like, “If your client takes a bench (judge) trial and is convicted, he’s looking at a couple of years in jail. But if he insists on a jury trial, all bets are off.” The implication is that defendants who put the system to the added time and expense of a jury trial will pay for it in their sentences. Before deciding on a judge or jury, defendants should try to find out what the risks are.
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4. What happens if I want a judge trial and the prosecutor asks for a jury trial? If either side requests a jury—prosecutor or defense—trial will be to a jury.
5. If I ask for a jury trial, do I have to pay the jurors? No. Unlike in civil trials, in which the parties pay the jury fees, the government pays jury fees in criminal cases.
The Jury Waiver in the Leopold and Loeb Case The trial of Leopold and Loeb took place in Chicago in the 1930s. Thinking themselves too smart to be caught, two wealthy but mentally disturbed young men in search of a thrill killed a young boy. After their arrest, their parents hired the famous Clarence Darrow to defend them. Dramatically, Darrow waived a jury trial and pleaded his clients guilty. Under then-existing Illinois law, a judge and not a jury then had to sentence Leopold and Loeb. Darrow figured that he had a better chance of saving his clients’ lives in front of a judge. He was right; they were given life sentences, and Leopold was eventually paroled.
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Section III: Jury Voir Dire This section is about the process of selecting a jury in a criminal trial.
6. What is jury voir dire? Usually pronounced “vwar deer,” jury voir dire is the jury selection process. Potential jurors answer questions about their backgrounds and attitudes, and the prosecutor and defense can challenge potential jurors who demonstrate from their answers that they might not be fair and impartial. If a judge allows a challenge (and sometimes the judge has no choice), the challenged juror is excused and replaced from a larger pool of potential jurors.
7. What kinds of questions can be put to potential jurors? Some voir dire questions are routine; they are put to potential jurors in just about every criminal case. For example, potential jurors are routinely asked whether they know the attorneys, the defendant, or any witnesses, where they work, and whether they have ties to law enforcement. Other questions are case-specific. For example, if the defendant is charged with making a fraudulent insurance claim, potential jurors will undoubtedly be asked about their attitudes toward and experiences with insurance companies. In some types of cases (for example, rape cases), voir dire questions can be very invasive of the potential jurors’ privacy. When this occurs, judges often give the potential jurors an option to answer in the
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judge’s chambers, outside the presence of the other potential jurors.
8. Who asks the questions on voir dire—the judge or the attorney? In the past, attorneys did all voir dire questioning—except the handful of routine questions that the judge would ask. In many state courts, this is still true. However, it’s increasingly common for judges to do most of the questioning in an effort to speed up voir dire and prevent attorneys from using voir dire to build rapport with the jurors and plant ideas about their side of the case. Especially in the federal courts, the prosecution and defense may be limited to submitting written questions that they want the judge to ask.
9. What can the defense do to keep potential jurors they don’t want off the jury? The defense and prosecution can each challenge potential jurors. A challenge is a request for the judge to excuse (dismiss) the potential juror in question. The rules allow for two types of challenges: 1) challenges for cause, and 2) peremptory challenges. A challenge for cause asks the judge to excuse a potential juror on the ground that the juror’s answers demonstrate actual bias. Both sides are entitled to jurors who are fair and impartial. Jurors who are predisposed in favor of one side or the other cannot legally serve on a jury. For example, a judge will undoubtedly grant a defendant’s challenge for cause if a potential juror says something
like, “I think police officers do a marvelous job under almost impossible conditions. I’d find it very difficult to disbelieve any testimony a police officer gives.” Such an answer shows that the juror is predisposed to believe a police officer over the defendant, and is not, therefore, fair and impartial. Defendants often seek to exercise challenges for cause privately—perhaps in the judge’s chambers. That way, if the judge denies the challenge, the defendant is not faced with an angry juror. Peremptory challenges allow either side to excuse potential jurors even if their answers do not demonstrate actual bias. If the defense or prosecution has a hunch or an intuition that a potential juror favors the adversary, that side can use a peremptory challenge to excuse that juror. Express bias aside, a defense attorney may think that a juror’s background will incline that juror against the defense and will use a peremptory challenge to bump that juror. For instance, if defense counsel believes that older jurors are most likely to accept the defendant’s account of events, the attorney will use peremptory challenges to bump younger jurors, hoping that their replacements will be older. The judge must grant a peremptory challenge, regardless of whether the judge believes the challenged juror is biased. However, each side is given only a limited number of peremptory challenges. (See Question 10 for limits on peremptory challenges.)
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Judges Do Not Often Grant Challenges for Cause
Constitutional Limits on Peremptory Challenges
Even though a potential juror’s background suggests a probable partiality toward one side or the other, most judges will allow the juror to sit as long as the juror insists that she can give both sides a fair trial. For instance, assume that an alleged victim and a potential juror are both plumbers. The defendant may believe that the juror will subconsciously favor the prosecution. Nevertheless, if the potential juror swears to be open-minded and fair, the judge would probably deny the defendant’s challenge for cause. The defense might then use one of its peremptory challenges to strike this juror.
Until the mid-1980s, attorneys could exercise peremptory challenges for whatever reasons they chose. Since then, courts have ruled that attorneys cannot excuse potential jurors because of the jurors’ race or gender. It is likely that courts will continue to limit the scope of peremptory challenges.
Case Example: Marcus Nieman is charged with stealing merchandise from Southstrom’s Department Store. One potential juror, Victoria Macy, is employed as a clerk in a different department store. In response to Nieman’s questions, Macy states that shoplifters hurt everyone because they force shops to raise prices, and that she supports cameras in dressing rooms and plainclothes floor detectives as good methods of deterring theft. Macy insists that she will be fair to both sides and is not predisposed to believe the department store’s security guard. Nieman challenges Macy for cause, asking the judge to excuse her on grounds of bias. Question: Will the judge grant the challenge and dismiss Macy? Answer: Probably not. Macy’s feelings are likely to be shared by the public at large. Since Macy insists that she is open-minded and will base her verdict on the evidence, she will remain as a juror unless Neiman uses a peremptory challenge to bump her.
Alternate Jurors In many cases, judges try to seat regular and alternate jurors. The alternates sit in throughout a trial, but will not step in and decide the case unless one of the regular jurors becomes ill or for some other reason has to be excused from the jury. Without an alternate, the judge might have to declare a mistrial and start a trial all over again.
10. How many potential jurors can I challenge? Each side has an unlimited number of challenges for cause. However, the number of peremptory challenges is very limited. For example, Federal Rule of Criminal Procedure 24 grants each side only three peremptory challenges in misdemeanor cases. Most states have similar limits. In cases involving murder and other very serious charges, each side may have as many as 20–25 peremptory challenges. Regardless of the number, the defense has to carefully save its peremptory challenges for potential jurors whom they cannot successfully challenge for cause, but who are most likely to harbor biases in favor
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of the prosecution or otherwise be likely to favor the prosecution or reject the defense story. Case Example: In the Marcus Nieman example in the previous section, assume that the judge denies Nieman’s challenge to Victoria Macy for cause. Question: Should Nieman use a peremptory challenge to kick Macy off the jury? Answer: This is a difficult judgment for Nieman (and his lawyer) to make. Since Nieman has only a few peremptory challenges in this misdemeanor case, he has to think about whether other potential jurors (including those who might replace Macy) are even more unacceptable than Macy. Nieman should at least try to challenge Macy for cause out of the jury’s hearing. If Macy knows that Nieman unsuccessfully challenged her fitness to serve on the jury, Nieman may have no choice other than to use one of his precious peremptory challenges after the judge denies the challenge for cause.
11. Who decides which jurors to challenge? Many defense attorneys think that deciding which jurors to challenge is a matter of professional craft that the defendant should leave to the attorney. Standard 4-5.2 of the ABA Standards for Criminal Justice supports the lawyers’ attitude, though it advises attorneys to consult with clients before challenging potential jurors “where feasible and appropriate.” Defendants are often at least as sensitive to potential jurors who give
off “bad defense vibes” as are attorneys, and ordinarily defendants should ask their attorneys to consult them during jury selection.
Jury Consultants Defendants who can pay for it often hire jury consultants to assist in the selection of jurors. Typically, jury consultants investigate people’s attitudes in the locality where a trial will take place and develop profiles of jurors who are likely to favor either the defense or the prosecution. For example, a jury consultant may report that “collegeeducated females under the age of 35 are likely to favor the defense.” The defense can take such information into account when deciding which jurors to challenge.
12. Can the defense use voir dire to preview its case? Attorneys have often tried to use voir dire to begin persuading jurors to vote their way. The ensuing delays in starting trials were a major reason that judges in many areas have taken over voir dire questioning. Nevertheless, the defense can use even a limited questioning opportunity to “educate” jurors about the fundamental rules favoring defendants. Consider these questions that the defense might ask: • “Does each of you understand that the mere fact that Mr. Binder has been arrested and charged with a crime is not evidence of guilt?” • “Does anyone disagree with the principle that as she sits here now and throughout the entire trial, Ms.
Chapter 21: The Trial Process
Ouspenskaya is presumed innocent unless and until the prosecution convinces you beyond a reasonable doubt of her guilt?” The defendant would not really expect a potential juror to disagree with such basic principles. The questions emphasize to the jurors that the burden of proof favors defendants and that all defendants are presumed innocent until proven guilty.
Section IV: Motions in Limine This section is about getting the judge to rule on the admissibility of evidence before a party tries to introduce it in front of the jury.
13. Can I find out before trial starts whether a judge will admit damaging prosecution evidence that I think is inadmissible? Sometimes, by making a Motion in Limine. A defendant can file a written Motion in Limine, or make the motion orally. The purpose of the motion is to ask a judge for a pretrial order that evidence a prosecutor intends to offer at trial is inadmissible. For example, a defendant might ask for a ruling that “the prosecution cannot refer to the fact that the defendant has previously been convicted of a crime.” If the judge grants the Motion in Limine, neither the prosecutor nor prosecution witnesses can refer to the conviction during the trial.
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14. If the defense doesn’t make a Motion in Limine, can the defense make an objection to prosecution evidence during the trial? Yes. The defense can wait until a prosecutor offers evidence during trial, and then make an objection. But waiting until trial raises the danger that jurors will hear objectionable evidence before the defense has a chance to object. For example, testimony might unfold as follows: Prosecutor: “Had you ever seen the defendant before?” Witness: “Yes, the defendant was in a fight in a different bar the week before.” Defendant: “I object to any reference to an earlier fight, it’s irrelevant.” Judge: “I agree. The testimony is stricken, and I instruct the jurors to disregard it.”
Even though the judge upholds the defense objection and tells the jurors to disregard the improper evidence, some jurors may be influenced by it. As attorneys are wont to say, “It’s hard to unring a bell.” By making a Motion in Limine, the defense hopes to prevent jurors from hearing improper evidence in the first place. And in cases where the judge rules that the evidence in question is admissible, it may still benefit the defendant to file a Motion in Limine, because even when the judge rules against the defense in a Motion in Limine, at least the defense knows ahead of time that the damaging evidence will be allowed in at trial, and can plan its strategy accordingly.
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15. Can the judge delay ruling on a Motion in Limine until trial? Yes, and judges often do so. The judge may want to wait until the trial is underway before ruling on the admissibility of evidence. Nevertheless, a Motion in Limine is a useful way for defendants to “red flag” an objection to important but potentially highly prejudicial prosecution evidence. If and when the prosecutor attempts to introduce the particular evidence, the judge will have been given notice by the pretrial motion that this is critical evidence and may be more willing to take the time during the trial to carefully consider its admissibility.
Section V: Opening Statements This section is about the introductory statements to the jury that attorneys are permitted to make at the start of the case.
good opening statement whets a judge’s or jury’s appetite for the evidence to come.
17. Can evidence be introduced during an opening statement? No. What is said during opening statement is not evidence. The judge or jury cannot rely on facts referred to during the opening statements when deciding the case. For example, assume that during opening statement a prosecutor says, “You’ll hear the defendant’s next-door neighbor testify that the defendant drank three beers before leaving for work that morning.” If the nextdoor neighbor does not testify, or testifies but fails to mention three beers, the judge or jurors cannot use the prosecutor’s assertion as evidence that the defendant drank three beers. Rather, during closing argument the defense attorney would most likely attack the prosecution’s case by pointing out the prosecutor’s failure to deliver the evidence promised in the opening statement.
16. What is an opening statement? An opening statement is an opportunity for the defense and prosecution to describe what they will try to prove and what evidence they plan on offering. The prosecution and defense cases often emerge piecemeal from a number of witnesses, and are likely to be interrupted by court recesses, cross-examination, and the like. Thus, an opening statement allows each side to make it easier for the judge or jury to follow their case. Good opening statements are like roadmaps and movie previews. Like a roadmap, an opening statement tells a judge or jury where the defense or prosecution case is headed. And like a movie preview, a
18. When does the defense make its opening statement? In most jurisdictions, the defense can make an opening statement either immediately after the prosecutor’s (before any witnesses testify), or after the prosecution’s casein-chief is over (before defense witnesses testify). When given the choice, defendants usually choose the first option. Even though judges repeatedly admonish jurors not to evaluate a case until all the evidence is in, jurors weigh information as they hear it. This gives prosecutors a big advantage, because
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they get to present evidence first. Defense opening statements are one way to keep jurors’ minds open until defendants get to present their evidence. On the other hand, if the defense strategy is to defer certain key decisions— such as whether the defendant will testify— until after the prosecution case is finished, it may be better to defer the defense opening statement until the beginning of the defense case.
19. Can the prosecution or defense argue the merits of their case during opening statement? No. Since opening statement serves only as a preview, neither the defense nor the prosecution can argue its case. For example, a defendant cannot explain why the defense case is stronger than the prosecution’s. Some judges allow more argument during opening statement than other judges. Whatever leeway a judge allows a prosecutor should also be given to the defense. Case Example: Rex Kars is on trial for assaulting Herman Shepherd. Kars claims that he acted in self-defense. The prosecutor makes the following remarks during opening statement: “Frank Enstein will testify that he saw the defendant Kars strike the first blow. I submit that Enstein is totally credible. He had the best view of anyone at the scene and is completely unbiased, and his testimony is more credible than any evidence the defendant will offer.”
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Question: Is this a proper opening statement?
Answer: No. The prosecutor is making an argument. Opening statement is limited to a preview of evidence; it is not the time to argue which side’s evidence is more credible.
Section VI: Prosecution’s Case-in-Chief This section is about the prosecution’s case—what the prosecutor has to prove and how strong the proof has to be.
20. Why does the prosecution get to put on its case first? The prosecution goes first because it has the burden of convincing the judge or jury of the defendant’s guilt. Until the prosecution puts on enough evidence to satisfy this burden, there’s no reason for the defense to put on a case at all.
21. How can I find out exactly what the prosecutor has to prove in order to convict me? To figure out what the prosecutor has to prove, defendants have to very carefully read the criminal laws they are charged with violating. Often, the legal definition of a crime differs from its popular understanding. For example, in many jurisdictions drivers may be convicted of drunk driving simply because their blood alcohol level exceeded the legal limit. The prosecution does not
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have to prove how the alcohol affected their driving. Most crimes consist of two or more discrete subcomponents called elements. To prove a defendant guilty, a prosecutor has to support each element with proof. If the prosecutor fails to prove any one element beyond a reasonable doubt, the defendant should be found not guilty. For example, assume that Phil Thee is charged with grand theft. In many states, grand theft consists of the following elements: 1. the defendant 2. took property of another 3. worth more than $200 4. with the intent to permanently deprive the owner of the property that was taken. If the prosecution fails to offer enough evidence to satisfy each element during its case-in-chief, Phil must be acquitted. For instance, the prosecution may prove that Phil took someone’s property, but fail to prove the property’s value (Element 3). Or, the prosecution may prove the value of the taken property, but fail to prove that Phil intended to permanently deprive the owner of possession (Element 4). In either instance, the judge or jury would have to acquit Phil.
22. To obtain a verdict of not guilty, does the defense have to mount an attack on every element of the charged crime? No. The prosecution has the burden of proving beyond a reasonable doubt each and every element of the crime. This means that if the defense raises a reasonable doubt as to any one element, the defendant must be found not guilty. This is why the defense typically focuses its attack on one or two elements. For example, return to the case of Phil Thee, the defendant charged with grand theft. In response, Phil might attack just one of the elements that the prosecution has to prove. For example, Phil may concede that someone may have stolen property worth more than $200, but offer evidence that it wasn’t he who stole it. Or, Phil may concede that he took property worth more than $200, but claim that he was borrowing it pursuant to an agreement he had made with its owner. Whatever the basis of attack, defendants rarely contest every element of a charge. (For more information about focusing on the elements of a crime as a defense, see Chapter 13. For more information about finding and interpreting criminal statutes, see Chapter 12 and Chapter 27.)
Section VII: Direct Examination of Witnesses This section explains how a party or the party’s attorney must question that party’s own witnesses.
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23. What is the purpose of the oath that all witnesses take? The purpose of the oath is to impress on witnesses the seriousness of testifying in court. By swearing to tell the truth, witnesses also subject themselves to perjury charges should they lie about an important matter. (Witnesses who for religious or other reasons do not care to take an oath and swear to tell the truth may instead “affirm” that they will testify truthfully. Whether a witness “swears” or “affirms” to tell the truth, the effect is the same.)
Rarity of Perjury Prosecutions Witnesses bent on perjury have little to fear from prosecutors. Perjury isn’t a high priority crime for most prosecutors (except, perhaps, for Kenneth Starr), in part because it can be difficult to prove actual knowledge of falsity. An exception to this might be in cases widely reported in the media. When a witness appears to commit perjury in full view of millions, prosecutors may have no choice other than filing perjury charges. An example of this was Detective Mark Fuhrman, who pled guilty to perjury after lying during 1995’s internationally-televised murder trial of O.J. Simpson.
24. If I testify in my case, I just want to be able to tell what happened in my own words. Can I do this? Probably not. Testimony is supposed to emerge in question-and-answer form, not as an unbroken narrative. When witnesses respond to specific questions, adversaries know ahead of time what general
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information the witness is likely to provide, and have time to object if necessary. This means that defendants represented by attorneys usually have to tell their story in response to the attorney’s questions. Self-represented defendants, on the other hand, can’t sensibly pose questions to themselves. (Woody Allen demonstrated this to great comic effect in the famous movie Bananas.) Thus, judges usually permit selfrepresented defendants to testify in narrative form—that is, to tell their story in their own words. But many judges will interrupt the defendant’s narrative to ask questions.
25. Can the defense decide the order in which its witnesses testify? Yes. The defense can call witnesses in whatever order it chooses. However, the defendant often testifies last (if at all). Since the defendant cannot be excluded while other witnesses testify, a defendant who testifies last has the benefit of hearing what the other witnesses have said and listening to the prosecutor’s cross-examinations.
26. Can the prosecutor call the defendant as a witness? No. Under the Fifth Amendment to the U.S. Constitution, the defendant has an absolute right not to be called as a witness nor to testify unless he chooses to do so.
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Tips for Witnesses People whose testimony is needed in court are usually served with subpoenas, which are court orders. (See the sample subpoena at the end of this chapter.) Subpoenaed witnesses who fail to appear in court on the subpoena date can be taken into custody. Witnesses should understand the following rules: • Witnesses can and should discuss their testimony ahead of time with the attorney for the side that called them. Witnesses should know generally what questions will be put to them. • Witnesses can talk informally to the attorney for the other side if they want to, but they do not have to. • When testifying, witnesses should limit their answers to the questions asked. They should not volunteer additional information. Even if they are just trying to be helpful, what they say may be legally improper—and it may end up hurting rather than helping. • Witnesses who don’t understand a question should ask the questioner to rephrase it. • Witnesses often needn’t worry if they have a temporary loss of memory. After a witness
replies, “I don’t remember,” evidence rules allow attorneys to show the witness letters, reports, memos, or any other documents to remind the witness of forgotten information. However, after having his or her memory stimulated in this manner (called “refreshing recollection”), the witness must still be able to testify from memory. If the witness says, after viewing a document, “You know, I still can’t remember,” the witness will not be allowed to simply testify to what’s in the document. • Witnesses who are worried about wasting time in court until they testify should ask the attorney who subpoenaed them about an “on call” procedure. Witnesses who are on call agree to be available to come to court and testify on short notice, but in the meantime can go about their daily tasks. • Witnesses should keep their cool during cross-examination, and answer an adversary’s questions in the same manner that they answered questions asked by the attorney for the side favored by their testimony—that is, make sure they understand the question and limit their answers to what the questions ask.
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Section VIII: Cross-Examination This section is about whether a party or a party’s attorney may question witnesses called by the other party.
27. What is cross-examination? After a witness has been called by the defense or prosecution and given testimony under direct examination, the other side has an opportunity to question the witness about the testimony. Most trial attorneys agree that cross-examination is one of the most important tools for getting at the truth.
28. What kind of information does a cross-examining prosecutor want to get out of a defense witness? A prosecutor’s usual cross-examination goal is to undermine the credibility (believability) of testimony given by the defendant and other defense witnesses during direct examination. The defense can expect crossexamination to cover these possible areas: • The witness’s prior criminal record, if any, for the purpose of impeaching the witness’s credibility. Prior arrests are not generally admissible in evidence, but prior convictions that bear on the ability of the witness to be truthful are, especially if the convictions are for felonies; • Inconsistencies between the witness’s testimony and any statements the witness gave to police officers or others; • If the witness is the defendant, the defendant’s motive to commit the crime.
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For example, if the defendant is charged with the crime of theft, the prosecutor might ask questions suggesting that the defendant needed a large sum of cash; and • If the witness is the defendant, the defendant’s physical ability to do whatever the defendant claims to have done. For example, the prosecutor may try to cast doubt on the defendant’s claim to have gotten from one house to another in 15 minutes, or to have been able to observe the color of a car at night.
29. Can the defense attorney help the defendant prepare for crossexamination? Yes. Defense attorneys often play the part of a prosecutor and rehearse the prosecutor’s likely cross-examination with defendants (and defense witnesses) before trial. Such rehearsals are perfectly legal and proper.
30. After the prosecutor crossexamines a defense witness, can the defense attorney ask that witness additional questions? Yes. This is known as redirect examination, and it gives the defendant or witness a chance to respond to the prosecutor’s credibility attacks during cross-examination. For example, if the prosecutor asked the defendant about a prior inconsistent statement, the defendant will have a chance to explain the reason for the inconsistency. Also, redirect gives the defendant or other
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witness an opportunity to clarify testimony that was cleverly but misleadingly elicited by the prosecutor during cross. For other evidence rules affecting cross-examination, see Chapter 18, Section III.
is strong enough to justify a guilty verdict. However, to preserve their own reputations, defense attorneys usually don’t move to dismiss if the prosecution’s case is obviously strong enough to justify a guilty verdict.
Section IX: Defense Motion to Dismiss
Section X: Defendant’s Case-in-Chief
This section is about when the defense can ask the judge to dismiss the charges in the middle of the trial.
This section is about how the defense presents its own case.
31. After the prosecution rests, can the defense ask the judge to rule on whether the prosecution has provided enough evidence to justify a conviction? Yes. Even in a jury trial, the judge has the power to decide that the prosecution’s case by itself isn’t strong enough to support a guilty verdict. The defense can ask the judge to exercise this power by making a Motion to Dismiss at the conclusion of the prosecution’s case-in-chief. If this motion is granted, the defense will be saved the necessity of presenting its own case. And the dismissal will operate as the legal equivalent of an acquittal, which means the defendant cannot be retried.
32. Does the defense have anything to lose by making a Motion to Dismiss? Generally, no. The motion is made out of the jury’s presence. Therefore, even if the judge denies the motion, the jury is unaware that the judge thinks that the prosecution’s case
33. Are the rules for the defense part of the case the same as for the prosecution’s? Yes. Like prosecutors, the defense can call witnesses in whatever order they wish. Also, they must elicit testimony in questionanswer form, and cannot ask leading questions of defense witnesses.
34. Is it always a good idea to present a defense case? No. Sometimes the defendant’s best argument is that the prosecution evidence is not strong enough to prove guilt beyond a reasonable doubt. In such situations a defendant may choose to rest on the presumption of innocence and neither call witnesses nor present other evidence. This tactic may be riskier in a jury trial. Jurors are probably more prone than judges to thinking, “If the defendant had a good case, why didn’t we get to hear it?” Thus, defendants should carefully review with their lawyers any decision to rest on the presumption.
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Case Example: June Buggs is on trial for burglary. June’s defense is mistaken identity; she claims to have been at home at the time of the burglary. The defense effectively undermined the credibility of the only prosecution witness who claimed to be able to identify June as the burglar. Moreover, June was home alone at the time of the burglary, and has told her lawyer that her memory of the evening is impaired by the fact that she had been smoking marijuana. Question: Should June consider not presenting a defense case? Answer: Yes. The prosecution case is weak, and June may do her case more harm than good if she is unable to remember clearly what she was doing on the night of the burglary. Because her strongest argument may be the prosecution’s inability to prove her guilty beyond a reasonable doubt, June may reasonably choose to rest on the presumption.
35. Can the prosecutor respond to the evidence presented by the defense? Yes. After the defense “rests” (finishes presenting evidence), the prosecutor normally has a chance to offer “rebuttal” evidence. The prosecutor can offer rebuttal evidence only to attack evidence offered during the defense case. The prosecutor cannot use rebuttal as an excuse to rehash the prosecutor’s case-in-chief or put in new evidence unrelated to what the defense presents.
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Case Example: Cara Way is on trial for grand theft. During the defense case-in-chief, Cara’s attorney calls Chia as an alibi witness to testify that Chia and Cara were at the movies at the time of the theft. On rebuttal, the prosecutor wants to call two witnesses: 1) Cain, to testify that Cain recently overheard Chia tell Cara, “If you’re ever in trouble, you can count on me for an alibi”; and 2) Abel, to testify that Cara was the person he saw commit the burglary. (Abel already testified to this during the prosecution’s case-in-chief.) Question: Can either Cain or Abel testify on rebuttal? Answer: Cain can testify, because Cain’s testimony attacks evidence presented by Cara. Abel cannot testify, because it would be a rehash of testimony already given.
36. At the end of the case, can the judge instruct the jury to find the defendant guilty? No. As the representative of the community, the jury has the absolute power to find any defendant not guilty. The judge has no power to instruct the jury to return a guilty verdict. And if the jury comes back not guilty, the judge has no power to change its verdict or order a new trial.
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Section XI: Closing Argument This section is about the function of the closing argument and the limits placed on it by the courts.
37. During its closing argument, can the defense mention evidence it forgot to offer when it was putting on its case? No. Just as the opening statement is limited to evidence that will be offered (see Question 16), so is closing argument limited to evidence that has been offered. Referring to evidence that was not offered during testimony is improper argument outside the record.
38. If the defense realizes during closing argument that it forgot to offer some important evidence, is there anything it can do? A defense that rests its case having forgotten to offer important evidence can ask the judge for permission to reopen the case-inchief. Even during closing argument, the judge has the power to allow the defendant to present additional evidence. The more important the evidence, and the better excuse the defendant can offer for not presenting the evidence earlier, the likelier the judge is to allow a defendant to reopen the defense case.
Case Example: Jezza Bell is on trial for child endangerment for leaving her infant son unattended while she went shopping. Jezza’s defense was that she left the child in the care of a responsible babysitter who took off without Jezza’s knowledge. Jezza testified that a neighbor, Jebediah, saw the babysitter with Jezza’s son when Jezza left. However, Jezza could not locate Jebediah and thus could not call him as a witness. Just before Jezza finishes her closing argument, Jebediah rushes into court, apologizes for having been away and offers to testify as above. Question: What should Jezza do? Answer: Jezza should immediately ask the judge for permission to reopen her case-inchief. Jezza should explain what Jebediah will say, and her inability to produce him as a witness earlier. Jebediah’s testimony is important, and the judge should grant Jezza’s request.
39. What should the defense talk about during its closing argument? Closing argument is an opportunity for the defense to explain why the evidence requires a not guilty verdict. Most defense closing arguments include these features: • A reminder that the prosecution has the burden of proving its case beyond a reasonable doubt, and that the defendant is presumed innocent; • A summary of important evidence with a defense spin, especially if the trial has extended over a few days; • An attack on weaknesses in the prosecution’s case. Typically, the defense tries to stress that prosecution
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witnesses were biased or had motives to lie (for instance, a prosecution witness had charges dismissed in return for testifying against the defendant), or gave inconsistent testimony, or did not have a sufficient opportunity to perceive events, or offered implausible testimony; and • If the defendant presented evidence, support for the strength of that evidence. The typical reasons are the converse of arguments attacking a prosecutor’s case. For example, the defense may stress that defense witnesses were unbiased, and that they testified in a consistent manner.
Dramas Often Overemphasize the Importance of Closing Argument Movie and TV dramas often portray closing argument as the most critical phase of trial. Through words as stirring as Marc Antony’s over the fallen Caesar, movie attorneys always seem to sway jurors with last-minute dramatic appeals. (An excellent example is defense attorney Jake Brigance’s final argument in “A Time to Kill.”) However, judges and jurors rarely decide a case according to which attorney has the better oratorical skills. Studies indicate that most of the time, judges and jurors have made up their minds before closing argument.
40. During closing argument, can the prosecutor play to jurors’ emotions, as in movies and TV? Dramas often misleadingly portray what prosecutors can say during closing argument. Prosecutors are supposed to
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appeal to jurors’ reason, not their emotion and prejudice. Prosecution arguments that emphasize name-calling and community biases rather than evidence are improper. The defense should ask the judge to instruct jurors to ignore such comments. If the prosecutor’s comments are very prejudicial, the defense can ask the judge to declare a mistrial. Case Example: Abner Savage is charged with sexually molesting a young girl. During closing argument, the prosecutor calls Savage “a piece of vermin, a filthy beast who must be locked up like the wild animal that he is.” The prosecutor also tells the jurors to “send a message to all other would-be child molesters in our community that this kind of behavior won’t be tolerated.” Question: Is this proper argument? Answer: No. The first part of the argument improperly appeals to the jurors’ passions and emotions instead of to their reason. The second part is improper because the message that a verdict sends is irrelevant.
41. Who argues first? Most judges allow the prosecution to argue first, again on the theory that the prosecution carries the burden of proof. In fact, many judges also allow the prosecution a rebuttal argument following the defendant’s argument. Judges who allow a prosecutor only one argument often allow the prosecutor to choose whether to argue first or second.
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Section XII: Instructing the Jury This section discusses how the jury learns the legal principles it will need to render its verdict, and where these principles come from.
42. How do jurors find out about the rules that they are to apply? Judges instruct jurors as to the legal principles that apply to a defendant’s case. Typically, the judge’s instructions are the last words the jurors hear before they begin deliberating. However, some judges prefer to instruct jurors before closing arguments.
43. Where do jury instructions come from? Prosecutors and defense attorneys submit proposed instructions to judges, who decide which instructions to give. In many cases, the instructions are routine and drawn from books of approved jury instructions. For example, Federal Jury Practice and Instructions, by Kevin F. O’Malley, et. al., is widely used in federal court trials. The instructions themselves often are the products of committees formed for the purpose of updating a jurisdiction’s jury instructions. Other times, instructions originate in appellate court opinions. In their written opinions, appellate court justices often define crimes or other legal principles (such as the meaning of reasonable doubt). These definitions find their way into jury instruction books, and trial judges in turn read the pertinent principles to juries.
Prosecutors and defense attorneys are not limited to proposing the instructions found in jury instruction books. They may formulate their own instructions because of shortcomings of preapproved instructions. For example, an attorney may have to develop a new instruction when a case raises a legal issue for which no preapproved instruction exists. Or, an attorney may propose an alternative to a preapproved instruction. For example, in a particular appellate court jurisdiction, Cases A, B, and C (decided by different justices at different times) may each provide a somewhat different definition of reasonable doubt. A book of preapproved instructions may include only the definition in Case A. However, if a defense attorney considers the definitions in Case B or C to be more favorable to the defendant, the defense attorney may ask the judge to replace the book’s preapproved definition with the more favorable one. Case Example: Bea Leaver is on jury trial for violating a newly-enacted consumer protection law. Bea is the first person to be prosecuted under the new law. It is unclear from the text of the law itself whether the prosecution has to prove that Bea intended to violate the law, and the local book of preapproved instructions does not cover this new law. Question: How will the jury instructions for this case be created? Answer: With no preapproved instructions available, the defense and prosecution attorneys will prepare their own proposed instructions for the judge to give. In this case the defense would most likely propose
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an instruction telling the jurors that the prosecutor has to prove intent, while the prosecution will propose an instruction stating that intent isn’t necessary. The judge will instruct the jury with the instruction that he or she believes is a correct interpretation of the new law.
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correct instruction as a reason to reverse the conviction. It doesn’t matter that the jury might have convicted Bea even if the trial judge had given the correct instruction.
45. What do jury instructions typically cover? 44. Does it really matter whether the defense can convince a judge to give its desired instruction? It can be hard for jurors to pay attention while a judge recites a lengthy list of complex jury instructions. However, appellate court justices often take the instructions quite seriously if and when they are asked to review a conviction. Defense attorneys trying to convince appellate courts to overturn guilty verdicts often have their greatest success when they can point to errors in jury instructions, including the wrongful refusal of the judge to give a jury instruction that the defense had proposed. Case Example: Same case. Believing that the new consumer protection law does not require proof of Bea’s intent to violate the law, the judge refuses to give the defense’s proposed instruction to the jury. Bea is convicted, and appeals. The appellate court disagrees with the trial judge, and concludes that the law does require proof of intent to violate. Question: How might the trial judge’s decision not to give the defense’s proposed instruction affect the outcome of the appeal? Answer: The appellate court is likely to fasten on the trial judge’s failure to give the
Jury instructions encompass a variety of legal principles. The principles that judges typically review when instructing a jury include: • the elements of the crime(s) with which the defendant is charged (for instance, the elements of burglary); • the definition of reasonable doubt, the requirement of a unanimous verdict (in most jurisdictions), and other legal principles that apply to all criminal cases; • factors the jurors may consider when evaluating the credibility of witnesses; and • housekeeping rules, such as how to select a foreperson and how the jurors should conduct their deliberations. Even in a short trial, the judge may take up to an hour to read all the necessary instructions to the jurors.
46. When instructing the jury, is it common for a judge to tell the jury what verdict the judge favors? No. That is a frequent feature of English trials, but American judges rarely if ever express personal views as to what result they think juries ought to reach.
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47. Can jurors look at the instructions while they deliberate? Traditionally, judges read instructions aloud to jurors. If a juror wants an instruction repeated, the jurors have to file back into the courtroom and ask the judge to reread it. Many judges now try to simplify the jury’s task by handing out written copies of the instructions.
48. What can the defense do to help jurors understand the instructions critical to the defense? Studies have repeatedly shown that jurors have great difficulty understanding the meaning of jury instructions. Some states have tried to rewrite their instructions in plain English, but abstract legal terms like reasonable doubt cannot be precisely defined. When a defense rests on the jury’s understanding of a legal principle, the defense can: • Stress the meaning of the principle in everyday language during closing argument; and • Draft a version of the principle that the defendant thinks the jury can understand, submit the draft to the judge, and ask the judge to include it with the other jury instructions. Obviously, the draft must be legally accurate as well as understandable.
Section XIII: Jury Deliberations and Verdict This section is about how the jury conducts its deliberations and reaches a verdict.
49. Can jurors discuss the case before the judge sends them off to deliberate? No. Judges do not want jurors jumping to conclusions based on partial information. Thus, whenever a break occurs in a trial (for a recess, lunch, or the end of the day), judges admonish jurors “not to discuss the case among yourselves or with anyone else.” Jurors who fail to obey the admonition may be removed from the jury, and may even cause a mistrial. Case Example: Sneezy and Doc are jurors in a felony trial. On the second day of trial, they decide to eat lunch together. During the lunch, Sneezy remarks, “I didn’t think much of the witness who said she saw the defendant from across the street. She seemed pretty unsure of her testimony.” Doc responds, “Well, remember, this was the only time she’s ever been in a courtroom. Maybe she was just nervous.” They discuss the witness’s testimony for a minute or so, but come to no conclusions. Another juror sitting at a nearby table overhears the conversation. After lunch, the third juror reports Sneezy and Doc’s conversation to the judge. Question: What action should the judge take? Answer: The judge should talk to Sneezy and Doc in chambers to find out firsthand what they said about the case. The judge should then privately meet with the
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prosecution and defense to discuss what happened. Depending on the seriousness of the violation and the thoughts of the parties, the judge may (1) allow Sneezy and Doc to remain as jurors after giving them and the other jurors a sterner admonition against talking about the case; (2) remove Sneezy and Doc from the jury and replace them with alternates, or (if the attorneys agree) continue with a smaller jury; or (3) declare a mistrial.
Sequestering Jurors Judges may take the extraordinary step of sequestering jurors when trials are subjected to intense TV and newspaper coverage. A famous example of this occurred in 1995’s internationally-covered O.J. Simpson murder trial. Sequestered jurors can remain together throughout an entire trial or, more commonly, only during the time they are deliberating on a verdict. Sequestered jurors eat meals together and stay in the same hotel, and bailiffs closely monitor what they read and watch on TV. The purpose of sequestration is to protect jurors from the opinions of reporters and to prevent jurors from hearing about information that is never entered into evidence. However, sequestration can seriously interfere with other aspects of a trial. For example, it’s hard to imagine that jurors who are together constantly for weeks—or even nine months, as in the O.J. Simpson case—follow the admonition not to discuss the case before official deliberations begin. In addition, sequestration affects jury composition, since only people who can be separated from their daily lives for a long period of time can serve as jurors.
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50. Besides premature case discussion, what other activities constitute juror misconduct during trial? Jurors have committed a variety of no-nos over the years. These include: • falling asleep during testimony; • coming into court under the influence of drugs or alcohol—particularly after a lunch recess (in one notorious case, jurors were engaging in drug transactions during testimony!); • lying about their backgrounds during voir dire in order to get a spot on the jury; • conducting independent investigations, such as personally visiting the scene of the crime; • discussing the case with the prosecutor or defense attorney; and • listening to a friend carry on about the need to convict the defendant to protect society. Judges and attorneys sometimes find out about such misdeeds either by observing them personally in the courtroom, or from reports from other jurors or third parties. Again, depending on the severity of the conduct, the judge may admonish a wayward juror to shape up, replace the juror with an alternate, continue with a smaller jury, or declare a mistrial.
51. Do jurors stay together until they reach a verdict? No. In extraordinary cases with great publicity, jurors may be sequestered (required to remain together night and day). Otherwise, jurors deliberate during a normal
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workday and go home in the evening. However, jurors normally do eat lunch together while they deliberate.
52. How long do jurors have to reach a verdict? Jury deliberations are not subject to fixed time limits. A judge will order jurors to continue deliberating so long as they are making progress towards a verdict. Meanwhile, the judge will continue to hear other cases. When all of the jurors have agreed on a verdict (in those jurisdictions requiring unanimous verdicts), the foreperson tells the bailiff, the lawyers, and defendant return to the courtroom and the verdict is announced.
Case Example 1: Rosetta Stone is on trial for drunk driving. After the jury begins to deliberate, the foreperson announces that one of the 12 jurors has been taken ill and cannot continue. The judge orders the remaining 11 jurors to continue deliberating. Question: Is the judge’s action proper? Answer: No. Stone is entitled to a 12person jury, and a judge cannot force her to accept an 11-person jury. Thus, Stone could force the judge to declare a mistrial. In the alternative, Stone could agree to waive the 12-person requirement and continue with the remaining jurors. Stone might choose this option if she is in custody or if she thinks her chances of winning are good.
Case Example 2: Assume that Rosetta
53. What happens if the jurors cannot agree on a verdict? When a foreperson reports that jurors are unable to agree on a verdict (that is, unanimous for guilty or not guilty), a judge is likely to encourage jurors to keep trying. Judges try to achieve verdicts whenever possible, so as to avoid the time and expense of a retrial. But if encouragement fails and a jury is hopelessly deadlocked (called a hung jury), the judge has to dismiss the jurors and declare a mistrial. The prosecution can drop the case, or retry the defendant before another jury. Most of the time, however, cases are settled through plea bargains after mistrials caused by deadlocked juries.
Stone’s drunk driving case is being tried to Judge Schnell sitting without a jury. As soon as the attorneys finish their arguments, Judge Schnell pronounces Stone guilty. Question: Can the judge legally arrive at a verdict this quickly? Answer: Yes. Judges sometimes take cases under submission, which means they’ll delay making a decision. But as Judge Schnell did, judges often render immediate decisions.
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Good Citizenship Rules for Jurors The jury trial system relies on citizens’ willingness to serve as jurors and apply legal rules in a rational and responsible manner. A prosecutor does not secure justice when a defendant is wrongfully convicted by a jury that overlooks reasonable doubt, nor is justice promoted by jurors who acquit a guilty person because they don’t like the victim. Citizens who serve on juries should keep these principles in mind: • Potential jurors should honestly answer attorneys’ voir dire questions. Both sides are entitled to an impartial jury, and justice is not served by jurors who try to hide their backgrounds and predispositions. • Jurors act as minidemocracies when they deliberate. The foreperson should give all jurors a chance to speak, and jurors should consider each others’ views before making up their minds. • Jurors may take notes as they listen to testimony. • Jurors should not conduct independent research. For example, if there’s a dispute as to what is visible from a street corner, jurors should not drive to the corner to see for themselves. In one scene in the famous film “Twelve Angry Men,” juror
54. Can I do anything if a jury makes a mistake and convicts me? Yes. The defense can make a number of motions after a guilty verdict, for example, requesting that the judge overturn the jury’s
Henry Fonda disproves the prosecutor’s claim that a knife found in a defendant’s possession is unusual by easily purchasing a duplicate knife. Fonda’s act was improper, and in a real case probably would have resulted in a mistrial (if discovered). • Jurors should not conduct experiments while deliberating, because the results of those experiments are likely to be misleading. In one actual case, a crucial question was how long bite marks on a person’s skin would remain visible. To test this out for themselves, one juror bit another on the arm and waited for the marks to fade. The court ruled that the experiment was improper; differences in skin types and bite pressure made any results misleading. • Jurors may evaluate testimony in the light of their own common sense and experience. For instance, if a store security guard standing 75 feet away claims that the person who picked up an item of merchandise was the defendant, the jurors may consider their own abilities to see at that distance. (But remember, they can’t conduct an experiment in the jury room!)
(or the judge’s own) decision or grant a new trial. (These motions are discussed in Chapter 19.) The defendant can also appeal. (See Chapter 23.)
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Sample Subpoena Duces Tecum (Criminal or Juvenile)
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Chapter 22
Sentencing: How the Court Punishes Convicted Defendants Section I: Overview of Sentencing………………………………………………………………………..456 1. If I’m convicted after a jury trial, who decides what punishment I’ll receive?………456 2. How can I find out the prescribed punishment for the crime with which I’m charged?…………………………………………………………………………….456 3. Are there any limits on the severity of punishment for the commission of a crime?…..457 4. My attorney and the prosecutor made a deal in which I would plead guilty in exchange for a certain sentence. After I plead guilty, can the judge disregard the deal and give me a different sentence?…………………………………………………….457 5. Do judges have to give “mandatory sentences” so that everyone convicted of the same crime receives the same punishment?……………………………………………..458 6. In addition to a fine and/or incarceration, are there other future consequences to a conviction?………………………………………………………………………………………..458 7. How do three strikes laws work?………………………………………………………………….459 8. I have several previous convictions on my record that happened before three strikes was enacted into law in my state. Is there anything I can do to get rid of those prior convictions?………………………………………………………………………….459 9. What factors might incline a judge to give me a lighter sentence?……………………..460 10. What factors might incline a judge to give me a harsher sentence?……………………461 11. Apart from the evidence that may come out if my case goes to trial, how else would a judge find out about the mitigating and aggravating factors in my case?……..462 Section II: Sentencing Procedures………………………………………………………………………….463 12. If I’m convicted, will I be sentenced at once?…………………………………………………463 13. If I’m sentenced to do jail time, will I have to go right away or will I have some time to make arrangements?……………………………………………………………….463 14. What is likely to happen during my sentencing hearing?………………………………….463 15. What is a presentence report, and what role does it play in the sentencing?……….464 16. How can I improve my presentence report?…………………………………………………..464 17. What types of questions will the probation officer ask me when preparing the presentence report?………………………………………………………………………………465
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18. How can I make a favorable impression on a probation officer?……………………….465 19. Will I be able to read the report, and if so, when?…………………………………………..466 20. What can the defense do to assure the fairest possible presentence report?…………466 21. Will I get a chance to talk directly to the judge at the sentencing hearing?………….467 22. What role does the victim play in sentencing?……………………………………………….469 Section III: Sentence Options……………………………………………………………………………….469 23. What are some of the reasons why judges order convicted defendants locked up?……………………………………………………………………………………………….469 24. What is the difference between jail and prison?……………………………………………..470 25. If the judge orders me incarcerated as part of my sentence, will I know exactly how long I’ll be locked up?………………………………………………………………471 26. If I am convicted of two or more separate crimes, what is the effect of the sentences running “concurrently” or “consecutively”?…………………………………….471 27. Is it true that I may be released before the end of my jail term because the jail is overcrowded?…………………………………………………………………………………..472 28. My lawyer said I might get “time served.” What is time served?………………………..473 29. Time served sounds great—get out of jail right away. Why would anyone refuse?……473 30. What is a “suspended” sentence?…………………………………………………………………473 31. Can I be fined for committing a crime?…………………………………………………………474 32. What is a “day fine”?…………………………………………………………………………………474 33. Is “restitution” a fancy word for fine?……………………………………………………………474 34. I heard about a case in which the police confiscated a defendant’s car and boat. Is that a type of fine?………………………………………………………………………………….476 35. How does probation work?…………………………………………………………………………476 36. If I get probation, does that mean I won’t go to jail?………………………………………..476 37. What factors will the judge consider when deciding whether to give me probation?…………………………………………………………………………………………..477 38. What type of supervision does the probation officer provide?…………………………..477 39. If my probation conditions are too difficult to live with, is there a way I can get them changed?…………………………………………………………………………………….477 40. If I violate a condition of my probation, what’s likely to happen to me?……………..477 41. Do I get a hearing before my probation is revoked?………………………………………..478 42. What happens at a probation revocation hearing?………………………………………….478 43. Is it possible to plea bargain a probation revocation charge?…………………………….478 44. Can the judge make me work as part of my sentence?…………………………………….478 45. What kind of work does community service usually involve?…………………………..479
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46. Are there any other kinds of sentences I might get?…………………………………………479 47. I’ve heard that some states have drug courts to handle certain types of drug cases. What are they, and how do they work?………………………………………..481 48. What is parole, and how does it work?…………………………………………………………481 49. How is a pardon different from probation and parole?…………………………………….481 Section IV: The Death Penalty………………………………………………………………………………481 50. What is the current status of the death penalty in the United States?………………….481 51. What factors determine whether a death penalty law is valid under the U.S. Constitution?…………………………………………………………………………………………….482 52. What are “special circumstances”?………………………………………………………………483 53. Do prosecutors use special procedures when deciding whether to seek the death penalty?……………………………………………………………………………………..484 54. What are the issues in the death penalty debate?……………………………………………485 References ……………………………………………………………………………………………………….487
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entences are the punishments that result from guilty or no contest pleas, or from guilty verdicts following trials. A judge’s sentencing options used to be quite limited—a defendant could be incarcerated (put in jail or prison) or ordered to pay a fine, or both. But in recent years, courts and legislatures faced with rapidly growing jail populations have gotten as creative with sentences as stockbrokers have with investments. This chapter examines sentencing policies and procedures.
Section I: Overview of Sentencing This section explains in general terms how the courts determine the punishment a defendant is to receive upon conviction of a crime.
1. If I’m convicted after a jury trial, who decides what punishment I’ll receive? Judges almost always determine punishment, even following jury trials. In fact, a common jury instruction warns jurors not to consider the question of punishment when deciding a defendant’s guilt or innocence. In a very few situations, juries do take part in sentencing decisions. For example, in capital punishment cases in some states, a judge cannot hand down the death penalty in a jury trial unless the jury recommends death rather than life in prison. Case Example: Cunningham is convicted of child molestation following a jury
trial. After dismissing the jury and conducting a post-trial sentencing hearing, the judge decides to increase Cunningham’s sentence because the victim was particularly vulnerable and Cunningham carried out the molestation in a violent manner. Question: Is Cunningham’s sentence proper? Answer: No. The judge could have increased Cunningham’s sentence only if the jury had decided that the victim was particularly vulnerable and Cunningham carried out the molestation in a violent manner (Cunningham v. California, U.S. Sup. Ct. 2007).
2. How can I find out the prescribed punishment for the crime with which I’m charged? Typically, the law a defendant is charged with violating also identifies the punishment. For example, a statute identifying specific behavior as a misdemeanor might go on to state, “For a first-time offense, an offender may be fined not more than $1,000 or imprisoned for not more than six months, or both.” Another statute might describe particular behavior as a misdemeanor without specifying the punishment. In this situation, the punishment can be found in a separate statute that sets forth the punishment either for that particular misdemeanor or, in some states, for all misdemeanors. (See Chapter 27 for how to research criminal statutes.)
Chapter 22: Sentencing
3. Are there any limits on the severity of punishment for the commission of a crime? Yes. The Eighth Amendment to the U.S. Constitution provides that punishment may not be cruel and unusual. For example, a law that said that all convicted robbers would have their left hands cut off would no doubt violate the Eighth Amendment.
Bad Prison Conditions Rarely Qualify as Cruel and Unusual In a 1994 decision, the Supreme Court made it very tough for prisoners to challenge substandard prison conditions as “cruel and unusual.” Farmer v. Brennan requires that, to prevail in a lawsuit based on a “cruel and unusual” claim, a prisoner must prove that: 1) prison officials actually knew about the conditions being challenged, and 2) despite the substantial risk to inmates caused by the conditions, the officials did nothing about them. More on prisoners’ rights in Chapter 26.
4. My attorney and the prosecutor made a deal in which I would plead guilty in exchange for a certain sentence. After I plead guilty, can the judge disregard the deal and give me a different sentence? In many cases yes, though judges almost always rubber-stamp plea deals. To make sure that a deal to plead guilty can be canceled if the judge refuses to go along with it, the defendant should make it clear that she will plead guilty only if the
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sentencing judge agrees to impose the agreed-upon sentence. (More on plea bargaining in Chapter 20.) Case Example 1: Mickey Finn is charged with drunk driving. Mickey agrees to plead guilty after the prosecutor promises to recommend that the judge not impose any jail time. The prosecutor also says, “I can’t promise that Judge Seagram will follow my recommendation; the judge almost always gives first-timers like you 48 hours in jail.” After Mickey pleads guilty, Judge Seagram in fact sentences Mickey to 48 hours in jail. Question: Can Mickey withdraw the guilty plea? Answer: No. The deal was not contingent on the judge following the prosecutor’s sentence recommendation. Mickey will have to serve the sentence.
Case Example 2: Same case. Again, the prosecutor says, “I can’t make any promises that Judge Seagram will go along with the deal.” Mickey’s attorney then says, “We’ll plead guilty only if the judge agrees to no jail time. Let’s get an indicated sentence from Judge Seagram.” Judge Seagram informs the prosecutor and defense attorney that if Mickey pleads guilty, the sentence will be two days in jail. Question: Does Mickey have to serve two days in jail? Answer: No. Mickey never entered a guilty plea, and Mickey’s attorney had the right to cancel the deal if the judge refuses to go along with it. Of course, Mickey could end up with an even longer jail sentence if he takes the case to trial and is convicted.
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5. Do judges have to give “mandatory sentences” so that everyone convicted of the same crime receives the same punishment? Some criminal statutes do include mandatory sentences, which require judges to impose specific and identical sentences on all defendants who violate those laws. Mandatory sentencing laws usually reflect what the legislature sees as public sentiment that judges have been too lenient, and a desire to treat all people who break the same law alike. More commonly, criminal statutes do not carry mandatory sentences, and instead carry a range of possible imprisonment and fines within which the judge can fix the punishment. In these cases, judges can take a number of factors into account when deciding on an appropriate sentence. For instance, judges may consider the defendant’s past criminal record, age, and sophistication; the circumstances under which the crime was committed; and whether the defendant expresses genuine remorse. In short, mandatory sentence laws fit the punishment to the crime, whereas judges prefer to fit the punishment to the offender.
Understanding Statutory Sentencing Provisions Criminal statutes must be carefully studied to understand whether or not they specify mandatory sentences. For example, a statute may say that an offense is punishable “by not more than six months in the county jail.” This language is nonmandatory. A judge could sentence an offender to three months, three weeks, three days, or no time at all. On the other hand, a statute might say that an offense is punishable “by no less than 15 years in the state penitentiary.” A judge would then have to sentence an offender to at least 15 years. Many criminal laws provide for a range of punishment, such as “not less than one year nor more than three years,” and leave it to the judge to decide the precise sentence.
6. In addition to a fine and/or incarceration, are there other future consequences to a conviction? Often, yes. For example, in most states a convicted felon may not vote or hold public office, may lose a professional or business license, and may have great difficulty in obtaining future employment. Even someone convicted of a misdemeanor may be screened carefully and questioned extensively when applying for certain jobs. Perhaps one of the most serious consequences of having a criminal record is that a defendant will likely be punished much more severely if he is convicted of a future crime. Both prosecutors (conducting plea negotiations) and judges (handing down sentences following guilty verdicts) usually
Chapter 22: Sentencing
consider a defendant’s rap sheet (criminal record) to be a key factor influencing the severity of a sentence. Judges almost always give repeat offenders stiffer sentences than first-timers, sometimes because mandatory sentencing laws require them to do so and other times because the judge believes that the defendant didn’t learn his lesson the first time around.
Even Acquittals May Have Later Effects In 1997, the U.S. Supreme Court held that judges can take into account the defendant’s prior crimes during sentencing, even if the defendant has been tried and found not guilty of the prior crimes. The acquittal only means the defendant was not guilty beyond a reasonable doubt; the judge may still believe that a preponderance of the evidence shows the defendant committed the crime (U.S. v. Watts, 1997).
7. How do three strikes laws work? Three strikes laws impose lengthy sentences on repeat offenders. These laws allow judges to impose lengthy sentences on offenders who have at least two prior convictions for “serious” crimes. In the many states that have three strikes laws, a conviction for a third offense would allow (and sometimes require) a judge to impose a lengthy sentence. The most controversial aspect of three strikes laws is their use to punish offenders whose third conviction is for a nonviolent crime. In one case, an offender with two
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strikes already on his record was convicted of stealing about $150 worth of videotapes. Ordinarily, punishment for such a crime might be at most a few months in jail. However, under California’s three strikes law, the offender was deemed a “career criminal” and sentenced to 25 years to life. The U.S. Supreme Court upheld the validity of the sentence (Lockyer v. Andrade, U.S. Sup. Ct. 2003). Groups in many states are trying to change three strikes laws so that they can be used only on offenders whose third conviction is for a crime of violence.
8. I have several previous convictions on my record that happened before three strikes was enacted into law in my state. Is there anything I can do to get rid of those prior convictions? Perhaps. Given the crucial impact of prior convictions on sentences, it’s not surprising that pruning clients’ past convictions is often the most important impact a defense attorney can have on the severity of a sentence. For example, attorneys might attempt to: • seal or expunge juvenile convictions; • void prior convictions, perhaps because a guilty plea was taken improperly; or • demonstrate that a conviction that appears as a felony on a client’s record was only a misdemeanor. Readers who want more information on pruning past convictions might refer to various attorney’s criminal practice guides. (See Chapter 27.)
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Sealing Arrest and Conviction Records (“Expungement”) When records of an arrest or conviction are sealed, or expunged, defendants can, for some purposes, treat the arrests or convictions as though they had never happened. For example, assume that a defendant’s conviction for misdemeanor possession of an illegal drug is expunged. On applications for school, a job, or a professional license, the defendant may be able to answer that the defendant has no arrests or convictions (assuming no others exist). However, the rules about who is eligible for expungement and the effect of expungement vary from state to state, and people interested in expungement should seek the advice of an experienced attorney. These general guidelines apply to many expungement programs:
• Even though a conviction has been expunged, it can still be used to increase the severity of a sentence should a defendant again be convicted. For example, an expunged conviction may subject a defendant to a three strikes sentencing law.
• People have to apply (in writing) for expungement. Arrest and conviction records are not automatically expunged or sealed after a period of years.
• A defendant acquitted of a criminal charge may be able to have the records of the arrest and charge sealed immediately. (See, for example, Cal. Penal Code § 851.85; N.Y. Crim. Proc. Law § 160.50.)
9. What factors might incline a judge to give me a lighter sentence? The defense may bring to a judge’s attention an infinite number of factual circumstances that, if presented persuasively and if the judge has discretion and is favorably disposed, may well move the judge to impose a lighter sentence. The following are examples of such factors (called “mitigating” factors):
• Convictions cannot be expunged until about a year after they occur, and then only if the defendant is done serving the sentence and is facing no new charges. • Not all convictions are eligible for expungement. For example, in many states defendants cannot expunge felony convictions or convictions involving sex offenses. Juvenile and misdemeanor convictions are most often subject to expungement.
• The offender has little or no history of criminal conduct; • The offender was an accessory (helped the main offender) to the crime but was not the main actor; • The offender committed the crime when under great personal stress, for example, had lost a job, rent was due, and had just been in a car wreck; or • No one was hurt, and the crime was committed in a manner that was unlikely to have hurt anyone.
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10. What factors might incline a judge to give me a harsher sentence? Just as mitigating circumstances can sway a judge to lessen a sentence, “aggravating” circumstances can persuade a judge to throw the book at an offender. A previous record of the same type of offense is the most common aggravating factor. In other cases, aggravating circumstances grow out of the way a crime was committed, as when an offender is particularly cruel to a victim. However, except for prior convictions, in jury trials judges cannot base harsher sentences on aggravating factors unless the jury has decided that those factors are accurate (Cunningham v. California, U.S. Sup. Ct. 2007). Sometimes laws themselves specify aggravating factors. Here are some examples: • Use of a dangerous weapon when assaulting, intimidating, or interfering with a federal employee carrying out official duties increases the punishment from eight years to 20 years (18 U.S.C. § 111). • Committing mail fraud against a financial institution as opposed to an individual or some other type of institution can add $1,000,000 and/or ten years to the punishment (18 U.S.C. § 1341).
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Case Example: Tommy Rotten robbed several teachers from the Kind ‘R Garden Nursery School by pointing a loaded gun at the children and demanding the teachers hand over their purses. Bob Bracci, brandishing a silver nail file, robbed a convenience store clerk at 4:00 A.M.; no customers were present. Question: Assume Rotten and Bracci are in the same jurisdiction; both took the same amount of money and both were convicted of robbery. Will they get the same sentence? Answer: Probably not. The judge would likely take aggravating and mitigating factors into account, and these differ greatly in the two cases. Rotten used a clearly dangerous weapon, a loaded gun, and by doing so put many people, including children, at risk. Bracci used a makeshift weapon, a nail file, not an inherently dangerous weapon. He robbed the store in the middle of the night when not many customers, certainly not children, would likely be present. Because of these factors, Rotten would almost certainly get a much harsher sentence than Bracci.
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Throwing the Booker at Federal Sentences The U.S. Congress passed The Sentencing Reform Act of 1984 in response to concerns that federal judges’ sentences tended to be too lenient and too variable from one locale to another. The law created a Sentencing Commission that produced a Guidelines Manual that specifies sentences for almost all federal crimes. The Manual uses a “points system” that “awards” points according to type of offense, how it was committed, and an offender’s background. An offender who grades out at only one point can be sentenced to no more than six months in jail, while an offender who grades out at the maximum 43 points receives a life sentence. Congress intended the Guidelines Manual to be mandatory. However, many judges, defense attorneys, and even prosecutors complained that in practice they were often too harsh and too rigid. In the case of U.S. v. Booker (2005), the U.S. Supreme Court addressed many of these concerns by imposing two major limits on the Guidelines Manual’s reach: The sentences specified in the Guidelines Manual are advisory, not mandatory. That is, federal judges may consult the Manual but
11. Apart from the evidence that may come out if my case goes to trial, how else would a judge find out about the mitigating and aggravating factors in my case? Especially when jail time is a possibility, judges often ask that a probation officer prepare a presentence report. (See Question 15 for more on presentence reports.) Both the prosecution and defense may also present witnesses in open court, the defendant may personally address the judge, and,
they are not bound to impose the sentences it provides for. Federal courts are in disagreement about whether a federal law that provides for lighter punishment for some minor drug offenses is mandatory. For a decision ruling that this law is mandatory, see United States v. Cardenas-Juarez (9th Cir. 2006). A judge cannot “enhance” a sentence unless an offender has either admitted to the facts giving rise to the enhancement or a jury has concluded that those facts are true. For example, a judge may consider increasing a sentence because an offender injured someone in the course of committing the crime. In order to stiffen the sentence for this reason, the offender either has to admit that the injury occurred, or, in response to evidence at trial, the jury would have to conclude that the offender caused an injury. In 2006, a report issued by the U.S. Sentencing Commission concluded that despite the Booker decision, most judges hand down sentences that conform to the Guidelines Manual. Moreover, the average length of sentences has increased slightly since the decision.
increasingly, crime victims may also make statements. (See Questions 21 and 22 for more on statements by defendants and victims.)
FAMM is a national group that advocates on behalf of prisoners in the sentencing process. For information, consult FAMM’s website at www.famm.org.
Chapter 22: Sentencing
Section II: Sentencing Procedures This section is about when and how sentences are imposed, and the procedures judges must follow when doing so.
12. If I’m convicted, will I be sentenced at once? In minor misdemeanor cases, judges frequently hand down sentences immediately after the defendant pleads guilty or no contest, or is found guilty after a jury or judge trial. Where the possibility of significant incarceration exists, however, the judge may not impose sentence until some days or weeks later, in a separately-scheduled sentencing hearing. The sentencing hearing often follows an investigation by a probation officer, who prepares a presentence report for the judge to review. (See Question 15 for more on probation reports.)
13. If I’m sentenced to do jail time, will I have to go right away or will I have some time to make arrangements? Defendants who are out on bail when they are sentenced to jail are sometimes hauled off immediately. Other times, the judge may agree to “stay” (delay) the time the defendant must start serving the sentence for at least a few days—to allow the defendant to settle her personal affairs. Defense attorneys will usually be well acquainted with the stay policies of local judges.
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14. What is likely to happen during my sentencing hearing? The sentencing portion of a criminal case often takes only moments—especially where the judge is rubber-stamping the sentence agreed to in plea negotiations. For example, the judge may sentence a defendant to “a fine of $250, ten days in jail suspended, one year probation” while the echoes of the defendant’s guilty plea still reverberate in the courtroom. Even felony cases can wrap up quickly when sentences are negotiated as part of a plea bargain. For example, in a recent felony drug possession case involving California’s three strikes law, a defendant who pleaded guilty was sentenced to seven years in prison in a hearing that lasted six minutes. As mentioned, sentencing is not always so brief an affair, especially when the judge has legal authority to order a long period of imprisonment. Typically, a presentence report will have been prepared by the probation department, and the defense and prosecution will spend a fair amount of time arguing against or in favor of the probation officer’s recommendations and the factual findings on which the recommendations are based. (See Question 15 for more on the presentence report.) The judge also must allow the defendant an opportunity to make a personal statement (called the defendant’s “allocution”) before pronouncing sentence. (See Question 21.) And the defendant can call witnesses to testify to the defendant’s good character and rehabilitative efforts. Victims also may make personal presentencing statements to the judge. (See Question 22.)
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Self-represented defendants should get advice from an attorney to explore what mitigating evidence (evidence that may help reduce their sentence) they should consider offering during the sentencing hearing.
15. What is a presentence report, and what role does it play in the sentencing? Especially in felony and more serious misdemeanor cases, judges typically rely for their sentencing decisions on presentence reports prepared by probation officers. Probation officers usually prepare these reports during a several-week interval between the conviction and the date set for sentencing. To prepare the report, a probation officer (or a social worker or psychologist working for the probation department) first interviews the defendant and checks the defendant’s rap sheet (criminal record). The probation officer typically talks to the victim, the arresting officer, and the defendant’s family and friends. In addition to the information gleaned from these sources, most probation presentence reports also describe: • the circumstances of the offense; • the defendant’s personal history, including the defendant’s criminal record; and • a statement by the victim as to what the victim lost or how the victim suffered, sometimes called a victim impact statement.
Good defense lawyers make sure that the probation officer preparing the report hears about all the good things the defendant has done and is doing. For example, if the defendant has enrolled in a treatment or counseling program or has an employer willing to say nice things about the him, a defense attorney will transmit that information to the probation officer. It’s important that the defense make the presentence report appear as favorable to the defendant as possible, since the report is likely to have a large impact on the judge’s sentencing decision.
16. How can I improve my presentence report? Since judges tend not to have time to investigate the circumstances of individual cases, they usually rely heavily on and often rubber-stamp sentencing recommendations in presentence reports. For this reason, it is important for the defendant to make a positive impact on the probation officer preparing the report. The defendant should be as prepared as possible before meeting with the probation officer, because in some cases the defendant is not allowed to bring a lawyer into that interview. Preparation is also critical because probation officers may rely, when making their recommendations, on information that would not have been permissible in court at trial, such as inadmissible hearsay and illegally-obtained evidence. The defendant must be careful about what he or she says in the interview, because probation officers can use the defendant’s statements in their reports.
Chapter 22: Sentencing
A Judge’s View of Presentence Reports The contents of presentence reports and probation officers’ sentence recommendations are often crucial, as judges may have little time to exercise independent judgment. As one judge put it: “Most judges are so burdened with simply getting through the day and ‘disposing’ of the allotted quota of cases that they are usually too weary to undertake the painful examination of the justice, morality, or common sense of the sentences [that] they impose” (Criminals and Victims: A Trial Judge Reflects on Crime and Punishment, by Judge Lois G. Forer (W.W. Norton & Co.)).
17. What types of questions will the probation officer ask me when preparing the presentence report? Probation officers often question defendants very closely. An officer is likely to want to know a defendant’s: • version of the criminal act giving rise to the conviction • reason or motive for committing the crime • prior criminal record, including juvenile record • personal and family history • education • employment history • health • past and present alcohol and drug use • financial status, and • military record (if any).
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The defendant should come to the interview prepared to talk about such topics. Whenever possible, the defendant should bring documents that support her position (for example, a letter from an employer, or military discharge papers). The defendant also should be prepared to explain why she believes that probation or some other lenient sentence is appropriate under the circumstances.
18. How can I make a favorable impression on a probation officer? What the defendant says and how the defendant behaves in front of the probation officer can be critical. The defendant should meet with his lawyer ahead of time to discuss exactly what he should say to the probation officer. In general, it is important for the defendant to: • Come to the meeting on time, dressed appropriately. Probation officers have busy schedules and deal with lots of defendants who don’t care what happens. Simply showing up on time and being respectful may go a long way in positively influencing the probation officer. • Stress any mitigating factors when relating the facts surrounding the crime in question and when discussing any past criminal involvement. • Stress any rehabilitative activities the defendant has engaged in between the time the crime occurred and sentencing, such as attending a 12-step program, getting a job, enrolling in or going
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back to school, voluntarily performing community service, or obtaining medical or psychological services. • Discuss family ties and, if applicable, job stability. • Show remorse. One thing judges claim to look seriously at in sentencing is the risk of recidivism (repeated criminal behavior). Apparently, many judges believe that defendants who try to rationalize (explain away) the offense are more likely to commit repeat crimes than offenders who admit responsibility and show remorse. It could therefore be of great benefit to the defendant if the probation officer’s report notes that the defendant exhibits genuine remorse.
Showing Genuine Remorse Though many of the regular players in the criminal justice system (judge, prosecutors, defense lawyers, probation officers) are hardened to the stories of criminal defendants, they may still be moved and influenced by a defendant who genuinely expresses remorse and feels bad for the victim hurt by the crime. The opposite is also true. Consider these words written by a probation officer in a 1996 murder case: “To have so violently and completely abused another human being is unthinkable by anyone of conscience …. To show or express no sincere remorse, or acknowledge culpability for his actions, as the defendant has done, discloses the full depth of his malevolent character” (Source: L.A. Times, December 17, 1996, A28).
19. Will I be able to read the report, and if so, when? Defendants and their attorneys usually have access to the presentence report before the sentencing hearing. However, the sentence recommendations and information from any confidential sources may be excluded from the copy given to the defense. The defense should review the report thoroughly for factual mistakes. Procedural rules (such as Federal Rule of Criminal Procedure 32 (i)) typically give the defendant and defense counsel the right to comment on the presentence report at the sentencing hearing and to introduce evidence to rebut any factual mistakes.
20. What can the defense do to assure the fairest possible presentence report? Probation officers are at least as overworked as other players in the criminal justice system. And they are as susceptible to tough-on-crime public opinion as anyone else. Thus, “boilerplate clauses” (prewritten clauses used in case after case) are common. And the probation officer may prepare a report that justifies predetermined decisions rather than weighs the merits of an individual case. Defense lawyers, well aware of the limitations under which many probation officers work, often take a number of steps including the following to try to ensure that a judge is aware of information favorable to the defendant. Defense lawyers can:
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• Research possible alternative sentences—such as placing the defendant in a treatment center or under home detention rather than a prison, or requiring extensive community service and restitution—and prepare a concrete plan to implement the desired (or least offensive yet realistic) sentence; • Improve the defendant’s personal profile by enrolling the defendant in a treatment or rehabilitation program and school, finding an appropriate job, and performing volunteer community service; • Meet with the probation officer before the defendant does to present helpful information; • Prepare a written statement in mitigation of the crime that states why the defendant should receive a lighter rather than a harsher sentence; and • Seek a private presentence report. These are written by private individuals—often retired probation officers—engaged in the business of writing presentence reports for an often hefty fee.
21. Will I get a chance to talk directly to the judge at the sentencing hearing? When deciding what sentence to impose, judges typically consider oral statements made in open court as well as the probation officer’s written presentence report. The people who most commonly speak at a sentencing hearing are the prosecutors,
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the defense attorney, the victims, and the defendant. Rule 32 (i) (4)(A) of the Federal Rules of Criminal Procedure grants both the defendant and defense counsel the right to speak to the court before a sentence is imposed. As can be expected, the prosecutor’s comments will tend to highlight aggravating factors in the crime and past criminal behavior on the part of the defendant. And defense counsel typically responds with reasons justifying a lighter penalty. Also, if defense counsel has not already pointed out factual mistakes in the presentence report, this would be the last appropriate opportunity to do so.
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Counsel’s Arguments to Reduce Pizza Sentence Here are some snippets from arguments made by the prosecution and defense attorney during the January 1997 sentencing hearing in which a life sentence for stealing a pizza (under California’s three strikes law) was reduced to six years. • The prosecution. The prosecutor told the judge about the defendant’s past criminal record and showed the judge the lengthy rap sheet printout, “which extended from [the D.A.’s] outstretched arm to the floor.” The assistant D.A. argued, “This case is not about stealing a single slice of pizza. It is about recidivism [the problem of repeat offenders] and how society deals with it.” He further argued, “If the foremost purpose of [the justice system] is to protect society, then [the defendant] is a person we need protection from. He is a repeat offender. He has not learned. He has not repented.” And the D.A. went on to say that the defendant did not take the pizza because he was hungry, but, “He took the pizza out of meanness … it was literally taking candy from babies.” • The defense. The defense, on the other hand, argued essentially that the punishment was way too extreme for the crime. The public defender “described [the defendant] as a reformed criminal whose last crime was a dumb but hardly life-threatening offense.” The P.D. told the judge, “No one is going to suggest to the court that [the defendant’s] judgment was not faulty … but [the circumstances of the crime] suggest a lesser sentence.” “Judge Slashes Life Sentence in Pizza Theft Case,” L.A. Times at A1, January 29, 1997.
No one, not even defense counsel, may be able to speak in as persuasive a way as the person facing the sentence. Thus, defendants also have a long-held right to speak on their own behalf before the judge imposes the sentence. This is known as the defendant’s right of allocution. Defendants will likely want to work with their lawyers to prepare what, if anything, they will say to the judge.
What Not to Say in Allocution In 1996, Richard Allen Davis was sentenced to death for the kidnapping, molestation, and murder of a young girl named Polly Klaas. The case had shaken the nation for many reasons, not the least of which was that the victim had been taken from her home in a nice neighborhood during a slumber party with girlfriends. Before being sentenced, Davis spoke on his own behalf. Instead of using the allocution to beg for mercy, show remorse, or at least apologize, legal analysts saw his comments as an obvious attempt to lash out and inflict one last painful blow to the victim’s family. In front of a packed courtroom, Davis said that just before he killed Polly she said something like, “Just don’t do me like my daddy.” The suggestion that Polly’s father had sexually abused his daughter, wholly unfounded by all accounts, threw flames into the courtroom, prompting angry retorts from the father, tears from other family members, and the wrath, rather than any sympathy, of the judge.
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22. What role does the victim play in sentencing? It used to be that the victim played a minimal role in a criminal prosecution. The victim’s only job, if any, was to testify at trial about the circumstances of the offense. Now victims are participating more, from the beginning, where they are involved in prosecutors’ pretrial investigations, to later, when they give statements in court to the judge during sentencing hearings. The victim may tell the judge about the impact the crime has had on the victim’s life, pain suffered, and any other details to show why the defendant should receive a harsh sentence. The victim typically will also meet with the probation officer, who will include a victim impact statement in the presentence report. This statement may include the victim’s version of the offense and may detail any physical, psychological, or monetary damage the victim suffered as a result of the crime. Rules in some jurisdictions provide victims with a right to address judges at sentencing proceedings. In these jurisdictions, judges cannot forbid victims from making statements before sentence is pronounced (Kenna v. District Court, 9th Cir. 2006).
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Preparing Victim Impact Statements With sentences increasingly reflecting the impact of crimes on victims’ lives, a crime victim might seek assistance from a friend or counselor when writing an impact statement. Statements may touch on the physical, emotional, and/or financial effects of crimes. For example, how did a crime change one’s daily life or general lifestyle? How did it affect relationships with family members and friends? What medical and/or psychological treatment has a crime necessitated? Victims might also be eligible for restitution (from the perpetrator) or crime victim assistance funds (from the county or state), and if so might have to fill in a questionnaire. For further information, ask a court clerk or go online to the Office for Victims of Crime, at www.ovc.gov.
Section III: Sentence Options Subsection A: Incarceration This subsection is about when and why certain defendants are ordered to serve time in jail or prison.
23. What are some of the reasons why judges order convicted defendants locked up? Competing theories exist as to why some laws require, and why some judges order, convicted criminals to be incarcerated: • Retribution. Some people think that the primary goal of sentencing is retribution,
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that prison time serves to take out society’s vengeance against a defendant. • Rehabilitation. Others argue that the primary purpose of incarceration is rehabilitation—that the sentence will help the defendant mend his criminal ways and encourage him to adopt a lawful lifestyle. Rehabilitation is commendable in theory, but today’s jails and prisons tend not to rehabilitate. Many defendants say that they come out better criminals than they went in, that they learn the tricks of the trade from other prisoners. • Deterrence. Some believe that because prison is so bad, the threat of a prison sentence will deter (stop or prevent) people from committing crimes. Like rehabilitation, deterrence doesn’t seem to be effective, for several reasons. Often, crimes are committed on impulse or under the influence of a drug or alcohol, without thought of the possible consequences. Also, frequently, people who commit crimes have spent major parts of their lives in institutions and do not fear incarceration the way people who have been free all their lives might. And finally, a sizable number of criminal defendants actually seek punishment because of various psychological pathologies. • Punishment and public safety. Increasingly, people in the know admit that prison doesn’t rehabilitate criminals or deter crime. They just lock defendants up for punishment, and to get them off the streets for as long as possible. • Politics. Finally, and unfortunately, an influential group of leaders emphasize
incarceration as a way of getting votes. By building more prisons and locking more people up, politicians can cite statistics that make them look tough on crime— whether or not true crime is actually reduced or the underlying problems causing the crime are ever solved.
Height of Silliness? In May 2006, Nebraska Judge Kristine Cecava created controversy by sentencing convicted sex offender Richard Thompson to ten years probation rather than ten years in prison because she feared that he might not survive in prison because he was only 5' 1" tall. The decision angered victims’ rights advocates and puzzled Nebraska prison officials, who reported that many prisoners were shorter than Thompson and that they had never been harmed. As of the time of writing this edition, the prosecutor planned to appeal the sentence.
24. What is the difference between jail and prison? Jails (sometimes called community correctional centers) are short-term lockups normally run by counties and staffed by county sheriffs. Defendants housed in jails include those awaiting trial and unable to make bail, those serving sentences for misdemeanor offenses, and those felons who have to do jail time as a condition of probation. Because jails are devoted to short-term incarceration, they typically lack many of the facilities and programs that are sometimes available in prisons, such as libraries and exercise areas.
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Prisons (also called penitentiaries and, in slang, “the joint,” “the pen,” “the big house,” or “up the river”) are normally operated by the federal and state governments, and their purpose is long-term incarceration. Most prison inmates serve sentences well in excess of a year.
25. If the judge orders me incarcerated as part of my sentence, will I know exactly how long I’ll be locked up? Some state laws require the judges to impose what are called determinate sentences. A determinate sentence is a fixed-term sentence pronounced by a judge. For example, a defendant sentenced to “30 days in county jail” or “five years in state prison” has received a determinate sentence. Defendants who receive determinate sentences at least know the maximum period of incarceration as soon as they are sentenced, but they may get out earlier because of parole (see Section III), or because they have not been a problem (good time credits), or because the jail or prison is overcrowded and their bed is needed for a new inmate. Other state laws require judges to give indeterminate sentences. Indeterminate sentences are those in which a judge sets a minimum and/or maximum time of incarceration, but leaves the decision as to when to release an inmate to prison officials. For example, a defendant sentenced to “serve not less than two nor more than 20 years in the state penitentiary” has received an indeterminate sentence. As a general rule, indeterminate sentences are only imposed
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on people who are sentenced to state prison after being convicted of a felony.
26. If I am convicted of two or more separate crimes, what is the effect of the sentences running “concurrently” or “consecutively”? Judges often have discretion to decide whether to give defendants who are convicted of separate crimes concurrent or consecutive sentences. If a defendant is convicted of a number of crimes that carry lengthy prison terms, the difference between consecutive and concurrent sentences can be tremendous. The reason is that when sentences run concurrently, defendants serve all the sentences at the same time. When sentences run consecutively, defendants have to finish serving the sentence for one offense before starting to serve the sentence for any other offense. The same factors that judges tend to consider when deciding on the severity of a sentence (for example, a defendant’s past record) also affect their decisions on whether to give concurrent or consecutive sentences. Case Example 1: Haydn Goseek was convicted of 20 counts of forgery for forging and cashing 20 separate checks. Each count carries a maximum possible prison term of five years. Question: How might the judge’s decision as to whether Haydn’s sentences should run concurrently or consecutively affect how long Haydn stays in prison? Answer: If the judge gives Haydn a maximum sentence on each count and runs the sentences consecutively, Haydn’s total
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sentence would be 100 years in prison. If the judge runs the sentences concurrently, Haydn’s total sentence would be five years in prison because he would serve each sentence at the same time. (And whether he receives consecutive or concurrent sentences, Haydn might be released early on parole.) Question: If Haydn previously had a clean record and forged the checks when he had been temporarily laid off from work, how might this affect the judge’s sentencing decision? Answer: Even if the judge decides that a jail term is warranted, the judge might well sentence Haydn to less than the statutory maximum of five years on each count, and run the sentences concurrently.
Case Example 2: Same case. Haydn’s forgery conviction was in Michigan. At the time of the Michigan conviction, Haydn was already serving a sentence in Indiana for forgeries committed in Indiana. (Indiana turned Haydn over to Michigan temporarily to stand trial.) The Michigan judge is about to sentence Haydn on the Michigan forgeries. Question: How can Haydn’s attorney minimize the length of Haydn’s sentence? Answer: Haydn’s attorney can ask the Michigan court to allow Haydn to serve the Michigan sentence concurrently with the Indiana sentence. That is, every day that Haydn serves in Indiana counts as though it were served in Michigan.
One Sentence for Separate Crimes? Sometimes, a sentencing judge can legally give just a single sentence to a defendant who is convicted of separate crimes. The reason is that a defendant may commit what the law regards as a single unlawful act, yet may be convicted of violating several statutes. For example, assume that a defendant sets a house on fire in an attempt to kill the occupants. The defendant may be convicted both of arson and attempted murder, but could probably be given only a single sentence. Typically, the sentence would be for the more serious crime, which in this instance would probably be attempted murder. Warning: The issue of whether a defendant’s illegal conduct can legally count only as a single unlawful act for sentencing purposes can be quite complex. Judges often have to consider a variety of uncertain factors, such as a defendant’s purpose in committing a crime. A defendant facing conviction of multiple offenses should seek legal advice as to the possibility of receiving separate sentences for each offense.
27. Is it true that I may be released before the end of my jail term because the jail is overcrowded? It’s possible. Overcrowding in jails and prisons has led to early release for many prisoners. For example, one study reported that the average time served on a one-year misdemeanor sentence in Los Angeles had decreased from an average of 200 days to
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an average of 80 days in the mid-1990s. Nevertheless, many defendants can expect to serve lengthier sentences than ever, despite overcrowding, because of the current get-tough attitude prevalent in the public and the law enforcement community.
28. My lawyer said I might get “time served.” What is time served? Time that defendants spend in jail before they are convicted (called pretrial detention) may be credited toward the total time of the sentence. This is called time served. A defendant unable to make bail may spend time in jail before a plea bargain or a trial takes place—sometimes days, sometimes months, and in very rare instances years. It is not unusual in minor first-time offenses for a plea bargain to be struck whereby the defendant’s total punishment is the time served plus probation. (More on plea bargains in Chapter 20.)
29. Time served sounds great—get out of jail right away. Why would anyone refuse? While time served sounds terrific and most offenders jump at the chance to be let out of jail right away, this option is by no means a “get out of jail free” card. There are some serious consequences that a defendant should not take lightly: • The offender will still have a criminal record; time served doesn’t erase the conviction.
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• Time served is almost always given in conjunction with probation and sometimes a fine and/or community service. Probation, as discussed in more detail later in this section (Subsection C), may have onerous conditions attached to it. Defendants who violate even one of the probation conditions may be sent immediately to jail. Because of this, some defendants may wisely choose to avoid the fine or probation conditions and serve the entire jail time outright, especially if the charge is relatively minor and the local jail is routinely releasing defendants early.
30. What is a “suspended” sentence? A sentence is suspended when a judge imposes a jail sentence but allows a defendant not to serve all or part of it. For example, a judge may impose a sentence of a “$750 fine and ten days in county jail, five days suspended.” The catch is that a suspension is conditional on a defendant’s complying with the terms and conditions that a judge specifies. For example, a judge may condition suspension on a defendant’s compliance with the conditions of probation or completing a drug treatment program. If a defendant violates one of the conditions (for example, fails to complete a drug treatment program), a judge can order the defendant to serve the suspended portion of the sentence.
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Mistreatment in Prison Most defendants facing imprisonment for the first time are scared, and much of the time with good reason. Jails and prisons nationwide are overcrowded. Many inmates are subjected to brutal conditions both from guards and from fellow prisoners. One thing a defendant should do is to work closely with a lawyer, from arrest on, to develop an effective sentencing plan and present the best possible case for an alternative (nonprison) sentence to the probation officer and the judge. For more information about prisons and prisoners’ rights, see Chapter 26.
Subsection B: Fines This subsection is about when fines may be imposed as part of a sentence and what happens if the fines aren’t paid.
31. Can I be fined for committing a crime? Fines are a common punishment for a variety of crimes, especially less serious offenses committed by first-time offenders. Offenses that are typically punished by a fine include minor drug possession (of a small amount of marijuana, for example), fish and game violations, shoplifting, traffic violations, and even some first-time drunk driving cases. In more serious offenses or when the defendant has a criminal record, many judges combine a fine with other punishments, such as incarceration, community service, and probation. In many parts of the country, laws
specify the maximum amount an offender may be fined for a particular offense. The judge is then free to impose a fine up to but not exceeding that amount.
32. What is a “day fine”? Fines have been subject to a great deal of criticism. One frequent complaint is that they impact rich and poor offenders very differently: “The rich pay the fine, the poor do the time.” One recent trend to combat that critique has been the implementation of day fines. With day fines, employed defendants do not have to pay a fine all at once. Instead, they pay a percentage of their earnings on a weekly or monthly basis. The payment amounts vary depending on an offender’s salary.
33. Is “restitution” a fancy word for fine? No. Fines go to the state (or federal or local government prosecuting the crime). Restitution is money paid by the defendant to the victim or to a state restitution fund. In some cases, the “victim” is society, such as in welfare and Medicare fraud schemes in which defendants may be sentenced to pay the state back the money defrauded. More typically, in both state and federal jurisdictions, offenders may be required to return or replace stolen or damaged property, to compensate victims for physical injuries and medical and psychological treatment costs, or to pay funeral and other costs where a victim dies.
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Typically, the defendant will be ordered to pay restitution as just one part of the sentence, in addition to prison, community service, probation, and/or some other punishment. Sometimes, plea bargains are struck where criminal charges are dropped
More About Restitution In most states, restitution orders are limited to victims’ out-of-pocket economic losses, such as medical expenses and lost pay for missing work. With few exceptions—such as when a child has been sexually assaulted by the defendant—a judge cannot order a defendant to compensate a victim for noneconomic damages such as pain and suffering and emotional distress. Victims who want compensation for noneconomic losses have to sue the defendant in a separate civil action. Courts typically enforce their restitution orders in two ways: 1. If probation is granted, the defendant is required to pay the restitution as a condition of remaining on probation. If the supervising probation officer believes that the defendant is willfully avoiding paying the restitution, he can seek to have the probation revoked and the defendant incarcerated.
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altogether if the defendant admits guilt and completely compensates the victim for stolen property or a vandalized car. This type of arrangement may be called a “civil compromise.” (More on plea bargains in Chapter 20.)
2. The restitution order is considered to be the equivalent of a civil judgment and can be enforced by the victim—by attaching or garnishing a defendant’s assets or wages. However, under this method of enforcing the restitution order, the defendant can’t be put in jail for not paying up. Recognizing that many criminal defendants may never be in a position to pay full restitution, a number of states also have set up restitution funds to help compensate victims who cannot collect from the defendant. For example, following the 1999 shooting at a Granada Hills, California, Jewish day care center, the city attorney’s Victim of Crime Program initiated an outreach effort. The L.A. Times reported that victims who were shot may receive up to $46,000 from a state restitution fund to help pay their medical bills, and victims (and their families) who were present during the incident may be eligible for up to $10,000 for psychological counseling.
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34. I heard about a case in which the police confiscated a defendant’s car and boat. Is that a type of fine? Technically, no. The defendant’s property was probably taken as part of a civil forfeiture proceeding, a separate proceeding from the criminal case in which the government takes property used as part of criminal activities. In 1996, the U.S. Supreme Court held that civil forfeiture is not punishment and therefore forfeiture proceedings do not violate the prohibition against double jeopardy (U.S. v. Ursery, 1996).
Subsection C: Probation This subsection is about probation: What it is, when it is imposed, and what happens if it doesn’t work out.
35. How does probation work? Probation is a figurative leash that the criminal justice system puts on defendants in lieu of incarceration in jail or prison. Offenders who are put on probation (either instead of or in addition to any other punishment they might receive) are typically required to adhere to a number of conditions of probation. Common conditions of probation include: • obey all laws (breaking even petty laws like jaywalking have been known to land a probationer back in jail); • abide by any court orders, such as an order to pay a fine or restitution; • report regularly to the probation officer;
• report any change of employment or address to the probation officer; • abstain from the excessive use of alcohol or the use of any drugs; • refrain from travel outside of the jurisdiction without prior permission of the probation officer; and • avoid certain people and places (for example, an offender convicted of assaulting his ex-wife may have as one condition of probation that he avoid any contact with his ex-wife or her family). Probation officers also can check in on a probationer—at home or at work, announced or unannounced. Some probationers such as those convicted on drug charges are also subject to random searches and drug tests. Most courts have concluded that probationers do not have the same Fourth Amendment rights to be free from unreasonable searches and seizures as other people. (More on search and seizure in Chapter 2.)
36. If I get probation, does that mean I won’t go to jail? Not necessarily. A sentence may be straight probation with no other punishment, or it may be probation following some time in jail. Most commonly, the judge sentences the defendant to a certain period of time in jail, but suspends (puts on hold) the jail time and lets the defendant serve the remaining portion of the sentence on probation. If the defendant violates any of the probation conditions, however, the judge can lift the suspension and put the original sentence back in place.
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37. What factors will the judge consider when deciding whether to give me probation? When deciding whether to give the defendant probation, the judge will look at the defendant’s criminal record and the seriousness of the crime. The judge will also consider: • whether the crime was violent; • whether the defendant is a danger to society; • whether the defendant made or is willing to make restitution to the victim; and • whether the victim was partially at fault.
38. What type of supervision does the probation officer provide? Reporting to a probation officer can mean a number of things. The offender may be required to go to the probation office once a week, monthly, or even less frequently. In some busy metropolitan areas it may only mean mailing the probation officer a postcard once per month. As stated above, probation officers may also search probationers, may show up at their homes or workplaces, and may require probationers to submit to drug tests.
39. If my probation conditions are too difficult to live with, is there a way I can get them changed? If a defendant can show good cause why a judge should change the original probation order, the judge may grant the request and modify the terms of probation.
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Case Example: Greta Charles was sentenced to 48 hours in jail, a large fine, community service, and probation on a second drunk driving offense. One condition of probation was that she not drive for one year. Six months later, Greta got a job that required her to drive. With her lawyer, she contacted the probation officer, who agreed that she had complied with all of the probation conditions for the first six months. The P.O. (probation officer) told them he would not oppose their request to the judge to lift the ban on driving for the remainder of the probation term. Question: Will the judge let Greta drive? Answer: Probably. Although the judge has authority to deny such requests, most judges tend to follow the probation officer’s recommendations. In this case, the judge is likely to grant the request because Greta: • served the jail term; • abided by her probation; • paid her fine and performed her community service; and • made the request so that she could be gainfully employed (Greta had proof in the form of documentation from the new employer).
40. If I violate a condition of my probation, what’s likely to happen to me? Defendants caught (either by police or probation officers) violating a condition of probation are subject to having their probation revoked (taken away) and all or part of the original suspended jail or prison sentence reimposed. Since one typical condition of probation is to obey all laws,
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a probationer who is rearrested on even a minor charge may then be subject to penalties for both the current arrest and the probation violation.
41. Do I get a hearing before my probation is revoked? Yes. If a probation violation is discovered and reported, it is likely that the court will conduct a probation revocation hearing. If the defendant violated probation by breaking a law, the probation revocation hearing will probably take place after the new offense has been disposed of. If the violation was not a new criminal offense but nevertheless broke a condition of probation (for instance, socializing with people the judge prohibited a defendant from contacting), then the revocation hearing may take place as soon as practicable after the violation is reported. Defendants are entitled to written notification of the time, place, and reason for the probation revocation hearing.
42. What happens at a probation revocation hearing? A probation revocation hearing is like a minitrial without a jury. Both the defense and prosecution may present evidence to show the judge why the defendant should or should not be subjected to whatever penalty the judge originally imposed. The defendant is allowed counsel at this hearing, but the judge does not have to follow strict rules of evidence. Additionally, the legal standard in a probation revocation hearing is lighter than
the beyond a reasonable doubt standard of criminal trials. In the revocation hearing, typically, the prosecution will only have to prove by a preponderance of the evidence that the defendant violated a condition of probation. (These legal standards are difficult to quantify, but essentially this means that it doesn’t take as much evidence, or that the evidence doesn’t have to be as compelling, to take away someone’s probation as it does to find someone guilty of a crime in the first place. In essence, probation is a privilege that can be more easily lost than one’s initial freedom.)
43. Is it possible to plea bargain a probation revocation charge? Yes. When a defendant arrested on new charges is found also to be in violation of an earlier probation order, the defense may negotiate a new plea bargain to cover both offenses in one package deal. This is especially common in busy, big-city courts where calendars are backlogged. (See Chapter 20 for more on plea bargaining.)
Subsection D: Community Service This subsection is about when the court may order the defendant to do some work in the community as an alternative to spending time in jail.
44. Can the judge make me work as part of my sentence? Yes. Judges can sentence defendants to perform unpaid community work called
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“community service” to repay a debt to society for having committed the offense. The defendant may be required to perform community service in addition to receiving some other form of punishment, such as probation, a fine, or restitution.
45. What kind of work does community service usually involve? Typically, offenders are assigned to work for nonprofit or government agencies, such as parks, libraries, schools, cemeteries, religious institutions, and drug and alcohol treatment centers. They may be sentenced to do a wide range of work—from cleaning highways to lecturing students on the dangers of drunk driving. In one very effective community service program, gang member offenders work in a home for mentally and physically challenged children, helping them to dress, eat, and play. Some offenders do community service work in group settings, with other offenders; other times they work alone. They may be supervised directly by the nonprofit group or government agency they are sent to work for or by the probation department. And they may have to report to the court or probation officer at regularly-scheduled times to prove that they are complying with the community service order.
Subsection E: Miscellaneous Alternative Sentences This subsection is about some of the more creative sentencing alternatives that have been tried in recent years.
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46. Are there any other kinds of sentences I might get? Yes. There are many different types of “alternative sentences.” Alternative sentencing is the buzzword for an increasingly visible movement in the criminal justice system. Largely inspired by overcrowded and nonrehabilitative prisons, some judges are beginning to work with prosecutors and defense lawyers to impose nontraditional sentences, especially in cases that don’t involve violence. To some, alternative sentencing means anything other than incarceration. And it is true that many alternative sentences are simply variations of probation—perhaps with a fine and community service thrown in. But alternative sentencing can also include fairly innovative punishments. People have been required to: • Install breathalyzer (“ignition interlock”) devices in their cars so that their cars will not start unless the offender blows into the device and has “clean” breath (after drunk driving convictions); • Drive around with signs on their cars notifying others they’d been convicted of a drunk driving offense. (This may be a modern equivalent of the scarlet letter); • Give lectures or teach classes about the dangers of criminal behavior; • Attend lectures given by crime victims. (Convicted drunk drivers may be required to listen to families of people who were killed or maimed in alcoholrelated accidents); • Complete a drug or alcohol treatment program; • Do weekend jail time;
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• Stay at home under house arrest. A person under house arrest may be required to wear an electronic monitoring device, such as an ankle bracelet; • Live in their own slummy building; and • Serve time in private jails. Private contractors provide jail services for a fee, which they charge both governments and inmates. Another alternative approach to handling offenses, especially minor ones and those for which prosecutors have declined to press charges, is for the prosecutor to send the defendant and the victim to a neighborhood justice center to resolve their dispute through a process known as mediation. In mediation, a neutral third party helps the disputing parties arrive at a mutually satisfactory agreement.
“Megan’s Law” (Sex Offender Registration) A “Megan’s Law,” in effect in many jurisdictions, applies to offenders who have been convicted of certain types of sexual crimes, especially sexual crimes against children. (The law was named after Megan Kanka, a seven-year-old New Jersey girl who was raped and killed by a previouslyconvicted child molester who lived across the street from Megan’s family.) A Megan’s Law typically requires an offender to register with police authorities, usually upon release from prison. Depending on an assessment of the risk that an offender will commit a future sexual crime, a Megan’s Law also requires police agencies to notify schools, other agencies, and the public at large as to a registered offender’s whereabouts. The names of registered offenders become part of a national database of sex offenders. Some types of sexual conduct that once were crimes have in recent years been decriminalized. For example, the U.S. Supreme Court invalidated laws prohibiting consensual sex between same-sex couple. (Lawrence v. Texas, U.S. Sup. Ct. 2003). People convicted under such laws who had to register may be able to apply to their state’s justice department to have their name removed from its sex offender database.
Chapter 22: Sentencing
47. I’ve heard that some states have drug courts to handle certain types of drug cases. What are they, and how do they work? Drug courts are a variation of the same current push for alternative sentencing. Founded in the late 1980s, drug courts originally dealt with first-time drug offenders but now admit some repeat offenders. In a slightly different setting than the usual courtroom, the judge and lawyers work together to keep the defendants enrolled in a drug treatment program for a certain minimum period of time. Attorneys in drug courts do not speak as advocates on behalf of their clients; the judge actually talks directly to defendants, who must in turn answer directly. The treatment programs include acupuncture, counseling, education, and job training, along with regular, frequent court appearances and drug testing. The results from some of these programs have been so positive that other jurisdictions are now beginning to set up their own drug courts. By the mid-1990s, there were some 80 drug courts nationwide and many more in the works. Among other achievements, studies show significantly less recidivism (rearrests) in drug court graduates than among regularlysentenced defendants.
48. What is parole, and how does it work? Parole is early jail or prison release granted by prison officials. Parole is similar to probation in that the offender is free from prison, with rights limited by the parole conditions. Conditions of parole tend to be similar but more restrictive than probation conditions. See Chapter 26 for information about parole.
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49. How is a pardon different from probation and parole? A pardon (also sometimes called a “grant of clemency”) is an order from a jurisdiction’s chief executive (a state’s governor or the president of the United States) relieving a convicted person of the penalties for having committed a crime. While a pardon does not necessarily erase a conviction, a pardon normally restores a person’s civil rights. See Chapter 26 for more information about pardons.
Section IV: The Death Penalty This section examines the basic rules and procedures concerning the ultimate criminal sentence, the death penalty.
50. What is the current status of the death penalty in the United States? As of March 2007, 38 states authorize capital punishment, though New York courts have declared its existing statute to be unconstitutional. Five of these states (of which New York is one) have not had an execution since 1976. The offenders who commit such murders are considered the “worst of the worst.” Though some states provide for the possibility of capital punishment in cases involving drug trafficking, aircraft hijacking, and other crimes, all or virtually all of the prisoners now on “death row” have been convicted of murder. Federal criminal laws authorize capital punishment for those convicted of more than 40 different kinds of crimes, including treason, aggravated murder, and drug
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trafficking. Among the most notable people executed by the federal government are Ethel and Julius Rosenberg, executed in 1953 after being convicted of espionage for passing atomic secrets to the Soviet Union; and Timothy McVeigh, executed in 2001 for blowing up a federal office building in Oklahoma City and killing 168 people. However, comparatively few cases involving the death penalty arise in federal court. At the end of 2006, a total of about 3,350 inmates were on death row, a decrease from the year before. Only 50 of these inmates were women. Fifty-three executions were carried out in 2006, compared with 60 in 2005, 59 in 2004, 65 in 2003, and 71 in 2002. (As of the end of March, 11 executions have been carried out in 2007.) In 2005, 128 death sentences were handed down, compared to 138 in 2004 and 153 in 2003. Since 1976, when the U.S. Supreme Court upheld the legality of revised death penalty statutes in the case of Gregg v. Georgia, a total of 1,068 executions have been carried out. Twenty-two of these executed prisoners were under age 18 when they committed the crimes for which they were sentenced to death, a practice that the U.S. Supreme Court later declared unconstitutional (Roper v. Simmons, 2005). Among the 38 states that provide for capital punishment, the rate at which the death penalty is actually carried out varies greatly by region of the country. Since 1976, Southern states have accounted for 876 of the 1,068 executions, with Texas and Virginia accounting for 487 of the Southern state executions. Western states have carried out 66 executions, Midwestern states 122, and Northeastern states four.
Lethal injection (depicted in graphic detail in the film, “Dead Man Walking”), is generally considered to be the most humane form of execution and is the most common current method of carrying out executions. A few states still authorize methods such as electrocution and the gas chamber, but they are rarely used. Hanging and firing squads are outmoded forms of execution that may remain “on the books” in a few states but are no longer used. Dissection and dismemberment, two favorites of the eighteenth century, designed to make the idea of capital punishment as frightening as possible, are long gone.
51. What factors determine whether a death penalty law is valid under the U.S. Constitution? Decisions of the United States Supreme Court have established a variety of standards with which capital punishment laws must comply to satisfy the federal Constitution. The most important standards are: • Statutes authorizing judges and juries to impose the death penalty must set out specific sentencing guidelines that they must consider when determining whether to sentence a particular defendant to death (Gregg v. Georgia, U.S. Sup. Ct. 1976). These statutory guidelines consist of “aggravating factors” (factors suggesting that a defendant might merit a harsher sentence) and “mitigating factors” (factors suggesting leniency). For example, a statute might instruct jurors who have convicted a defendant of a capital crime to take factors such as
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these into account when deciding on punishment: - whether a defendant has previously engaged in violent criminal activity; - whether a defendant has prior felony convictions; - whether a defendant was at the time a crime was committed under extreme duress or the domination of another person; - a defendant’s character, background, history, and mental and physical condition; and - evidence of innocence that the defendant had offered into evidence at trial (Oregon v. Guzek, U.S. Sup. Ct. 2006). So important are these factors that a defense attorney’s failure to investigate a defendant’s personal background thoroughly can constitute “ineffective assistance of counsel” that requires a sentence of death to be reversed (Wiggins v. Smith, U.S. Sup. Ct. 2003). Defendants tried by juries are entitled to have jurors rather than judges consider the sentencing guidelines and decide whether the death penalty is appropriate (Ring v. Arizona, U.S. Sup. Ct. 2002). • The trial must be “bifurcated.” That is, a jury has to first decide whether a defendant is guilty of a capital crime. Then, in a separate proceeding, the jury considers evidence relating to aggravating and mitigating factors and decides whether to sentence a defendant to death or impose a lesser sentence. In many states, if a jury recommends death, the judge retains the power to decide on a
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lesser sentence, such as Life Without Possibility of Parole (LWOP). On the other hand, should a jury in one of these states recommend a life sentence, the judge has no power to impose the death penalty. • The Eighth Amendment’s ban on “cruel and unusual punishment” limits the crimes for which the death penalty can be imposed. For example, a defendant convicted of rape of an adult cannot constitutionally be sentenced to death (Coker v. Georgia, U.S. Sup. Ct. 1977). • The death penalty cannot be carried out on prisoners who are mentally retarded (Atkins v. Virginia, U.S. Sup. Ct. 2002). • The death penalty cannot be imposed on offenders who were under age 18 at the time they committed a crime potentially punishable by death (Roper v. Simmons, U.S. Sup. Ct. 2005). Imposition of death in these circumstances violates both the Eighth (“cruel and unusual punishment”) and Fourteenth (“due process of law”) Amendments.
52. What are “special circumstances”? Among the 38 states that authorize capital punishment, many limit its possible use to murder cases in which “special circumstances” exist. In these states, a prosecutor has to file a murder charge as a “special circumstances” case and prove beyond a reasonable doubt that one or more of the charged circumstances apply. Here are some “special circumstances” that might lead a prosecutor to seek the death penalty: • A murder was committed for the purpose of financial gain;
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• The defendant has a prior conviction for murder; • The murder was committed for the purpose of escaping from custody; • The victim was a police officer, firefighter, or government official; • The murder was committed by means of poison or an explosive device; or • The murder was carried out in a particularly heinous and cruel manner. Case Example: Shemp is charged with first degree murder for killing Moe “with malice aforethought.” The jury convicts Shemp of murder and on the verdict form indicates that “we the jury conclude that Shemp carried out the murder in such a vicious and cruel manner that he ought to be put to death.” Question: If the state’s laws allow the death penalty for a murder committed in a vicious and cruel manner, is the death sentence proper? Answer: No, for two reasons. First, a death sentence may be handed down only if the prosecutor seeks the death penalty at the outset of a case and identifies in advance the “special circumstances” that allow the death penalty to be handed down; also the jury must be told that the special circumstances must be proved beyond a reasonable doubt. Second, the death penalty can be imposed only after a separate penalty hearing in which both sides have an opportunity to present evidence of aggravating and mitigating factors.
53. Do prosecutors use special procedures when deciding whether to seek the death penalty? Yes. In the usual case in which capital punishment is not an option, charging decisions are made by a single prosecutor who reviews police reports and decides what charges to file. (See Chapter 6.) By contrast, a charging decision in a capital case is usually made by a team of a District Attorney’s most experienced prosecutors, often including the District Attorney personally. Before deciding to seek the death penalty, the prosecutorial team must of course be convinced that it can be proved that a defendant committed a capital crime. Charging decisions may also be influenced by factors such as the following: • Costs. Compared to cases in which LWOP is the ultimate sentence, capital cases normally add to a case’s costs and complexity. For example, capital cases ordinarily take longer to try and may involve automatic appeals. Also, in some states a defendant facing the death penalty is entitled to two governmentpaid lawyers rather than one. • Adverse jury reaction. A prosecutor may fear that a jury will acquit a defendant for whom it may feel some sympathy rather than see the defendant face the possibility of execution. (This was apparently a major factor in the L.A. District Attorney’s decision not to ask for the death penalty in 1995’s famous prosecution of O.J. Simpson. Of course, Simpson was acquitted anyway.) • Popular support. A prosecutor may believe that continued popular support of the death penalty depends on seeking it only in the most egregious cases.
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• Excuse of defense-minded jurors. A prosecutor who seeks the death penalty is entitled to remove potential jurors who have serious qualms about voting for capital punishment. Because the jurors removed by this process may be defense-oriented, prosecutors may seek capital punishment in order to select a jury that may be prosecution-minded. • Improper biases and prejudices. Some commentators contend that prosecutors are more likely to seek the death penalty when defendants are poor or members of ethnic minorities, especially when their victims are Caucasian. On the other hand, if the jury recommends LWOP, the judge has no power to impose the death penalty.
54. What are the issues in the death penalty debate? The debate over the morality and wisdom of the death penalty began to heat up in the latter half of the twentieth century. One factor was that many Western European and other countries, including Canada, Mexico, and New Zealand, abolished the death penalty in the period between 1950 and 1970, leaving the United States increasingly isolated as a country with both a modern and complex criminal justice system and capital punishment. Another factor was that the appeal process began to lengthen, making death row prisoners increasingly visible. Among the most famous of these was Caryl Chessman, the so-called “red light bandit,” who was sentenced to death in California in 1948 for committing a number of “lovers lane” kidnappings (he killed
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nobody). A series of appeals kept Chessman alive until his execution in 1960. While in prison he wrote four books that called international attention to the United States’ use of the death penalty, since some of his books were translated into other languages and became popular in other countries. (One of his books became a 1955 film, “Cell 2455, Death Row.”) Polls indicate that somewhere between 60% and 70% of Americans continue to support capital punishment, a figure that has dropped somewhat since states have created the alternate sentence of Life Without Possibility of Parole. However, the debate over the legitimacy of the death penalty is likely to continue for many years. One reason is that at the center of the debate are conflicting beliefs about the morality of the death penalty, and attitudes based on what people view as moral imperatives are not easily changed. A second issue dividing death penalty proponents and opponents concerns deterrence. Proponents argue that the death penalty deters at least some people who would otherwise commit murders from doing so, and that its deterrent effect would be even greater were unnecessary delays in carrying out death sentences eliminated. However, the answer to the question of whether the death penalty acts as a deterrent is uncertain. Many social science researchers have investigated the deterrence hypothesis; some studies have shown a deterrent effect while others have not. Whatever their conclusions, the weakness in all these studies is that consensus is lacking on how to “model” the murder rate. That is, deterrence can be
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measured only by comparing murder rates in different jurisdictions that have or don’t have the death penalty using variables such as poverty rates, racial makeup, and the like. Since researchers don’t agree on which variables to include and how much weight to give them, there exists “a raging methodological disagreement over how best to pick the variables, and a nagging suspicion that researchers’ own attitudes toward capital punishment were subconsciously influencing the forms of equations” (The Death Penalty: An American History, by Stuart Banner (Harvard Press)). Equally untestable at present is the claim that the death penalty’s deterrent effect would be greater were it carried out more quickly or frequently, because the federal constitution prevents states from eliminating or severely cutting back on prisoners’ access to the courts. A third issue concerns the risk of executing innocent prisoners. The use of DNA testing and other scientific techniques has revealed that a few death row prisoners were factually innocent. In recent years, at least two states, Illinois and Maryland, have placed a moratorium on carrying out the death penalty because of worries that innocent people may be put to death. Death penalty proponents of course have no desire to execute innocent prisoners and generally agree that its use should be confined only to those whose guilt is beyond dispute and who are in fact “the worst of the worst.” However, some support for the death penalty has been undermined by the fact that mistakes have been made in the past and the risk that, despite the wide use of scientific technology at trial, others may be made in the future.
A fourth issue concerns what opponents claim is the disparate racial impact of the death penalty. The U.S. Supreme Court has ruled that racial disparities in the use of the death penalty, if any, do not render its use unconstitutional (McCleskey v. Kemp, U.S. Sup. Ct. 1987). Nevertheless, in an effort to convince states to abolish capital punishment, opponents argue that the disparity in the use of the death penalty concerns not the defendants but the victims of crimes. The death penalty is unfair, they argue, because research studies tend to show that it is imposed when victims are Caucasian much more often than when they are Black or members of other racial minorities. However, the merits of this argument are unclear. As Banner points out, “Most murders involved criminals and victims of the same race, so equalizing the treatment of victims would cause more black defendants to be sentenced to death. From the point of view of one concerned with race discrimination, was that a desirable outcome?” Banner concludes that the consequences of the racial disparity argument are unclear (The Death Penalty: An American History, by Stuart Banner (Harvard Press)). A final concern involves the costs of administering the death penalty. The costs are much higher than for prisoners given other types of sentences, including Life Without Possibility of Parole. The high costs are attributable to the legal system itself. For example, in many states defendants facing the death penalty who cannot afford to hire private attorneys (and that is almost all defendants) will be represented by two lawyers rather than one, both paid for by
Chapter 22: Sentencing
the government. Also, both the prosecution and the defense are likely to call on a variety of expert witnesses both at the guilt and sentencing phases of capital cases, adding significantly to their cost. Another reason for the high costs of capital punishment is that death penalty verdicts typically generate lengthy appeals and “collateral attacks” via habeas corpus and other procedures. Finally, “death rows” themselves entail higher costs, in part because states take extra precautions with prisoners sentenced to death. If opponents succeed in convincing states to eliminate capital punishment, the reason may be that people come to believe that the financial impact of the death penalty on state budgets outweighs the death penalty’s merits.
References The following references can provide more death penalty information: • The Death Penalty: An American History, by Stuart Banner (Harvard Press), is a thorough and largely neutral
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account of the history of the use of the death penalty. • Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted, by Jim Dwyer, et. al. (Doubleday, 2000), explains the use of DNA evidence in murder trials and describes a number of fascinating cases of “getting the wrong guy.” • The Cornell Death Penalty Project (サニーランドスケープ スカート 130cm death) is an anti-capital-punishment website administered by the Cornell Law School. • The American Civil Liberties Union provides anti-capital-punishment information at its website (youth loser 1997 リュック. org/capital/index.html). • Pro-Death Penalty.com (www. prodeathpenalty.com) is one of the few sites with information supporting the death penalty and links to other websites, both pro and con. • The Death Penalty Information Center (www.deathpenaltyinfo.org) sponsors an anti-death-penalty website. ■
Chapter 23
Appeals: Seeking Review by a Higher Court Section I: Appeals………………………………………………………………………………………………490 1. What is an appeal?……………………………………………………………………………………490 2. If I had a private lawyer at trial, can that lawyer handle my appeal?………………….490 3. Can I remain free on bail during the time I’m appealing the conviction?…………….491 4. When can I file an appeal?…………………………………………………………………………491 5. How long do I have to decide whether I want to appeal?…………………………………492 6. How long will the whole appeal process take?………………………………………………492 7. During trial my lawyer said we have to “make a good record for appeal.” What does this mean?……………………………………………………………………492 8. How do I get a copy of the trial transcript?…………………………………………………….494 9. What happens after I’ve given notice I want to appeal?……………………………………494 10. What is an “appellant” and an “appellee”?……………………………………………………494 11. What information do appellate courts consider when ruling on an appeal from a trial court conviction or sentence?……………………………………………494 12. What exactly goes into a written appellate brief?……………………………………………495 13. What happens after the briefs are written and filed?………………………………………..495 14. What does it take to get a conviction reversed?………………………………………………495 Section II: Writs . ………………………………………………………………………………………………496 15. What is a writ?………………………………………………………………………………………….496 16. What’s the difference between a writ and an appeal?……………………………………..496 17. What is a writ of habeas corpus?………………………………………………………………….497 18. Can habeas corpus be used for anything other than getting me out of jail?………….498 19. What other writs might be relevant to my case?……………………………………………..498 20. At what stage of my case can I file for a writ?…………………………………………………499
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not guilty verdict on all charges normally ends a criminal case. The prosecution cannot appeal once a defendant has been acquitted of the originally-charged offenses and any additional offenses the judge may allow the jury to consider. A guilty verdict, however, on some or all the charges, does not necessarily mean the case is over. Defendants who think they’ve been wrongfully convicted have a number of options: 1. The defendant can make a motion asking the trial judge to overturn the jury’s guilty verdict and enter a verdict of not guilty; 2. A defendant can move for a new trial—that is, ask the judge to set aside the jury’s verdict, declare a mistrial, and start over; 3. Defendants can appeal (ask a higher court to reverse the conviction because the jurors made a mistake); and Chapter 19 discusses the motions that a defendant can bring after a jury or judge has found the defendant guilty. This chapter discusses common questions about appeals to higher courts.
Section I: Appeals This section provides an overview of the appeal process in a criminal case.
1. What is an appeal? An appeal is a request to a higher (appellate) court for that court to review and change the decision of a lower court. Because posttrial motions requesting trial courts to change their own judgments or order new jury trials are seldom successful, the defendant who hopes to overturn a guilty verdict must usually appeal. The defendant may challenge the conviction itself or may appeal the trial court’s sentencing decision without actually challenging the underlying conviction.
2. If I had a private lawyer at trial, can that lawyer handle my appeal? As a general rule, a convicted defendant should try to find a lawyer who is experienced in appeals. While this may be the same lawyer who tried the case, often attorneys who handle criminal appeals possess a special expertise regarding that process—an expertise that many trial lawyers lack. Also, many appeals involve the possibility of challenging the competency of the trial attorney as a basis for appeal.
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Self-Representation on Appeal As mentioned throughout this book, in most circumstances self-representation in a criminal case can be risky because: • the rules are complex; • the stakes can be high—liberty or life— not “just” losing money as in civil cases; and • court personnel, judges, and even jurors are often hostile toward self-represented defendants. If these factors are present in pretrial and trial proceedings, they are even more evident in appeals, which tend to be more formal and to involve more written work and pickier rules. Appellate courts have requirements for every aspect of appellate practice; written briefs are no exception. Rules for briefs often specify the number of pages, type and color of paper, binding, size of spacing, and even print type. For these reasons, and because the law can be complex, drafting an appellate brief
3. Can I remain free on bail during the time I’m appealing the c onviction? Defendants who have been at liberty during the pretrial and trial phases of a case often are allowed to remain at liberty pending an appeal, although some states impose extra requirements. For instance, in felony cases in California, the defendant must show by clear and convincing evidence that she is not a danger to the community or to other people. (See Cal. Pen. Code § 1271.1(3)(b).)
can be difficult even for an experienced attorney. Counsel may have to undertake extensive legal research to effectively understand and make appropriate references to necessary statutes, court cases, and administrative regulations, and sometimes even the state or the federal constitution. Appellate courts also have their own sets of rules for oral arguments, which may differ from the rules in trial courts. Thus, even defendants who represented themselves at trial may want to hire an attorney for an appeal. That said, it is possible (though undoubtedly rare) for a self-represented defendant to get extra sympathy on appeal. In at least one instance known to the authors, an earnest, enthusiastic law clerk who felt sorry for a self-represented defendant researched the issues and “rewrote” the defendant’s brief in order to more effectively present that defendant’s arguments to an appellate court judge.
4. When can I file an appeal? The general rule is that cases may not be appealed until the trial court enters a final judgment. The entry of judgment is the official recording of the judge or jury’s guilty verdict or the judge’s order denying any posttrial motions. Not surprisingly, this is known as the “final judgment rule.” The policies behind the final judgment rule are to prevent piecemeal and repetitive appellate review of trial judges’ rulings, and to eliminate appeals altogether in cases that end with not guilty verdicts.
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Case Example: Eileen Johnson is on trial for assault with a deadly weapon. During the testimony of a prosecution witness, the judge admits evidence that Eileen’s attorney thinks is improper hearsay. Question: Can Eileen immediately appeal the trial judge’s decision to admit the testimony? Answer: No. Under the final judgment rule, Eileen cannot appeal until the case is over. If Eileen is convicted, Eileen can ask the appellate court to set aside the judgment based on the erroneous admission of hearsay evidence and on any other grounds that may exist.
5. How long do I have to decide whether I want to appeal? Appeals are subject to strict time limits. A defendant may have to file a paper called a notice of appeal very soon, often within seven to ten days after the entry of the final judgment. A notice of appeal tells the prosecution and the court that the defendant intends to bring an appeal. Defendants who later change their minds may withdraw notices of appeal without penalty, but if they don’t first file their notices in time, they will likely have lost their right to appeal.
6. How long will the whole appeal process take? The appeals process usually takes many months. A trial transcript must be prepared, and both the defense and prosecution prepare briefs and respond to each other’s briefs. Also, some cases go through two or
even three levels of appellate courts. (See the list at the end of this chapter.)
7. During trial my lawyer said we have to “make a good record for appeal.” What does this mean? The official trial record consists of: • what is said and taken down by the court reporter during court proceedings; • exhibits admitted into evidence; and • documents filed with the court. Because appellate courts do not hear new evidence—they rely on the written trial record—what goes into that record is allimportant for an appeal. Defense attorneys make a good trial record when they carefully: • Advise a trial judge of all the evidence supporting their arguments. For example, defense witnesses must testify loudly enough for the judge, jury, and court reporter to hear and understand what they say. • Translate gestures (made by witnesses, counsel, the judge, or anyone else who speaks) into words. Assume that a witness holds her hands two feet apart and testifies, “I was standing this far away from her.” The distance may be clear to everyone in the trial courtroom, but it will be meaningless to appellate judges. The appellate judges have only a transcript to read; they can’t see the witness or ask for further clarification. The attorney must make a good trial record by translating the gesture into words: “For the record, the witness is holding her hands about two feet apart.”
Chapter 23: Appeals
• Advise the trial judge of all the evidence and arguments concerning the admissibility of evidence. As a general rule, appellate courts will not consider arguments about the admissibility of evidence unless the arguments were raised in the course of the trial (thereby giving the trial judge a chance to rule). For instance, the appellate court will consider an argument that the trial judge should have excluded prosecution evidence only if that argument was first made to the trial judge at the time the evidence was offered. It is especially important for the defense to make a good record, because most criminal trials end in guilty verdicts. If the defendant wants a shot at a reversal on appeal, the trial court record must be solid. As mentioned, if something bad happens to the defendant during trial that does not become a part of the record, the appellate court cannot consider it. If the appellate court can’t even consider what happened, it is not likely to reverse a guilty verdict. By contrast, the more complete the record, the better the defendant’s chances on appeal (assuming, of course, that mistakes were made that likely influenced the outcome). Case Example 1: A prosecution witness, the alleged victim Suzie Fels, sneers at the defendant Andrew Williams while he is testifying. Suzie mouths in a whisper (so the court reporter can’t hear) to the jury, “Evil man … I hope he hangs.” Question: What, if anything, should the defense do?
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Answer: Speak up and say something like, “Your Honor, let the record reflect that the witness is making faces at my client and whispering things to the jury. Please instruct the witness to stop that prejudicial behavior and instruct the jury to disregard her actions and statements.”
Case Example 2: Same case. Question: If Andrew’s lawyer did not stop the proceedings and put the facts on the record, could he later complain to the appellate court that, “the verdict should be overturned because Suzie made faces at my client and whispered disparaging remarks to the jury”? Answer: No. If the behavior does not appear in the record, it won’t be considered by the appellate court.
Case Example 3: Same case. The trial court judge gives the instruction desired by the defense, but Andrew is convicted anyway. On appeal, Andrew argues, “The trial court judge should have stopped the trial immediately and dismissed the charges because of Suzie’s grossly prejudicial behavior.” Question: Will an appellate judge consider this argument? Answer: Probably not. Andrew neglected to argue for dismissal during the trial. Since Andrew didn’t give the trial court judge a chance to consider this argument, an appellate judge needn’t rule on it. To make a good record, the defense should have argued for dismissal during the trial.
Case Example 4: Dave Lenoman is on trial for burglary. Dave’s defense is an alibi.
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During the trial, Dave asks the judge to receive into evidence a hotel receipt showing that Dave was out of town on the evening of the burglary. The judge rules that the receipt is inadmissible hearsay, and refuses to admit the receipt into evidence unless Dave offers evidence showing that the receipt is a business record, a type of admissible hearsay. Dave fails to offer such evidence. On appeal, Dave submits an affidavit from the hotel clerk demonstrating that the receipt was a business record. Question: Will an appellate judge rule that the trial judge should have admitted the receipt into evidence as a business record? Answer: No. Dave failed to offer the necessary evidence at trial, and can’t offer it for the first time on appeal.
9. What happens after I’ve given notice I want to appeal? Once the defense decides to appeal a case and files a notice of appeal, the appellate court will typically set a schedule. They tell the parties when their briefs (written arguments) must be filed and when the parties must appear in court, if at all, to present their case orally to the court (called “oral argument”).
10. What is an “appellant” and an “appellee”? When the appellate process starts, the defendant is usually called the appellant or petitioner. And the prosecution is called the appellee or respondent.
Case Example 5: Same case. During Dave’s trial, the prosecutor offers evidence that Dave had been previously convicted of drunk driving. Dave neglects to object to this evidence. Question: On appeal, can Dave argue that the trial judge should have excluded evidence of the conviction? Answer: No. Since Dave neglected to object to the evidence during trial, he cannot object on appeal.
8. How do I get a copy of the trial transcript? As part of preparing an appeal, the defense must order a trial court transcript from the court reporter. Transcripts are usually quite costly. However, indigents (poor defendants) may obtain transcripts at no or little cost.
11. What information do appellate courts consider when ruling on an appeal from a trial court conviction or sentence? An appellate court will not look at new evidence or hear witnesses. Unlike trial courts that decide issues of fact (deciding who is telling the truth or what happened), appellate courts decide issues of law. Appellate judges read the parties’ briefs and make decisions such as whether a trial court decision should be overturned or whether a sentence should be modified.
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12. What exactly goes into a written appellate brief? Briefs typically refer to: • Specific parts of the trial transcript. (Appellate judges generally look only at those portions of the record cited in the briefs submitted by the parties); and • Statutes and previous court opinions that the lawyers are relying on as authority for the appellate court to uphold or overturn the trial judge’s rulings. Lawyers develop the arguments in briefs by doing legal research into how other courts have decided similar legal problems and then applying the reasoning in these earlier decisions to the present case. (More on legal research in Chapter 27.) Typically there are three briefs in an appeal from a criminal case: • the appellant files an opening brief; • the respondent files a responding brief; and • the appellant files a reply brief.
13. What happens after the briefs are written and filed? After briefs are filed, the lawyers may have the opportunity to appear before the appellate court to orally argue the appeal. It is an increasingly common practice, however, for courts to decide appeals on the briefs and trial record without hearing argument. If an oral argument does take place, it will likely be limited in time—from two to five minutes in some state appellate
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courts to 30 minutes in some federal courts. Because both sides will have submitted their arguments in writing ahead of time, the appellate judges will know what the issues are and often limit the discussion to specific questions. An appellate court may take days, weeks, or even months to decide an appellate case.
14. What does it take to get a conviction reversed? Appeals judges generally resist overruling trial court judgments and prefer to give trial judges wide discretion in the conduct of trials. As many appellate courts have said, defendants are not guaranteed “perfect” trials. Normally an appellate court will overturn a guilty verdict only if the trial court made an error of law that significantly contributed to the outcome. Put differently, an error by the trial judge will not lead to a reversal of a conviction as long as the error can reasonably be considered harmless. Not surprisingly, most errors are deemed harmless, and consequently few convictions are reversed on appeal. Sentences are a different matter. When the trial judge is given discretion over the sentence, the appellate court will rarely interfere. However, if the law requires a particular sentence and the judge gets it wrong, the appellate court will usually send the case back for resentencing.
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Section II: Writs This section is about some of the ways a criminal defendant can get help from a higher court outside of the regular appeals process.
Writs, like appeals, are complex and involve picky details. Defendants facing situations in which they may be entitled to take a writ should consult counsel.
15. What is a writ?
16. What’s the difference between a writ and an appeal?
The word “writ” traces its roots to English common law. In Old English, writ means a letter, often written by an attorney. Writ was the name for an action in the courts. There were different kinds of writs for different actions—writs to recover land or personal property, to enforce judgments, to seek damages for broken contracts. Most of the common law writs have been abolished and replaced by the civil actions we know today. In another sense, the word writ meant, and still means, an order. For example, an “original writ” in old England was a letter from the king to the local sheriff ordering someone who committed a wrong to either make repairs to the person wronged or appear in court to face formal accusations. In this context, the original writ is most like our “summons” ordering a party to appear in court. In most modern American jurisdictions, a writ is an order from a higher court to a lower court or to a government official such as a prison warden. Defendants may seek several types of writs from appellate judges directed at the trial court or at a lower appellate court. (Many states have two levels of appellate courts—an intermediate appellate court and the state Supreme Court.) This section merely provides an overview about common writs.
Writs usually are considered to be extraordinary remedies, meaning they are permitted only when the defendant has no other adequate remedy, such as an appeal. In other words, a defendant may take a writ to contest a point that the defendant is not entitled to appeal. Any one of the following reasons, for example, may prohibit an appeal (and justify a writ): • The defense did not lodge a timely objection at the time of the alleged injustice; • The matter at issue concerns something that goes beyond the trial record; • A final judgment has not yet been entered in the trial court, but the party seeking the writ needs relief at once to prevent an injustice or unnecessary expense; • The matter is urgent. Writs are heard more quickly than appeals, so defen dants who feel wronged by actions of the trial judge may need to take a writ to obtain an early review by a higher court; and • The defendant has already lodged an unsuccessful appeal (in some cases, defendants may file multiple writs, but the right to appeal is limited to one).
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17. What is a writ of habeas corpus? Defendants who want to challenge the legality of their imprisonment—or the conditions in which they are being imprisoned—may seek help from a court by filing what is known as a “writ of habeas corpus.” A writ of habeas corpus (literally to “produce the body”) is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order. Many state constitutions provide for writs of habeas corpus, as does the United States Constitution, which specifically forbids the government from suspending writ proceedings except in extraordinary times— such as war (Article 1, § 9[2]). Known as “the Great Writ,” habeas corpus gives citizens the power to get help from courts to keep government and any other institutions that may imprison people in check. In many countries, police and military personnel, for example, may take people and lock them up for months—even years—without charging them, and those imprisoned have no legal channel by which to protest or challenge the imprisonment. The writ of habeas corpus gives jailed suspects the right to ask an appellate judge to set them free or order an end to improper jail conditions, and thereby ensures that people in this country will not be held for long times in prison in violation of their rights. Of course, the right to ask for relief is not the same as the right to get relief; courts are very stingy in granting their writs.
Rules governing writs are complex and changing. Defendants seeking review through writs, especially writs of habeas corpus, must be aware that the rules governing these proceedings are even more complex than the rules governing appeals, and the law in this area changes frequently. For more information on postconviction proceedings generally, see Advanced Criminal Procedure in a Nutshell, by Mark Cammack and Norman Garland (ThomsonWest Publishing, 2001). For information on federal habeas corpus proceedings ask a law librarian to help you locate the federal habeas corpus laws at 28 U.S.C. § 2254 and the reference volume Rules Governing § 2254 Cases in the United States District Courts. For more on habeas proceedings in the U.S. Supreme Court, see Chapter 11, “Extraordinary Writs,” in Supreme Court Practice, by Robert L. Stern et. al. (BNA Books), and on federal habeas proceedings generally, see Federal Habeas Corpus Practice and Procedure, 3d ed., by Randy Hertz and James Liebman (5th Ed. LexisNexis).
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Suspension of the Great Writ During the Civil War, President Lincoln suspended the right of habeas corpus, pursuant to Art. 1, § 9, of the United States Constitution. Generals in the field thus had authority to arrest and keep people in custody whom they considered “threats to public safety”; those arrested no longer had the right they previously enjoyed to challenge the legality of the imprisonment in the court system.
Case Example: Defendant Ed Ippus was convicted of murder. He contends that the only reason he was convicted was that his attorney, Johnny Baily, was incompetent. The basis for Ed’s contentions is that his attorney came to court drunk every day during the trial, thus depriving Ed of his Sixth Amendment right to effective assistance of counsel. Question: Can Ed make such an argument if the trial court’s official record (transcripts of the proceedings) does not reveal that counsel was intoxicated? Answer: Yes, Ed may file a request for a writ of habeas corpus, either by itself or in conjunction with an appeal. If the appellate court is persuaded, it may go beyond the record and consider new evidence, for example, testimony of a juror who smelled alcohol on Baily’s breath in the elevator during court recesses.
18. Can habeas corpus be used for anything other than getting me out of jail? In recent decades, defendants have filed increasing numbers of habeas corpus petitions requesting new and unusual forms of relief. For example, defendants have filed writs (successfully or unsuccessfully) to: • reduce or set bail; • speed an arraignment; • contest being denied a jury trial; • challenge a conviction when not informed of the right to counsel at certain pretrial proceedings; and • contest prison overcrowding, excessive solitary confinement, or other prison conditions.
Custody Doesn’t Only Mean Jail A person doesn’t have to be in jail or prison to use the writ of habeas corpus. A defendant committed to a mental institution, for example, after pleading not guilty by reason of insanity, may also use the writ of habeas corpus to contest an illegal commitment or unlawful conditions.
19. What other writs might be relevant to my case? The writ of prohibition and the writ of mandamus are also sometimes used in criminal cases. These writs, often used together and sometimes interchangeably, are in essence complements of one another. The writ of prohibition is an order from an appellate court to the trial court to stop some
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particular action. A writ of mandamus (also known as a writ of mandate) orders a lower court to do something. The purpose of both writs is in essence to keep lower courts (and others affected) from exceeding their lawful jurisdiction. Case Example: Rodney Prince, facing charges of resisting arrest, objected to the trial judge’s ruling to exclude evidence of the arresting officer’s personnel file. The file noted numerous incidents in which the arresting officer, Noah Kontrol, had been reprimanded for beating suspects. In order to effectively raise his defense that he was forced to resist Kontrol because he threatened to beat him, Prince needs the information in the personnel file.
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Question: Is there anything Prince can do to force the judge to admit the evidence?
Answer: Prince may be able to get the relief he needs by requesting a writ of mandamus from a higher court requiring the judge to admit the evidence. However, the higher court would probably refuse to issue the writ, since this is likely a point that Prince could argue on appeal if he were to be convicted.
20. At what stage of my case can I file for a writ? Because of their similarity to appeals, writs are discussed in this chapter on postconviction proceedings. But parties may take a writ (apply to an appellate court for relief through a writ proceeding) before, during, or after a trial.
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Potential Postconviction Remedies As discussed in this chapter, convicted defendants can take a number of steps to challenge guilty verdicts and/or to correct violations of constitutional rights, including motions, appeals, and writs. The following list illustrates these steps. A defendant who loses at one may go on to the next step, all the way down the list (up the legal chain) in a process that can take many years—especially for serious felonies such as death penalty cases.
This list is merely an illustration of possible postconviction proceedings—some of which may only be used in certain cases. Also, defendants usually must first have unsuccessfully sought relief through the available state remedies before they will be allowed to seek relief in federal courts. For these reasons, and because of the complexities of these proceedings and what is at stake (liberty or life), defendants should consult counsel to determine which remedies are available to them.
List of Writ/Appeals Process • Motion for Acquittal. Requests that the judge decide that there is not enough evidence to convict the defendant. Depending on whether the trial is before a judge or jury and depending on court rules, this motion may be made either after the prosecution presents its evidence or after all the evidence is presented. • Motion for a New Trial. Requests that the trial judge declare a mistrial and grant a new trial.
• Appeal to State Appellate Court. Contends that the trial judge made some legal error. • Petition for Rehearing to State Appeals Court. Requests that appeals court judges change their own decision. • State Supreme Court Appeal. Requests that the highest court in the state review and overturn the decision of the midlevel appeals court. • U.S. Supreme Court Appeal. Requests that the highest court in the nation intervene to correct an error on the part of the state courts that violated the U.S. Constitution. • State Court Habeas Corpus Petition. Requests that the state appeals courts order the jail or prison holding the defendant to release the defendant upon a showing that he is being held in violation of some state law or constitutional right. • Federal Habeas Corpus Petition to District Court. Requests the federal trial court to order the jail or prison holding the defendant to release him because he is being held in violation of the U.S. Constitution. • Appeal of Federal Habeas Corpus Petition to Circuit Court. Requests the midlevel federal court to review the federal trial court’s decision denying the writ. • Appeal of Federal Habeas Corpus Petition to U.S. Supreme Court. Requests the highest court in the land to review the midlevel federal court’s decision denying the writ.
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Chapter 24
How the Criminal Justice System Works: A Walk Through Two Drunk Driving Cases Section I: Questions and Answers About DUI (Driving Under the Influence) …………….502 1. I’ve never heard the term DUI. Are there other terms for what I think of as drunk driving?…………………………………………………………………………………..502 2. What type of behavior describes a DUI offense?…………………………………………….502 3. What are “illegal per se” laws?……………………………………………………………………503 4. I’ve been charged with DUI. What are my chances of getting the prosecutor to agree to change it to a less serious offense?………………………………..504 5. Will a DUI conviction have any effect on my driver’s license or operator’s permit?……………………………………………………………………………………..504 6. What is a field sobriety test?………………………………………………………………………..505 7. What are blood alcohol tests?……………………………………………………………………..505 8. What will happen to me if I refuse to take a blood alcohol test?………………………..506 9. Can I choose which blood alcohol test I want to take?…………………………………….507 10. Is there anything I can do to protect myself if I am asked to take a field sobriety test (FST)?………………………………………………………………………………507 11. What type of evidence is used in a typical DUI trial?………………………………………508 12. Are there some particular things I should do or not do if I’m involved in a DUI-related accident?………………………………………………………………………….508 13. What are my chances in court if I decide to fight a DUI charge?……………………….508 14. What sentences are typically handed down for violating DUI laws?………………….509 15. What type of sentence am I facing if I have a previous DUI conviction on my record?…………………………………………………………………………………………..509 16. What kind of lawyer should I get to fight a DUI charge?………………………………….510 17. I was arrested, and my arraignment is coming up. I still haven’t found a lawyer. What should I do?……………………………………………………………………….511 18. Where can I find out more about DUI laws in my state?………………………………….511 Section II: DUI Case Examples……………………………………………………………………………..511
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his chapter walks through two fairly routine criminal cases in which the defendants are both charged with “DUI,” driving under the influence of alcohol or drugs. The first section gives some background on the law of DUI. The second section shows what happens to the defendants, Shelly Rogers and Julian Daniels, from the time they are arrested until the day they are sentenced by the court. Readers will get a chance to review the police reports, and “listen in” on the interviews the defendants have with their public defender and on the court proceedings they face. Since more than 90% of criminal cases end in plea bargains rather than going to trial, both of these defendants’ cases end in plea bargains. (See Chapter 20 for more on plea bargaining.) The sentences each defendant receives, however, are very different, due among other reasons to the fact that Rogers is a repeat offender whereas this offense is Daniels’s first. (See Chapter 22 for more on sentencing.)
Section I: Questions and Answers About DUI (Driving Under the Influence) This section provides general information about how drunk driving cases are handled in the courts.
1. I’ve never heard the term DUI. Are there other terms for what I think of as drunk driving? States have different terms for DUI. Some of these are: • DUIL (driving under the influence of liquor); • DWI (driving while intoxicated); • OMVI (operating a motor vehicle intoxicated); • OWI (operating while intoxicated); or • OUI (operating under the influence).
2. What type of behavior describes a DUI offense? In many states, a DUI offense consists of the following facts (elements): • driving or operating (sometimes even sitting behind the wheel will suffice) • a motor vehicle (typically a car, but a motor vehicle can also can be a truck, a motorcycle, a golf cart, a tractor, a bicycle, a horse, and possibly even a skateboard). • while under the influence of an intoxicating beverage or drug, or with a certain blood alcohol level over the legal limit (0.08% in many states or 0.01% or above for persons under 21 years of age).
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The Popular Term “Drunk Driving” Misses the Point Notice the difference between the legal term “driving under the influence” and the more familiar term “drunk driving.” The former does not have the word “drunk” in it. This difference can have tremendous legal importance in a criminal case. It means that the prosecution does not have to show the defendant was drunk, but simply that the defendant had enough alcohol in her system to possibly be affected by it when in control of a motor vehicle. It may in some cases be enough, for example, to have the arresting officer testify that the defendant’s breath smelled of alcohol or that the defendant’s eyes were bloodshot (red). The prosecution may offer evidence that the defendant, when questioned by the officer, said that she felt “happy” or “relaxed,” even though that defendant may not have meant at all to imply that she was drunk. Bottom line: What the typical DUI defines as a crime can differ drastically from the image many people have in mind when they hear the word “drunk.”
3. What are “illegal per se” laws? In states that have illegal per se laws, defendants whose blood alcohol levels meet or exceed the legal limit are DUI, regardless of whether the alcohol has in fact affected their behavior or whether they are actually intoxicated. In those states, the only facts (elements) the prosecution has to prove are:
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• the defendant was driving or in physical control of a vehicle (in some places on a public road); and • at the time the defendant was driving or in physical control of the vehicle, the defendant’s blood alcohol level was above the legal limit. (In some states, the accused does not even have to be driving. If a driver has pulled over to get some rest, but is still behind the wheel in a position to drive, the police may make a lawful arrest.)
By contrast, in states that do not have illegal per se laws, the prosecution may use the defendant’s blood alcohol level as evidence of being under the influence. But typically, the prosecution will also have to provide further evidence that either the defendant suffered from symptoms of the influence of alcohol (for instance, bloodshot eyes or smell of alcohol on the breath) or that the defendant’s driving was impaired (e.g., weaving in and out of lanes, or following too closely to the car in front). Even in states that have illegal per se laws, observations of police officers (sometimes called field evidence) are still relevant to proving a DUI case. Also, prosecutors sometimes bring charges under both general driving under the influence laws and per se laws. Then, if the defense pokes holes in one of the approaches (for instance, the testing procedure was faulty or the officer’s observations were not trustworthy), the prosecution will have the other approach to use to secure a conviction.
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4. I’ve been charged with DUI. What are my chances of getting the prosecutor to agree to change it to a less serious offense? Most often, when the evidence of DUI is strong, prosecutors will not agree to reduce this crime to a lesser offense, especially if the DUI is a repeat offense or it involved an accident that resulted in injury or substantial property damage. However, if the evidence is weak or marginal (for instance, the defendant was driving well and tested just above the legal limit), the prosecutor may be willing, in exchange for a plea of guilty, to reduce the charges to an offense such as: • reckless driving (which in most states is a less serious misdemeanor); or • speeding (only an infraction). For more on plea bargaining, look to Chapter 20. Many times, when charges are reduced to a less serious offense, the punishment will be less severe. But even when the sentence for the lesser crime is still tough, it still carries less stigma than a DUI conviction. And though, of course, all efforts should be made to avoid driving under the influence, if a defendant were to be charged in the future with a second offense, the sentence in that future case would likely be much more severe if the first offense had remained a DUI than if the first offense had been reduced to a lesser charge. Many states, for example, give mandatory jail sentences to second-time DUI offenders. (See chart illustrating sentences for DUI offenses accompanying Question 15.)
Use of Plea in a Later Civil Trial Defendants who end up plea bargaining a DUI case in which injuries or property damage occurred usually plead no contest rather than guilty. This is because, in most jurisdictions, a no contest can’t be admitted as evidence in a later civil case, whereas a guilty plea can (as an admission of guilt). (For more on this issue, see Chapter 20.)
5. Will a DUI conviction have any effect on my driver’s license or operator’s permit? In most states, in addition to criminal proceedings, an accused drunk driver also faces administrative proceedings in which the agency in charge of motor vehicles and licenses will try to take the person’s driver’s license away for a lengthy period of time (often six to 12 months). The impact of this on a defendant differs from place to place. In large urban areas where public transportation is convenient, it may be less damaging to have a license taken away than in suburban or rural areas. Also, many states restrict rather than completely suspend licenses so people may drive to and from work—though usually nowhere else. But in states that do suspend licenses for first-time DUI offenses, for those who need their cars to work, the administrative penalty may actually end up being more severe than the judge’s sentence.
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6. What is a field sobriety test? Field sobriety tests, or FSTs, are tests given by police officers to drivers in order to determine if they are driving under the influence of alcohol or drugs. The word “field” means at the scene of the stop (usually the side of the road or highway), as opposed to the station house. The classic FSTs involve the police asking suspected DUI offenders to: • touch their nose; • stand on one foot; • walk a straight line; and • recite the alphabet, forwards or backwards. Also, the police may conduct blood alcohol tests (discussed below) in the field using a portable machine that tests blood alcohol content by analyzing a suspect’s breath. Other blood alcohol tests, such as blood or urine tests, are typically done at the police station or a local hospital.
to blood alcohol content, however. Instead, the laws of those states now define a legal urine alcohol or breath alcohol limit. There are, of course, a number of variables that can affect the overall accuracy of these tests—human factors, such as the rate at which different people absorb alcohol, and technical factors, such as the competence of the person performing the tests and the accuracy of the testing machines.
For more on blood alcohol tests, see Challenging the Breath Test at Trial: A Practical Guide for Defense Attorneys, by Michael S. Taheri, et al. (Dimensions). Nolo also publishes Fight Your Ticket & Win in California (geared to California law) and Beat Your Ticket (a national book) both by David W. Brown. Both include easy-to-understand yet detailed discussion of blood alcohol testing that may assist readers.
7. What are blood alcohol tests? Three commonly-used tests measure the amount of alcohol in a suspect’s body: blood, breath, and urine tests. Blood tests directly measure the amount of alcohol in a suspect’s bloodstream. Breath and urine tests measure essentially the same thing but do so by using a mathematical formula to convert the percentage of alcohol in the breath or urine to the likely corresponding blood alcohol content. Some states no longer require breath percentages to be converted
Get an Independent Blood Test Many devices used by police officers to take a breath test out in the field are equipped to capture two samples. One of these is for the police laboratory to analyze, while the other one is preserved for possible testing in an independent laboratory at the behest of the defendant. It is almost always a good idea for a defendant to arrange for an independent test—unless the status of the defendant’s sobriety isn’t in serious question.
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8. What will happen to me if I refuse to take a blood alcohol test? Some drivers refuse to cooperate with the police when the police attempt to conduct a blood alcohol test. Whether this is wise depends on the situation—see the related case example below on refusal to take a breath test. In many states, the law assumes that as a condition of obtaining a driver’s license, drivers consent to alcohol or drug testing if the police have probable cause to believe they are driving under the influence. Such laws are called “implied consent” laws. Under these laws, drivers do not have the right to refuse to take a blood alcohol test, and failure to cooperate typically results in the loss of driving privileges for a specified period of time, regardless of what happens in the underlying DUI case. Often, a license suspension for failure to take the test is as long as (or longer than) what results from a DUI conviction (to eliminate any incentive not to take the test). In addition, a refusal may increase a defendant’s ultimate jail time if that defendant is convicted. Some DUI defendants have tried to argue a constitutional right to refuse to take the test on the grounds that a mandatory test violates their Fifth Amendment right against self-incrimination. However, as discussed more fully in Chapter 1, the U.S. Supreme Court has decided that the Fifth Amendment only gives people the right to refuse to give evidence that is testimonial
in nature, such as answering questions on the witness stand. Activities like giving blood and performing field sobriety tests are considered nontestimonial, and there is thus no constitutional right to refuse them. And evidence that a defendant refused the test can be admitted against the defendant in court as evidence of a guilty state of mind.
Sometimes a Sound Defense Strategy Dictates Against Taking the Test Almost always, if a driver has never before been convicted of DUI, it makes sense to take the test, even if the defendant is drunk. This is because the penalty for refusal is usually as or more severe than the DUI offense itself. However, for second or subsequent offenses, the decision is not quite so simple. Sometimes, the penalty for a second offense may be so severe that it makes tactical sense to refuse the test— thereby possibly depriving police of the evidence they need to obtain a conviction. As one former public defender confessed, “When arrestees would call me up in the middle of the night to ask whether they should take the BAC test, I had pretty much of a standard routine. I’d first ask if they had in fact been drinking. They’d invariably answer, yeah, but just a couple. I’d then ask if they had ever been busted for DUI before. If not, I told them to take the test. But if they had a prior, I’d tell them to refuse the test. It was the best legal advice I could give under the circumstances.”
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Case Example: George Kramer is arrested on suspicion of drunk driving. When approached by Officer Elaine Costanza, Kramer shows Officer Costanza his driver’s license and politely answers her questions about where he was coming from and where he is heading. When she asks him to submit to a breathalyzer to test his blood alcohol level, however, he flatly refuses. Question: What consequences will Kramer’s refusal have? Answer: If the state has an implied consent law, Kramer will lose his driver’s license for refusing the blood alcohol test. More important, however, if Kramer is ultimately charged with DUI and if the case were to go to trial, a jury might infer guilt from Kramer’s refusal.
9. Can I choose which blood alcohol test I want to take? Under the typical implied consent law, drivers are, in most circumstances, allowed to choose whether to take a blood, breath, or urine test. (In many states, police officers must advise drivers that they have such a choice.) There are differing thoughts on which test a driver should take if given the choice. For example, many in the scientific community have found urine tests to be the most unreliable of the tests, and therefore the most susceptible to challenge in court. The blood test is generally considered the most accurate of the tests and should therefore be preferred by people who are convinced they are under the legal limit.
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10. Is there anything I can do to protect myself if I am asked to take a field sobriety test (FST)? Yes. Just because a driver may not refuse to take a test does not mean that there aren’t steps the driver can take to help his situation. A driver asked to stand on one foot or walk a straight line should pay attention to any road conditions such as a soft shoulder or incline that make performing such tests particularly difficult. If any such conditions exist, a driver charged with DUI should report them as soon as possible to his lawyer. They may later be used to invalidate the tests. People wearing tight shoes or heels may want to ask the police for permission to remove their shoes before trying to stand on one foot or walk a straight line. Drivers suspected of DUI should never, though, reach down to remove their shoes—or make any other movements for that matter, especially with their hands—without first asking permission. Such movements may be interpreted by police as an attempt to grab a weapon.
The Old Backwards Alphabet Trick! Here is a warning for those asked to recite the alphabet backwards. Many people cannot say the alphabet backwards when they are sober. And police officers have been known to use this as a trick to get people to blurt out, “I can’t even do that sober,” thereby admitting they are in fact drunk.
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11. What type of evidence is used in a typical DUI trial? Typically, arresting police officers testify in DUI cases. They will answer the prosecutors’ questions about symptoms they may have noticed, such as a defendant’s driving pattern, bloodshot eyes, and the smell of alcoholic beverages on the breath. Prosecutors may also introduce documents to prove their case, such as photographs of the scene or people involved, and scientific evidence such as doctor’s reports, lab analyses, and blood, breath, or urine test results. The police or arrest report and the officer’s notes, while they may not be introduced as evidence in the case, may nonetheless be used to “refresh the officer’s recollection” if the officer forgets something in the report. (More on admitting evidence and refreshing recollection in Chapter 18.)
12. Are there some particular things I should do or not do if I’m involved in a DUI-related accident? Other than calling for emergency medical assistance (for anyone who is hurt) or filing a report on the accident as may be required by state law, defendants involved in DUIrelated accidents should avoid making any oral or written statements to: • Police officers. As discussed more thoroughly in Chapter 1, suspects do not have to and almost always should not talk to the police; or • Witnesses or victims. Even statements like, “I’m sorry,” can come back to haunt a defendant, because in court they can sound like admissions of wrongdoing.
It may be helpful to get names, addresses, and phone numbers of potential witnesses, especially for drivers who feel they were not at fault, since that information may not be in the police report. Also, as soon as possible after the accident, defendants should write down their version of what happened and note the date and time of the writing (perhaps also mailing a copy of the statement to themselves in order to retain a postmark with the date on it). At the top of any such statement, defendants should write “Confidential: Attorney-Client Privileged,” and they should not show the document to anyone except their attorney (assuming they use one).
13. What are my chances in court if I decide to fight a DUI charge? Not surprisingly, it depends on a lot of factors. In reality, defendants whose blood alcohol tested clearly above the legal limit seldom win at trial, especially if they also failed the field sobriety tests. Where there is no blood test, or where the test results are at or below the limit, there is a much greater chance of successfully fighting the charges. Though many prosecutors’ offices are tough on DUI cases these days, skilled defense lawyers can sometimes get an acquittal by undermining the prosecutor’s case. For instance, some defense lawyers routinely request maintenance and accuracy records for breathalyzer machines, and may mount a successful defense based on a machine’s failure to be properly serviced or calibrated.
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14. What sentences are typically handed down for violating DUI laws? DUI sentences vary greatly depending on factors such as whether it’s a first-time or repeat offense, and whether or not anyone was injured. But, as with most crimes, the typical sentence includes a fine and perhaps a few days of jail time. Convicted defendants may also suffer other consequences. For instance, they may: • lose their driver’s license, at least temporarily; • have to submit to an alcohol- or drugrelated treatment program; and • see their car insurance rates climb astronomically. Additionally, there is a growing movement toward what is known as alternative sentencing. Some of the newer punishments that have been given in DUI cases require that convicted drunk drivers: • have a breath test device (called a certified ignition interlock device) installed in their cars—at their own expense—which prevents the car from being started if alcohol is detected; • display a bumper sticker on their car that states that they’ve been convicted of a DUI; • carry a restricted driver’s license allowing only trips to and from work, for example; and
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• perform community service such as lecturing high school or college students, telling them about the arrest experience and urging them not to drive drunk. (For more on sentencing, see Chapter 22.)
15. What type of sentence am I facing if I have a previous DUI conviction on my record? Repeat offenders are routinely sentenced more severely than first offenders. The following chart, based on possible sentences for drunk driving in California (California Vehicle Code § 23152), shows how states can raise the punishment ante for repeat offenders.
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Possible Sentences for Drunk Driving in California (California Vehicle Code § 23152) First offense Second offense Third offense Fourth offense (or no prior (within 7 (within 7 years): (within 7 years; offense within years): can be filed as 7 years): a felony): 3–5 years 3–5 years 3–5 years 3–5 years of probation of probation of probation of probation $390–$1,000 fine $390–$1,000 fine Mandatory enrollment in alcohol treatment program; and either 48 hours to 6 months in jail, or 90-day driver’s license restriction allowing offender to drive to work and the treatment program
$390–$1,000 fine
$390–$1,000 fine
48 hours to 1 year 18-month treatment 18-month in jail, 18–30-month program if offender treatment program treatment program, hasn’t completed one if offender hasn’t and license restriction completed one allowing offender to 4 months to 1 year drive to work and the jail time; and 3-year 6 months to 1 treatment program revocation of year in jail; and only for the length of driver’s license 4-year revocation the program; or 10 of driver’s license days to 1 year in jail and an 18-month license suspension
16. What kind of lawyer should I get to fight a DUI charge? First off, defendants should always try to hire a lawyer who practices criminal law as opposed to civil law (noncriminal, such as divorce and contract cases). (See Chapter 7 on criminal defense lawyers.) Second, DUI cases often involve unique considerations. Even a criminal lawyer who
specializes in something other than DUIs may not be as effective in representing a defendant’s interests in a DUI charge as one who concentrates on this particular type of case. For example, the top-notch defense lawyer who has gotten five people acquitted of murder charges may be the best in the business, but may not be familiar with the latest research on breathalyzers or blood or urine testing for alcohol.
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Sometimes an Attorney Can’t Help If a first-time DUI defendant is clearly guilty and the state can prove this by a high blood alcohol test and/or field sobriety tests, the defendant may be better off representing himself and pleading guilty than paying a lawyer to accomplish pretty much the same result. The fact is, because of political pressures and heightened awareness of the serious harm that DUI can cause, many DAs refuse to plea bargain DUI cases, and many judges impose a “standard” sentence on first-time offenders, whether or not they are represented by an attorney. Before deciding whether to self-represent or get a lawyer, a DUI defendant would be wise to talk to a lawyer (at least for an hour or so) about how DUI cases are handled in that court and locality.
17. I was arrested, and my arraignment is coming up. I still haven’t found a lawyer. What should I do? At the arraignment, a defendant will be called on to plead (typically) guilty or not guilty. Defendants who do not yet have counsel may act as their own counsel and enter a not guilty plea. However, there are risks to doing this. (See Chapter 10 for more on arraignments.)
18. Where can I find out more about DUI laws in my state? In addition to consulting a lawyer, one may find information about DUI laws from: • a state driving/automobile agency (for instance the Department of Motor
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Vehicles or DMV—in some states called the Department of Public Safety); • a traffic school; • a police department; and • traffic law books, vehicle and penal codes, and other resources typically found in law libraries. (See Chapter 27 on legal research for more information.)
Section II: DUI Case Examples What follows below are case examples involving DUIs that take the defendants from arrest through conviction, in both cases by way of plea bargaining (since that is how the overwhelming majority of these cases end).
Please understand that any particular DUI case may be handled differently depending on: • the state; • the court; • the attorneys; and • the facts.
a. The facts leading up to the arrest of Julian Daniels and Shelly Rogers for DUI On December 1, Shelly Rogers headed home after a party at Keith’s Tavern. Officer Wood had noticed her weaving in and out of her lane and following closely behind the car in front of her. Officer Wood put on the flashing red light, and Rogers pulled over. That same evening, across town, as
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Julian Daniels drove home from Mick’s Pub, he hit a tree in a residential neighborhood. A neighbor heard the crash and phoned the police. Officer Charles drove up a few minutes later, lights flashing. Daniels was standing in front of his car, surveying the damage, when Officer Charles approached him. About the same time as Daniels hit the tree, Rogers rolled down her window after pulling over. She put her hands on the steering wheel and waited for the police officer to approach. When the officer approached the car, the officer smelled the characteristic odor of an alcoholic beverage on Rogers’s breath. The officer asked for Rogers’s driver’s license, then asked her to step out of the car. Rogers politely complied with both requests. Question: Does the officer have probable cause to arrest Rogers?
Answer: Yes. (More on arrests in Chapter 3.) Question: Can the officer also frisk Rogers? Answer: Yes. (More on police frisking and searching in Chapter 2.)
After frisking Rogers, the officer asked where she’d come from and if she’d been drinking. Rogers politely replied that she’d like to answer but felt that she should not say anything before consulting a lawyer. Question: Did Rogers do the right thing by asking to speak with her lawyer? Answer: Yes. (More on not talking to the police in Chapter 1.)
The officer then told Rogers she would need to take a couple of tests and that she didn’t have a right to talk to her lawyer before taking them. The officer asked Rogers to recite the alphabet, to stand on one leg, and to touch her finger to her nose. Rogers
was successfully able to recite the alphabet but stumbled somewhat when she tried standing on one foot. The officer then shined a flashlight in Rogers’s eyes and asked her to look left and right. The officer then gave Rogers a breath test with a PBA (portable breath analyzer). Rogers’s BAC (blood alcohol content) measured .11 (beyond the legal limit of .08 for that state), so she was arrested for DUI (driving under the influence), handcuffed, and put in the back of the squad car. Nothing further was said by either Rogers or the police officer. Question: Did the officer err in not giving Rogers her Miranda warnings after arresting her? Answer: No, the officer didn’t ask Rogers any questions, so he wasn’t required to warn her. (More on Miranda warnings in Chapter 1.)
Meanwhile, across town, Daniels was given the same field sobriety tests. Though Daniels passed all three, the officer still suspected DUI because Daniels had red, watery eyes and had hit a tree. Consequently, the officer arrested Daniels and brought him to the station for a blood test. Daniels’s blood alcohol content measured 0.09% (just above the legal limit of 0.08%).
b. The booking of Daniels and Rogers Both Daniels and Rogers were brought to the Main County Station, and both were booked upon arrival. They were photographed, their possessions except for clothes and wristwatches were taken and inventoried (see below), and they were put into jail cells to wait.
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Question: Was it right to take their possessions as part of the booking process? Answer: Yes. (More on booking in Chapter 5.)
Their respective booking records read in part as follows: Suspect: Julian Daniels Inventory: Brown leather wallet, containing identification, photos, and $25; 4-door white Toyota Corolla (license ______) impounded. Suspect: Shelly Rogers Inventory: Black leather purse containing wallet (with credit card and driver’s license, hair brush, nail file, and $62); red Corvette (license _________) impounded.
c. Preparation of the police reports Later that night, the arresting officers completed their paperwork documenting the arrests, including arrest and investigation reports, a statement for the Department of Motor Vehicles, and additional pages with notes and comments. Question: Do police typically make written arrest reports in cases like this?
Answer: Yes. (See Chapter 14 for more on arrest reports.)
d. The preparation of the criminal complaint The officers’ reports were delivered to the district attorney’s intake desk at the courthouse. Both defendants’ reports ended up on the desk of D.A. Ira Davidson. Davidson glanced at the police reports and filled in the appropriate blanks on the
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criminal complaint forms as he had done with nearly 150 criminal complaints that day. Question: Is it unusual for a D.A. to be so quick about filing a complaint?
Answer: No, especially in large urban areas. (More on charging in Chapter 6.)
e. Phone calls and bail A couple of hours later, after handling other matters and running computer checks to see if the suspects had criminal records, a police officer went to their respective cells and told Daniels that his bail had been set at $500 and Rogers that hers had been set at $3,500 (Rogers, it turned out, had been convicted of a DUI the year before). Question: Do police usually set bail? Answer: Sometimes; other times judges set bail amounts. (See Chapter 5 for more on bail.)
Both were allowed to make phone calls. Daniels reached his mother, who came down and paid the $500. He left on bail and was given a summons to appear in court for an arraignment the following week. Rogers wasn’t as successful. She was too embarrassed to call her parents, and none of the friends she phoned were home, so she spent the night in jail. (More on bail in Chapter 5.)
f. Rogers goes to court for her arraignment The next morning, Rogers was taken to court for an arraignment. Question: Are people usually arraigned that quickly?
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Answer: If they are in custody, yes. They usually have to be arraigned within at most 48 hours after arrest, excluding weekends and holidays. (More on arraignment in Chapter 10.) Rogers spent two hours in the courthouse lockup waiting for Judge Diana Benjamin. Question: Where is the lockup? Answer: Usually in an area of the courthouse that is segregated from the courtrooms and public areas, for example, in the basement or on a separate floor. (See Chapter 9 for a tour of a typical courthouse and courtroom.)
When the case was finally called, a bailiff led Rogers into the courtroom. Still handcuffed, Rogers stood before the judge and waited. Judge Benjamin was looking over some papers and talking with her clerk. Rogers stood waiting. She heard the judge ask her clerk for another cup of coffee, then look down and say, “Rogers?” “That’s me.” Question: Should Rogers have said, “That’s me, your Honor?” Answer: Adding “your Honor” would have made Rogers’s reply more respectful and certainly couldn’t have hurt. (See Chapter 10 for tips on how to speak to a judge.) “Do you have counsel?” Question: Does Rogers have the right to counsel at an arraignment? Answer: Yes. (See Chapter 10 on arraignments.) “What?” “Do you have a lawyer?” “No, your Honor.” “Do you want a lawyer?” “Yeah. I guess so.”
“Have you been given a chance to call a lawyer?” “They let me make a phone call last night, but no one was home. Umm. But I don’t think I have the money to hire a lawyer.” Question: Will Rogers get a public defender if she can’t afford a lawyer? Answer: Yes, or some other court-appointed attorney. (See Chapter 7 on the right to appointed counsel for those who cannot afford a private lawyer.) “Let’s see. You can talk to the public defender if you want, and we’ll see you back here this afternoon. Or you can plead now if you intend to plead guilty.” Question: Should Rogers make a plea bargain? Answer: It depends on a number of details. Here, Rogers hasn’t even yet met with a lawyer, though, so she should certainly do that before even considering a plea bargain. (More on plea bargains in Chapter 20.) “Yes, I’d like a public defender.”
The judge called to her clerk, “Get somebody from the P.D.’s office down here.” And to Shelly the judge said, “Okay, we’ll get you a lawyer and see you back here later.”
g. Rogers gets a public defender The bailiff returned her to the lockup. A few hours later, a young man approached her cell. “Shelly Rogers?” “Yes” she said. “I’m Andrew Duncan. I’m from the public defender’s office. How are you?” “Tired, bored. Sick of this place.” “Well, unfortunately, I don’t think I can
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get you out today. I talked to the D.A. The D.A. said for a second offense, you gotta do 48 hours—no way around it. But if you plead guilty this afternoon, then you can get out tomorrow with probation. You’ll have to pay a fine and do another alcohol program. I see you did a three-month one last time you were arrested. But that’s it.”
Question: Would Rogers be sentenced to jail time if she went to trial and lost? Answer: Yes. If that’s the mandatory state law for a second DUI, she would get the time either way—and possibly even more if she went to trial and lost. (See Chapter 20 on plea bargaining, and Chapter 22 on sentencing.)
“Yeah. Listen, what if I want to fight it?” “Well. You could fight it, but it doesn’t look good.” He read from the reports, “Blood alcohol—.11, failed field sobriety tests …” “I did the alphabet, didn’t I?” Shelly interrupted. “Um. Yeah, but you couldn’t stand on one foot, your eyes were bloodshot, they smelled some type of alcoholic beverage on your breath. Look, we can talk more in a little bit. I have to go back into court now to meet another client. Your case will be called after lunch. I’ll come talk to you again before then. In the meantime, think it over. I’ll tell you this much, if you go to trial and lose, on a second DUI a judge might give you a lot more than 48 hours in jail. You can get up to a year in jail, plus the probation, plus fines and an alcohol program. You might want to cut your losses.”
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Andrew Duncan left Shelly Rogers and ran back upstairs to court to meet with another client.
h. Rogers considers a plea bargain suggested by her public defender After lunch, Shelly Rogers was hauled back into court. Standing before the judge, still handcuffed, Shelly wondered what was going on. Duncan hadn’t been back to see her. Duncan ran in, put his briefcase down, pulled out a file folder and leaned in to whisper to Shelly. “I was in another courtroom on another case and couldn’t come talk to you. Sorry. I want you to know, though, I spoke to the D.A. If you do the 18-month alcohol rehab program and plead guilty now, they’ll let you out tomorrow—as soon as the 48 hours are done. You’ll be on probation for three years. And you’ll do some community service instead of the fines; they do that where people can’t afford to pay them. Okay?” “Yeah. I guess that’s the best I can do.” “Well, you do risk a lot more if you fight and lose.” “Okay.”
i. The court takes Rogers’s guilty plea under the plea bargain “All right, just say yes to all the questions the judge asks you and we’ll be out of here in three minutes,” Andrew tells his client. “All right people, we’re back on the record, let’s go,” the judge called as she sat down at the bench. “What’s next?” she asked her clerk.
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“Rogers is back—continued from this morning.” “Okay, Ms. Rogers. Let’s see, you now have counsel,” said the judge. “Yes.” “And how do you now plead to the charges of second offense driving under the influence?” “Say ‘guilty,’” Andrew Duncan whispered to Rogers. “Guilty,” Rogers said. “Counsel, have you reached a settlement?” D.A.: “Yes, your Honor; 18-month program, three years probation, $500 fine which we’ll convert to community service hours (because the defendant is indigent), plus 48 hours—if she pleads guilty now.” “Ms. Rogers, do you know that by pleading guilty you lose the right to a jury trial?” “Yes.” “Do you give up that right?” “Yes.” “Do you understand what giving up that right means?” “Yes.” “Do you know that you are waiving the right to cross-examine your accusers?” “Yes.” “Do you know that you are waiving your privilege against self-incrimination?” Question: Is that the Fifth Amendment? Answer: Yes. “Yes.” “Did anyone force you into accepting this settlement?” “No.” “Are you pleading guilty because you in fact were driving under the influence?”
“Yes.”
Question: If Shelly Rogers wants to take the plea bargain, why does the judge need to ask her so many questions? Answer: Because a judge is required by law to ensure that defendants understand what rights they are giving up by pleading guilty and that they are pleading guilty voluntarily. (See Chapter 20 on plea bargaining.)
j. The judge sentences Rogers as prescribed in the plea bargain “Ms. Rogers, you are hereby sentenced to be incarcerated for a term of 48 hours. You shall enroll by no later than 14 days from today in a court-approved 18-month alcohol treatment program. You shall be on probation for a period of three years, and you’ll have to do 50 hours of community service. Do you understand?” Question: Will Rogers have to report to a probation officer? Answer: Yes. (More on probation, community service, and other punishments in Chapter 22, on sentencing.) “Yes, your Honor.” “Bailiff, take her back to lockup.” To Shelly the judge said, “You may go home tomorrow. Counsel will explain the paperwork you have to complete. I don’t want to see you back here, Ms. Rogers. I hope you take the alcohol program more seriously this time around.”
When Shelly was released the next day, she was given a packet of information from the public defender’s office. It included the name and phone number of her probation officer and a list of the court-approved treatment programs. (More on probation in Chapter 22.)
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k. Free on bail, Daniels meets his public defender before the arraignment and discusses a possible plea bargain Daniels, meanwhile, had been free on bail. A week after Shelly Rogers was sentenced, Andrew Duncan, the same public defender, met with Julian Daniels in the hallway outside the courtroom just before Daniels’s arraignment. “Hi. Daniels, right?” “Yes.” “My name is Andrew Duncan, I’m your lawyer. I spoke with you on the phone a few days ago?” “Yes. Yes, thank you.” “You’ve never been arrested before, right?” “No, never.” “What happened? Says here you hit a tree?” “Yeah. I was looking down to get a new tape, and next thing I knew I’d plowed into this tree.” “Okay, you were .09 …. I think I can get you a decent deal, probably three years probation, three-month alcohol program, and some community service if you plead today.” “Look. I don’t need an alcohol program. I had a couple of beers with my girlfriend. That’s it. I’m not an alcoholic. What’s community service? Is that picking up trash like those guys in orange vests I see out on the roadway?” “Well, that’s one kind of community service, yes. But, we could arrange for you to work in a library or school, or some volunteer program like that.” “How many hours of community service are we talking?” “They said 200 hours.”
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“I can’t do that. I’m in school full-time and I have a job. Man, I don’t want this on my record; I’m applying to grad schools. You know that cop didn’t even read me my rights.” “Did the cop question you?” “Not really. I mean he asked if could say the alphabet and touch my nose, and told me to stand on one foot. Then he put me in the car.” “Well, technically, they don’t have to read you your rights unless they question you.” “Oh?” “Yup. Listen, your girlfriend was with you the whole time at the bar?” “Yeah.” “She can testify that you only had, how many beers?” “Two. Two beers. She was with me the whole time. That’s all I had.” “And you’re in college where?” “State University. I’m graduating this spring.” “Okay, let me talk to the D.A. There’s pretty much no way to get around doing an alcohol program on a DUI—even a first-timer. Our only chance is if she reduces the charge to reckless driving. Come into the courtroom with me, but you sit in the back and wait. Your case will be called in the next hour or two.” “Do your best, Mr. Duncan,” Daniels called. “Thanks.” “Sure.”
l. Daniels’s lawyer proposes a plea bargain to the prosecutor In the courtroom, Duncan found the assistant D.A. handling the case, Colleen O’Larky, sitting toward the front in the audience section of the courtroom waiting
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for her next case. He slid in to the seat next to her. “Larky,” Duncan whispered. “Yeah,” she replied quietly, putting a folder in front of her mouth so the judge wouldn’t see she was talking. “I gotta talk to you about the Daniels case, set for this afternoon. Your case.” “I’m listening.” “Have you looked at it? .09—just over the limit, no priors, good kid—finishing college this spring, wants to go to grad school. What can we do here?” “You know my boss. No forgiveness on DUIs. He spoke at a MADD (Mothers Against Drunk Driving) conference last week. My hands are tied.” “Look, make an exception here. He’s a nice kid. He was just looking down to change a tape and hit a tree. Dumb luck. No one was hurt. Knock it down to reckless. It’s bad enough this is going to go on his record—he’s clean. He passed all the FSTs, says right here on the police report.” Just then the judge called “State v. Molly Patricks.” The D.A. jumped up and whispered, “That’s my case, Duncan. Hang on. I’ll think about it and get back to you.” “I’m waiting right here,” Duncan replied, and the D.A. went up before the judge to handle a different case. Ten minutes later she
was back. “All right, Duncan. But only for you. Reckless. Two years probation, 150 hours community service—best offer. And he pleads today, or no deal.” “Thanks, Larky. I’ll talk to him. Sounds good.”
Andrew Duncan quietly slipped out and went to the back of the courtroom to find Daniels. He told Daniels the deal the prosecutor had offered, and Daniels agreed to plead.
m. Daniels pleads no contest Daniels’s case was called some time later. And after asking Daniels the same questions Judge Benjamin asked Shelly Rogers earlier (and getting all the same answers from Daniels), the judge accepted Daniels’s plea of no contest. Question: What is a no contest plea? Answer: In most respects the same as a guilty plea, but it likely cannot be used as an admission of guilt against Daniels in a later civil suit should the owner of the tree he hit decide to sue for property damage. (More on no contest pleas in Chapter 20.) Daniels was convicted of reckless driving and sentenced as agreed. ■
Chapter 25
Juvenile Courts and Procedures Section I: A Brief History of U.S. Juvenile Courts……………………………………………………521 1. When were the first juvenile courts established in the United States?…………………521 2. How were children dealt with before juvenile courts were established?……………..521 3. What are the goals of juvenile courts?…………………………………………………………..522 Section II: Juvenile Court Jurisdiction……………………………………………………………………522 4. Do juvenile courts only have jurisdiction over cases in which juveniles are accused of committing crimes?…………………………………………………523 5. Do the same procedures apply to dependency, status offense, and juvenile delinquency cases?………………………………………………………………….523 Section III: Deciding Whether to File Charges………………………………………………………..525 6. How do most minors come to the attention of the police?……………………………….525 7. Does every minor who is stopped by the police end up in juvenile court?………….525 8. What happens once a case has been referred to juvenile court?………………………..525 9. What factors do intake officers normally consider when deciding whether to file formal charges?……………………………………………………………………526 10. Does the filing of a formal petition mean that the case has to go to trial or end by plea bargain?……………………………………………………………………….527 Section IV: The Right to Counsel and Other Constitutional Rights…………………………….527 11. Do minors have the same constitutional rights as adults?…………………………………527 12. Do the police need probable cause to search and arrest a minor?……………………..528 13. Do minors taken into custody have a right to bail?………………………………………….528 14. Are minors ever locked up with adult offenders?…………………………………………….529 15. Do minors have the right to legal representation in juvenile delinquency cases?……………………………………………………………………………………529 16. Does a minor who cannot afford a lawyer have the right to a court-appointed attorney?…………………………………………………………………………..529 17. Can minors who are locked up make a phone call for help?…………………………….529 18. How and when are lawyers appointed for minors?…………………………………………530 19. Will a minor who comes from a wealthy family still be eligible for an appointed attorney?………………………………………………………………………….530
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20. Are parents allowed to participate in meetings between their child and the child’s lawyer?………………………………………………………………………………531 21. Other than the right to counsel, what other constitutional rights do juveniles have?…………………………………………………………………………………….531 22. Is there a right to a jury trial in juvenile courts?………………………………………………531 23. What is the burden of proof in juvenile cases?……………………………………………….531 Section V: Trying Juveniles as Adults…………………………………………………………………….532 24. What does it mean to be tried as an adult?…………………………………………………….532 25. Why might a case be transferred from juvenile to adult court?………………………….532 26. At what age can a minor’s case be transferred to adult court and the minor tried as an adult?……………………………………………………………………………..532 27. What procedure does a juvenile court judge follow when deciding whether to transfer a case to adult court?………………………………………………………532 28. What are automatic transfer laws?……………………………………………………………….533 29. What are reverse transfer hearings?………………………………………………………………533 30. What arguments can a minor’s lawyer use to try to persuade a judge not to transfer a juvenile case to adult court?…………………………………………533 31. When is it normally in a minor’s best interests to be tried as a juvenile rather than as an adult?………………………………………………………………………………534 32. Can it ever be in a minor’s best interests to be tried as an adult rather than as a juvenile?…………………………………………………………………………………….535 Section VI: Sentencing (Disposition) Options…………………………………………………………535 33. Can juvenile court judges incarcerate minors?……………………………………………….535 34. Other than confinement, what other dispositions are common in juvenile court?………………………………………………………………………………………536 35. What are blended sentences?………………………………………………………………………539 36. How do juvenile court judges decide what disposition to give?………………………..539 37. Can a minor’s juvenile court record affect a later sentence in adult criminal court?………………………………………………………………………………………….539 38. Can a minor challenge or alter a juvenile court judge’s disposition order?………….540 Section VII: Sealing Juvenile Court Records……………………………………………………………540 39. What is a juvenile court record?………………………………………………………………….540 40. What does it mean to seal a juvenile court record?…………………………………………540 41. Are juvenile court records sealed automatically when a person becomes an adult?…………………………………………………………………………………….541 42. Is it necessary to hire an attorney to have a record sealed?……………………………….541 43. When is a juvenile offender eligible to seal a juvenile court record?………………….541 44. Can sealed records ever come back to haunt a juvenile offender?……………………..542
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his chapter provides an overview of the juvenile justice process. Juvenile justice is an umbrella term for the special procedures set up by every state to deal with young people whose cases qualify for handling in juvenile court. Juvenile courts handle most of the cases in which young people (usually called “juveniles” or “minors”) are accused of committing crimes. Of course, the treatment of juveniles differs from state to state, judge to judge, cop to cop. And if differences of opinion generally exist about getting tough on crime, the conflicting opinions on how to deal with minors accused of crimes are greater still. The goal of this chapter is to help anyone involved with juvenile courts to understand their general policies and procedures, particularly where these differ from those found in adult criminal courts. Hopefully, the chapter will make juvenile court seem a little less foreign, a little less intimidating, a little easier to understand and deal with.
Section I: A Brief History of U.S. Juvenile Courts This section sketches the background of today’s juvenile justice system.
1. When were the first juvenile courts established in the United States? The first juvenile court was established in 1899. However, it wasn’t until 1945 that all states had juvenile courts.
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2. How were children dealt with before juvenile courts were established? In the mostly rural society of the nineteenth century, parents, churches, and communities punished children who committed crimes. Children were typically disciplined by force, sometimes brutally. The urbanization that followed the industrial revolution in the last half of the nineteenth century posed particular problems for children. Many were subject to harsh conditions, including extensive poverty and child labor. At that time, children who got into trouble (whether by committing a crime or by being the victims of abuse or neglect) were often put to work or sent away to relatives. So-called “reform schools,” the precursors of modern juvenile halls, were also set up. The ostensible purpose of these schools was to change or reform children, in part by giving them skills and training. In fact, these facilities were often little more than warehouse-type jails, some with deplorable conditions, where most of the learning that occurred was how to become a better criminal. Around the turn of the twentieth century, many social leaders came to believe that reform schools were not working. They also began to understand children not simply as mini-adults, but as people with special needs who should be treated differently than adults. Consequently, the movement for a separate juvenile justice system began.
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Too Young to Punish? Based on principles developed by English common law, most states consider children under age seven to be legally incapable of forming the “mens rea” (guilty state of mind; see Chapter 12) necessary to be morally to blame and therefore subject to criminal punishment. As a result, minors under age seven are usually excused because of their age if they commit acts that would be crimes if committed by adults. Instead, the parents of these children may have to pay restitution (compensation) to the victims. In addition, a court may determine that a child’s parents are unfit, remove the child from the parents’ custody, and place the child with a relative, foster family, or treatment facility. Children between the ages of seven and 14 often occupy a middle ground. Using what legal rules often refer to as a rebuttable presumption, minors in this age range are often presumed to be incapable of forming a guilty mind. However, if a prosecutor can show that a particular child in this age range is capable of forming and did form a guilty mind, the child can be criminally punished. Once minors reach age 14 and above, most states regard them as fully capable of forming a guilty mind. Therefore, minors older than 14 are usually held accountable for the crimes they commit, either in juvenile or adult court.
3. What are the goals of juvenile courts? As with adults, juvenile court goals are a mix of rehabilitation, punishment, and community safety. Juvenile courts
have traditionally considered children less dangerous and more amenable to rehabilitation than adults. As a result, minors who commit crimes often receive counseling and stay at home in lieu of going to jail. However, citing statistics suggesting that minors increasingly commit more and worse crimes at younger ages, advocates of punishment and community safety want juvenile courts to get young criminals off the streets.
Juvenile Court Paternalism The roots of paternalism are deep in the juvenile justice system. In part they stem from an English concept called parens patriae (Latin for “parent of the country”). Under this concept, minors really belong to the government; parents are temporary custodians. Juvenile and family courts, as the arm of the government, are therefore ultimately responsible for minors. Programs in the juvenile justice system often reflect a paternalistic attitude towards minors. For example, judges may follow “tough love” or “Scared Straight” programs out of the belief that juveniles benefit from a strict but caring approach.
Section II: Juvenile Court Jurisdiction This section briefly looks at juvenile court “jurisdiction,” which refers to a juvenile court’s power to hear cases.
Chapter 25: Juvenile Courts and Procedures
4. Do juvenile courts only have jurisdiction over cases in which juveniles are accused of committing crimes? No. In addition to having jurisdiction over cases involving crimes committed by minors (often called “juvenile delinquency” cases), juvenile courts in most states also have jurisdiction over: • Cases involving minors who are allegedly abused or neglected by their parents or guardians. These are often called “juvenile dependency” cases. Abused or neglected minors may be removed from parental homes and placed with relatives or foster parents. At a minimum, parents are often ordered to undergo counseling as a condition of keeping or regaining custody. A juvenile court may also declare parents permanently unfit and approve a minor’s adoption. • Cases involving minors who commit status offenses. A status offense is a type of violation that only a juvenile can commit. For example, a 14-year-old who skips school (is truant) for no valid reason commits a status offense if the law requires all children under the age of 16 to attend school. An adult could not violate this law.
5. Do the same procedures apply to dependency, status offense, and juvenile delinquency cases? No. Even though juvenile courts may have jurisdiction over all three types of cases, different procedures typically apply to each.
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This chapter focuses on juvenile delinquency cases, since they are the juvenile court counterpart of adult criminal proceedings. However, keep in mind the following points about status offenses: • Juvenile court personnel may use the term juvenile delinquency as an umbrella term that covers both juvenile crimes and status offenses; • Minors who commit status offenses can sometimes end up in custody in juvenile hall. For example, if a minor violates a judge’s order to attend school, the judge may send the minor to juvenile hall for disobeying the court order; and • Minors charged with status offenses do not have a constitutional right to counsel. Some states do, however, provide attorneys to minors charged with status offenses. Case Example: Officer Steve Roberts sees Jack Aranda, who appears to be a teenage boy, shopping at the local mall on a Wednesday morning. When Officer Roberts stops Jack and asks him how old he is, Jack says, “I’m 15.” Jack then tells Officer Roberts, “I wanted to shop before the mall gets crowded.” Officer Roberts then takes Jack into custody. Question: Did Officer Roberts properly arrest Jack? Answer: Yes. Laws typically require minors to be in school on weekdays. Because Jack appeared to be of school age, the officer had a right to question him. When Jack’s responses indicated that he was truant, the officer had a right to arrest him. See Section III for what the officer might do with Jack.
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Juvenile Justice Lingo Juvenile courts tend to have their own jargon, in part to portray a gentler image than adult criminal courts. Some of the unique terms that you may encounter if you become involved in juvenile court proceedings are as follows:
Fact-finding hearing: Along with
Adjudication: A juvenile court trial, similar
Involved: The juvenile court equivalent of
to an adult trial.
Admission of Petition: The juvenile court counterpart to a guilty plea.
Camp: A locked facility for juvenile offenders. Camps often house minors who will be locked up for many weeks or months, while juvenile halls tend to be temporary holding facilities. States may have various types of camps differing in degrees of security, rigidity, and facilities. Many camps have school facilities.
Custody order: An arrest warrant. Dependency court: A branch of the juvenile court that hears cases involving minors who have allegedly been neglected or abused by parents or guardians.
Detention order: An order that a minor be placed in custody.
Disposition: A juvenile court sentence or other final order, which juvenile court regulars often shorten to “dispo.”
Dispositional hearing: A sentencing h earing.
adjudication, a juvenile court term for a trial.
Infant: A minor, in most states a person under the age of 18. (Few teenagers appreciate being referred to as infants!) guilty.
Juvenile Hall: A jail (or temporary holding facility) for minors.
Petition: The juvenile court equivalent of a criminal complaint, which charges a child with a violation.
Referee: A judicial officer, usually a lawyer appointed by a court’s presiding judge, who performs many of a judge’s functions but who has not been formally elected or appointed as a judge.
Respondent: A juvenile court defendant. Suitable placement: A court order removing a juvenile from the juvenile’s parental home and placing the juvenile into a foster home, a group home, a treatment facility, a camp, or some other type of placement.
Sustained (Not Sustained): The equivalent of a verdict, a juvenile court finding that the charge in a petition is (or is not) true.
Ward of the court: A minor who is under the jurisdiction of the juvenile court.
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Section III: Deciding Whether to File Charges This section summarizes the typical processes by which cases are either weeded out of or formally filed in juvenile courts.
6. How do most minors come to the attention of the police? Unlike adults, juvenile offenders often come to police attention through reports of parents and school officials. When the police decide to file formal charges against a suspect who is a minor, they normally refer the case to a prosecutor or probation officer attached to a juvenile court.
7. Does every minor who is stopped by the police end up in juvenile court? No; a variety of scenarios are possible. A police officer may: • Detain and warn the minor against further violations, and then let him go free. (In juvenile court and police lingo, the minor was “counselled and released”); • Detain and warn the minor against further violations, but hold him until his parent or guardian comes for him; • Place the minor in custody and refer the case to the juvenile court.
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8. What happens once a case has been referred to juvenile court? The following is an overview of how juvenile cases typically flow through the system: • A prosecutor or a juvenile court intake officer (often a probation officer) decides whether to: 1. dismiss the case; 2. handle the case informally; or 3. petition the case (file formal charges). In some localities, the probation officer makes only a preliminary assessment of whether to file formal charges, and leaves the final decision to a prosecutor. • A decision to proceed informally often results in the minor’s having to appear before a probation officer or a judge. The minor may receive a stern lecture, and may also be required to attend counseling sessions or afterschool classes, repay the victim for damaged property or pay a fine, perform community service work, or go on probation. If the intake officer suspects that a minor taken into custody has been abused or neglected, proceedings to remove her from the custody of parents or guardians may also be started. • If the decision is to proceed formally, the intake officer or prosecutor files a petition and the case is placed on the juvenile court’s calendar. (In large cities, juvenile courts may handle over 300 cases each day.)
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• The minor is arraigned (formally charged) before a juvenile court judge or referee. At this point, the juvenile court either takes jurisdiction of the case or waives (transfers) the case to adult criminal court. (See Section V, below, for more on transfers to adult court.) • If the case remains in juvenile court, the minor either enters into a plea arrangement or faces trial (often called an adjudication). • If, after trial, the juvenile court judge sustains the petition (concludes that the charges are true), the judge decides on an appropriate sentence (usually referred to as a disposition). (See Section VI below.) • Postdisposition hearings may occur. For example, a judge’s disposition order may require a minor to appear in court periodically so that the judge can monitor the minor’s behavior.
9. What factors do intake officers normally consider when deciding whether to file formal charges? The official factors that an intake officer is likely to consider include: • The severity of the offense. A serious crime is more likely to result in the filing of a petition than a less serious crime; • The minor’s age. Petitions are more likely to be filed in cases involving older than younger children; • The minor’s past record. Formal charges are more likely when a minor has had previous juvenile court involvement;
• The strength of the evidence that a minor committed a crime; • The minor’s gender. Formal charges are more likely to be filed against boys than girls; • The minor’s social history. Petitions are more likely to be filed when children have a history of problems at home or at school; and • The parent’s or guardian’s apparent ability to control the minor. The greater the lack of parental control over the minor, the more likely the intake officer is to file a petition. In addition to these official reasons, the filing decisions of many intake officers cannot help but be swayed—off the record— by a number of subjective factors. These may include: • The minor’s attitude. Formal proceedings are less likely when a child shows remorse for a bad deed; • The minor’s manner of dress. If the minor dresses well, is groomed neatly, and is polite, intake personnel are more likely to handle the case informally than if the minor dresses sloppily or in a way that shows disrespect for the juvenile justice system or obvious gang involvement; • Whether the minor has family or community support; • Whether the minor has an attorney. Disposing of a case informally may be less likely when a child has a lawyer. (See Section IV for more on lawyer involvement in juvenile cases); and
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• Ethnicity and socioeconomic status. Statistics suggest (though few, if any, intake officers would admit, on or off the record) that the ethnicity and socioeconomic status of minors sometimes affects how aggressively their cases are handled.
10. Does the filing of a formal petition mean that the case has to go to trial or end by plea bargain? No. Juvenile court judges often informally divert cases. In other words, working with other community service agencies (schools, social services, and child welfare departments) a judge may retain jurisdiction over a case while the minor undergoes a recommended program. For example, the minor (and/or the minor’s parents) may have to participate in counseling. Or, the minor may have to pay restitution, repair damaged property, perform community service work, or attend special classes. If the minor fails to complete the recommended program, formal charges may be reinstated. (For information on diversion in adult cases, see Chapter 6.) Juveniles in some cities may also be able to participate in another form of diversion, called “teen court.” (See “A Sampling of Innovative Juvenile Justice Programs” in Section VI.)
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A Statistical Look at One Year in State Juvenile Courts In 2003, approximately 1.6 million juvenile delinquency cases were filed in the U.S., and of those, about 57% (928,849) were formally processed. About 36% of the formally-charged cases were for property offenses and about 12% involved drug offenses; around 64% of the formally charged juveniles were adjudicated delinquent, and about 63% of those were placed on probation. The information comes from a database maintained by the National Center for Juvenile Justice, which is a research division of the National Council of Juvenile and Family Court Judges. The database currently contains juvenile court statistics from 19852003 and is available at http://ojjdp.ncjrs. org/ojstabb/ezajcs.
Section IV: The Right to Counsel and Other Constitutional Rights This section demonstrates how in recent decades juvenile courts’ procedures have become less informal and more like adult criminal courts. However, important differences remain.
11. Do minors have the same constitutional rights as adults? No. Until the 1960s, juvenile courts offered few of the rights guaranteed to adult criminal defendants. Up until then, juvenile court judges dispensed justice pretty much as they
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saw fit. Outside criticism of their sometimes arbitrary approach was rare. Juvenile court proceedings were closed to the public. Parents could not and did not object. Defense lawyers were not often present, and minors had virtually no rights. Since the 1960s, the U.S. Supreme Court has issued several rulings that have afforded minors at least some of the rights enjoyed by adults.
12. Do the police need probable cause to search and arrest a minor? Yes. However, public officers in quasiparental relationships with minors (for example, school officials) do not need probable cause to justify the temporary detention and search of a minor. A reasonable suspicion that a child has committed a crime is all that many public officials need to detain and search the minor or the minor’s property, such as a school locker. (See Chapter 2 for more on constitutional protections against unreasonable searches and seizures.)
13. Do minors taken into custody have a right to bail? No. Minors do not have the bail option that most arrested adults have. (See Chapter 5 for more on bail.) Minors who are taken into custody by the police are usually either released to the custody of a parent or guardian, or detained (locked up) until they can be taken before a juvenile court judge for arraignment. (This period may be called “preadjudication detention.”) Unfortunately,
as is the case with some adults, a juvenile who is arrested on a Friday may have to remain in custody until the following Monday (or Tuesday if the Monday happens to be a holiday), when court is in session.
Advantages and Risks of Preadjudication Release Police officers and other intake officers are often willing to release arrested minors to their parents’ custody pending a court date. Preadjudication release is usually good for both minor and family. It gives the minor a chance to get cleaned up and prepare for the hearing, and perhaps consult with an attorney. Also, some studies have shown that detained minors consistently receive harsher dispositions. In some instances, parents may be justifiably reluctant to accept custody of their arrested children. Some state laws make parents liable in certain circumstances for their children’s acts of juvenile delinquency. (For example, parents of a minor who steals may have to make restitution to the victim.) Parents who fear that their child may commit further crimes, especially if they fear that the child is violent and beyond their control, may be hesitant to agree to preadjudication release. Parents in such situations should try to determine the extent of their potential liability and inquire (perhaps of a public defender or a private defense lawyer if resources permit) how they can keep their child safely detained with as little damage as possible to the child’s chances for receiving rehabilitative treatment.
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14. Are minors ever locked up with adult offenders?
17. Can minors who are locked up make a phone call for help?
Yes, despite the fact that laws in most states require that minors be kept in separate juvenile halls or jail facilities. Studies all across the country routinely show that minors are often jailed with adults. The reasons for this vary. Police officers sometimes mistake older minors for adults, and some minors lie to the police about their age. In other instances, juvenile facilities don’t exist, are overcrowded, or are located at an inconvenient distance.
Often, yes. Minors who are not quickly released from custody can exercise their right to counsel by politely requesting permission to make a phone call to secure legal representation. If the family situation allows, the minor should probably call a parent or guardian, who can in turn contact a lawyer. Otherwise, the minor may contact a lawyer directly or, if the minor and the minor’s family are without adequate funds, ask to speak with a public defender.
15. Do minors have the right to legal representation in juvenile delinquency cases? Yes. In In re Gault, (U.S. Sup. Ct. 1967), the Supreme Court said, “The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.”
16. Does a minor who cannot afford a lawyer have the right to a courtappointed attorney? Yes. Minors who can’t afford a lawyer (which is almost always the case) are entitled to have one provided by the state. (More on court-appointed lawyers in Chapter 7.)
“I Won’t Talk Until You Call My Parents” Police officers generally give Miranda warnings to arrestees, both adults and juveniles. These warnings advise arrestees of their right to remain silent and consult with a lawyer. (See Chapter 1.) Minors arrested for serious crimes should never talk to the police before consulting either a lawyer or a parent or guardian. Minors can exercise their Miranda rights by asking to speak either with a lawyer or with a parent or guardian before talking to the police. If the police ignore the request and continue questioning the minor, nothing the minor says is admissible as evidence of the minor’s guilt if the case goes to trial.
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18. How and when are lawyers appointed for minors? In some jurisdictions, public defenders are automatically appointed for minors. In other jurisdictions, minors have to formally request appointed counsel at arraignment.
19. Will a minor who comes from a wealthy family still be eligible for an appointed attorney? Yes. The right to counsel attaches to the minor, not to the minor’s family. While some counties may try to collect payment for legal services from the minor’s family, it is doubtful that the family could be legally compelled to pay.
Is It Helpful for Minors to Have Lawyers in Juvenile Cases? Almost always, yes. And the attorney should normally be one who specializes in or is at least familiar with juvenile court procedures. Research indicates that effective assistance of counsel can greatly affect a case’s outcome. For example, attorneys often can help by: • getting cases diverted, or handled informally, so the juvenile is not incarcerated and has no juvenile court record; • arranging for a juvenile’s release from preadjudication detention; • keeping juveniles from being tried as adults; and • putting together and convincing a judge to agree to a creative and compassionate disposition. Nevertheless, some juvenile court professionals say that a lawyer’s involvement often prolongs cases, turning cases which a prosecutor might be willing to handle informally into a formal adversarial
proceeding. Some probation officers, intake personnel, judges, and other juvenile court staff admit that they are hostile to defense attorneys because they think that the attorneys slow down already overcrowded calendars. Some judges threaten to (and some actually do) give harsher treatment to juveniles represented by lawyers. Since the variables are so great, there are no meaningful guidelines regarding when a lawyer should be used. However, juvenile court regulars, such as a deputy public defender assigned to the court, may have an informed opinion on whether the minor is likely to be benefit from legal representation. Also, the more serious the crime and the worse the minor’s record, the more important it is to have legal representation. On the other hand, an “A” student with no prior record who is accused of putting graffiti on a school wall may decide that a quick, informal, and satisfactory disposition is more likely if no lawyer is involved.
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20. Are parents allowed to participate in meetings between their child and the child’s lawyer? Sometimes. Most defense lawyers will initially want to meet with a minor alone, because the minor is the client even if the parents are paying for the lawyer’s services. In fact, in order to preserve lawyer-client confidentiality (discussed in Chapter 8), it’s important that minors speak privately with their lawyers. However, when the time comes to make important decisions, it is common for lawyers to include parents in the discussion, assuming the minor consents. Parents may certainly—and should—tell lawyers to keep the parents informed about what is happening. Parents should also ask if they can be of any assistance. For example, parents may be able to provide relevant family history and contact people familiar with a child (for example, teachers, clergy people, or employers) who might agree to testify or write letters on the child’s behalf.
21. Other than the right to counsel, what other constitutional rights do juveniles have? The Gault case (U.S. Sup. Ct. 1967) also decided that in addition to the right to counsel, juveniles charged with crimes have: • the right to notice of the charges; • the right to confront and cross-examine witnesses; and • the privilege against self-incrimination (they cannot be compelled to testify). (For more on these rights, see Chapter 17.)
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22. Is there a right to a jury trial in juvenile courts? Generally, no. Only about ten states allow jury trials in juvenile delinquency cases. Even in those states, the right to a jury trial may be confined to specific types of cases, such as those involving minors who have prior records and are facing serious charges. States that do not allow jury trials at all in juvenile court include California (Welfare and Institutions Code § 702.3), New Jersey (Statute 2a:4a-40), and Pennsylvania (Title 42, § 6336). Massachusetts (Chapter 119, § 55-A) and Michigan (Statute 712A.17) afford juveniles a general right to jury trials. Arkansas (Statute 9-27-331), Colorado (Statute 19-2-804), and Illinois (Chapter 705, § 405/5-35) provide jury trials to juveniles only in limited types of cases.
23. What is the burden of proof in juvenile cases? To convict an adult of a crime, the government must prove guilt beyond a reasonable doubt. (See Chapter 17.) In re Winship (U.S. Sup. Ct. 1970) extended this rule to juvenile court cases in which a minor could be incarcerated if adjudicated a delinquent. However, to sustain charges that will not result in a minor’s incarceration, the government only has to prove by a preponderance of the evidence that the minor engaged in illegal conduct.
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Section V: Trying Juveniles as Adults
26. At what age can a minor’s case be transferred to adult court and the minor tried as an adult?
This section provides an overview of the procedures by which juvenile courts can transfer cases to adult criminal courts, where juveniles are tried as adults.
The age at which a minor may be tried as an adult varies from state to state. In many states, a minor can be tried as an adult only if the minor has reached a minimum age, often 16. In other states, 13-year-olds may be tried as adults. In still other states, a child of any age may be tried as an adult depending on the nature of the crime. Based on a perception of increased lawlessness at younger ages, the current trend is for states to lower the age at which a minor may be tried as an adult.
24. What does it mean to be tried as an adult? Juveniles who are tried as adults are subject to the harsher punishment options of adult criminal courts. For example, juveniles who are tried as adults and convicted can receive sentences that juvenile court judges lack the power to impose (for example, life sentences) and will normally be locked up in adult jails and prisons rather than juvenile treatment facilities. On the other hand, adult criminal courts afford rights that some juvenile courts do not, such as the right to a jury trial.
25. Why might a case be transferred from juvenile to adult court? A juvenile court judge may transfer a case to adult court when, in the judge’s opinion, the minor is not amenable to rehabilitation as a juvenile. Typically, juveniles are transferred to adult court when they are charged with serious offenses and/or have a lengthy juvenile court record. Juvenile court judges usually also take into account the minor’s age (older minors are more likely to be transferred to adult courts than younger minors) and mental and physical abilities.
27. What procedure does a juvenile court judge follow when deciding whether to transfer a case to adult court? While juvenile court judges can themselves begin transfer proceedings, transfer proceedings are normally initiated at the request of a government prosecutor. Following the prosecutor’s request, a juvenile court judge hears evidence relating to the minor’s amenability—or lack thereof—to juvenile court services. A juvenile’s right to a hearing before a case can be transferred to adult court was established by Kent v. U.S. (U.S. Sup. Ct. 1966). Minors are entitled to counsel at transfer hearings. To convince a juvenile court judge to transfer a case to adult court, the prosecutor normally has to offer evidence showing probable cause to believe that the minor committed the charged offense. (This aspect
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of the hearing is similar to a preliminary hearing, discussed in Chapter 16.) If the judge concludes that probable cause exists, the judge may then hear additional evidence concerning the minor’s general background, prior juvenile court record, and amenability to treatment. Then, taking into account the seriousness of the offense, the judge will decide whether to transfer the case to adult court. After transfer to adult court, a case typically goes back to square one, with an adult court arraignment. (See Chapter 10.)
Other Names for Transfer Hearings The hearing in which a judge considers whether to transfer a case to adult court has a variety of names. The hearing may be called a “waiver” hearing, because the juvenile court waives (gives up) jurisdiction by transferring a case to adult court. It may also be called a “fitness” hearing, since the judge decides whether a minor is fit to be tried as an adult. A final common name is a “certification” hearing, because a judge certifies that a minor is fit to be tried as an adult.
28. What are automatic transfer laws? Some states have laws mandating that juveniles be tried as adults in certain types of cases. The typical automatic transfer law is activated when a minor has reached a certain age (often 16) and is charged with a serious and violent offense such as robbery, rape, or murder.
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29. What are reverse transfer hearings? Juveniles have the right to request a juvenile court transfer hearing even when a case is subject to an automatic transfer law. However, because the law has already automatically transferred the case, a minor is put in the position of trying to convince a juvenile court judge to take back jurisdiction. Thus, the hearing is commonly called a “reverse waiver” or “reverse transfer” hearing.
30. What arguments can a minor’s lawyer use to try to persuade a judge not to transfer a juvenile case to adult court? A recent child advocacy report identified the following arguments that attorneys can make at transfer or reverse transfer hearings: • Although an offense is serious, the minor is still a child who would benefit from the services available in the juvenile system. Factors indicating that a minor is likely to benefit from juvenile court services include: 1. the minor has close family attachments; 2. older friends, teachers, counselors, employers, etc., have submitted statements indicating their belief that a minor has good potential; 3. the minor was not thinking as an adult at the time of the offense; 4. the minor has good moral judgment and expressed remorse for the improper behavior;
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5. other minors in similar situations have benefitted from juvenile court services; and 6. it is realistic to expect that a minor’s delinquent behavior will improve from services meeting the minor’s needs. • The minor has not in the past had sufficient opportunity to be rehabilitated. • The minor is likely to suffer physical or emotional harm in the adult system. • The juvenile court system provides sufficient safeguards so that the community can be protected while the minor undergoes treatment as a juvenile. (Source: “A Call for Justice: An Assessment of Access to Counsel and Quality of Counsel in Delinquency Proceedings,” by the ABA Juvenile Justice Center, the Juvenile Law Center, and the Youth Law Center (1995), p. 35.)
How Can You Help an Accused Minor? Family members, friends, employers, teachers, and others who want to help a minor can appear in court or write letters demonstrating their support. Supporters should be prepared to give concrete examples of the minor’s behavior indicating that the minor is basically a good person who has potential and who should be given an opportunity to turn things around. Supporters can submit school records showing that the minor has attended school regularly. Parents may want to secure and submit to the court a psychological assessment of the minor. The fact that the minor has learning difficulties, for example, can be very relevant and persuasive evidence supporting treatment rather than punishment. Parents may be able to research and suggest to the court possible alternative treatment programs (such as wilderness programs or military schools) instead of a detention camp or juvenile hall. Finally, parents or other supporters can examine the prosecution’s file for inaccuracies, particularly concerning the minor’s previous juvenile court records.
31. When is it normally in a minor’s best interests to be tried as a juvenile rather than as an adult? Common advantages of being tried in juvenile rather than adult court include: • Juvenile court records are easier to seal than adult court records. (More on sealing juvenile records in Section VII, below.);
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• Juvenile court proceedings are civil, and a finding that a minor committed an offense usually carry less social stigma than an adult criminal record; • Juvenile courts dispositions are often less severe than adult criminal sentences, and are more likely to be tailored to the minor’s personal situation. For example, rather than simply imposing a fine or a jail term, a juvenile court judge may impose a curfew and require a minor to attend school and attend regular counseling directed towards minors; • Even when incarceration is ordered, a juvenile court judge is less likely to impose a lengthy sentence than an adult court judge. (Juvenile court judges cannot impose the most severe punishments, such as life imprisonment); and • Minors incarcerated by juvenile courts serve their sentences in juvenile facilities rather than adult prisons.
32. Can it ever be in a minor’s best interests to be tried as an adult rather than as a juvenile? Yes. As mentioned, a frequently cited potential benefit of being tried as an adult is that in an adult court a minor can request a jury trial. Jury trials are not available in most juvenile courts. And, depending on factors such as the minor’s age and the seriousness of the offense, a jury may be more sympathetic to the minor than a judge would be. In busy urban areas with crowded court dockets and overcrowded jails, it is also possible that the minor’s case will be disposed of more quickly and a minor will
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receive a lighter sentence in adult than in juvenile court.
Section VI: Sentencing (Disposition) Options This section briefly reviews the wide range of dispositional options often available to juvenile court judges.
33. Can juvenile court judges incarcerate minors? Yes. After sustaining a petition (finding that a juvenile committed a crime), juvenile court judges can order juveniles confined in a variety of placements. From the least to the most restrictive alternatives, some common confinement options include: • Home confinement (house arrest), in which a minor has to remain at home at designated times, often after a curfew during the week and on weekends; • Suitable placement. A judge may order a juvenile to live with a relative or in a group or foster home; • Juvenile jails (often called juvenile hall or juvenile detention facilities). Similar to adult jails, juvenile jails are designed for short-term incarceration; • “Shock probation” (also called a “split” or “intermittent” sentence), in which an offender is incarcerated for three to six months before going on probation. The place of incarceration may be a “boot camp,” in which minor offenders are subject to strict discipline and physical labor. The taste of jail hopefully shocks minors into improved behavior;
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• Secured facilities ranging from minimum to maximum security. (A juvenile detention camp is a form of secure facility.) Juveniles may be detained in secured facilities for months or even years. Typically, juveniles have to work and attend school and counseling sessions while in a secured facility; and • Adult jails. Juvenile judges may have the authority to sentence certain offenders to serve their sentences in adult facilities.
• Probation, which allows minors to remain free if they fulfill specified conditions. For example, regular attendance at counseling sessions is a typical condition of probation. A minor who violates a condition of probation may be incarcerated. The sample Minute Order Form below suggests the wide variety of probation conditions that a juvenile court judge may impose.
You Owe Me a Day in Jail 34. Other than confinement, what other dispositions are common in juvenile court? Juvenile judges can impose a variety of nonincarceration dispositions, either alone or in combination with each other. The most common nonincarceration options are: • A verbal warning or reprimand; • Payment of a fine to the court and/or restitution to the victim; • Counseling, either individual or group therapy; • Community service; • Electronic monitoring, which uses wristanklet transmitters to verify a minor’s location; and
One recent juvenile court proceeding is suggestive of how judges can tailor probation conditions to a minor offender’s personal situation. Following the sustaining of a petition, a judge placed the offender on probation and told the young offender that he would serve one day in juvenile hall for every unexcused school absence and for every unexcused tardy.
“Scared Straight” Scared Straight was a New Jersey program started in the late 1970s. The idea was to frighten juvenile offenders into reforming their behavior by confronting them with adult prison inmates who would curse at the minors and tell them of the horrors of prison life. The program was discontinued when research indicated that it had little effect on the rate at which minors committed crimes.
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Sample Minute Order Form
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A Sampling of Innovative Juvenile Justice Programs Teen Courts. Teen courts are the product of collaborative efforts of schools, juvenile courts, and probation departments. In teen courts, first-time teenaged offenders agree to be “tried” by a jury of their peers, other teenagers. Usually, the minor gives up the right to be represented by counsel. The jurors hear evidence, often presented by a probation officer. The juvenile being tried may admit to the charges or present additional evidence. Though teen courts cannot fine or imprison offenders, their sentences can carry serious consequences. With the consent of a minor’s parents, teen court sentences can impose community service, counseling, drug or alcohol rehab programs, curfews, and/or restrictions on who the minor can associate with. Teen courts may also impose more creative sanctions, such as requiring a minor to scrub graffiti off a school wall, attend tutoring, write an essay about the minor’s improper behavior, or write a letter apologizing to the victim. After a teen court trial, the offender may have to report to the probation department to verify compliance with the sanctions.
L.A.’s Juvenile Traffic Court. Despite its name, the Juvenile Traffic Court has jurisdiction over a variety of cases, including those in which minors are charged with status offenses (truancy and curfew violations) and minor drug or traffic offenses. The Juvenile
Traffic Court follows a “fast track” process designed to dispose of cases within 45 days instead of the usual juvenile court average of nine months. In this informal style of court, lawyers are not permitted and judges have great leeway in tailoring dispositions to individual offenders. For example, a judge dismissed the case of one minor who brought to court a certificate showing that she attended school every day, and waived the fine for the student who completed summer school with at least a “C” average. Denver’s Project New Pride. This is a community-based program aimed at hardcore offenders. Minors get tutoring help for school assignments, job counseling, and training. For example, project staff help minors fill out job applications and even start small businesses (for example, providing lawn and garden services) to help defray program costs. The Boston Offender Project. Targeting violent offenders, the project features decreasing levels of incarceration and case supervisors with low caseloads who provide intensive psychological and employment counseling. The Allegheny Academy. Minor offenders in this program live at home but attend the academy after school and on weekends. At the academy, minors receive meals, job training, and individual and group counseling.
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35. What are blended sentences? Judges in some jurisdictions have the power to sentence juveniles to serve time both in adult and juvenile facilities. For example, after a case has been transferred from juvenile to adult court, the adult court judge may sentence a minor to serve time in a juvenile facility until age 18 and then complete the sentence in an adult prison. Similarly, a judge may have the authority to sentence a minor to serve time in an adult prison, but suspend that sentence while the minor serves time in a juvenile facility.
36. How do juvenile court judges decide what disposition to give? Like their adult court counterparts, juvenile court judges take a number of factors into account when deciding on an appropriate disposition. The seriousness of an offense and an offender’s prior record are always of major importance. Juvenile court judges tend to rely heavily on the recommendations of probation officers. A juvenile court judge’s particular philosophy concerning the proper role of the juvenile court may also influence the disposition. For example, a judge who views the court’s primary function as rehabilitative may resist imposing incarceration despite a locality’s get-toughon-crime attitude. As this last factor suggests, dispositions are often a product of a host of subjective and unpredictable factors. For example, a minor appearing in court at the end of a day after the judge has processed numerous cases, each more depressing than the last, may be treated more harshly than someone whose case happened to be first on the
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calendar. A disposition may depend on whether a probation officer or judge views the minor as rebellious, confrontational, or remorseful. Even a minor’s demeanor and manner of dress may be critical. A minor whose clothes demonstrate respect for the court and who answers questions politely may be given a less harsh disposition than a minor who shows up in gang-type clothing and who rudely mumbles responses. While some of these factors may be unfair, they are a necessary byproduct of a system in which human beings have to decide what is in a minor’s and society’s best interests.
37. Can a minor’s juvenile court record affect a later sentence in adult criminal court? Yes. Statutes in many states permit (and sometimes require) judges to impose harsher sentences on violators with prior convictions. Often, even though juvenile court proceedings are civil, these laws provide that juvenile court dispositions, especially for serious violations, count as prior convictions. Some prior juvenile offenses may even count as strikes under a state’s “three strikes” law. (For further discussion of three strikes laws, see Chapter 22, Section I.) Case Example: As an adult, Anne Apolis is convicted of attempted murder. Six years earlier, Anne had been declared a ward of the court after a juvenile court adjudication of carjacking. A statute in Anne’s state provides for double the mandatory minimum sentence for convicted felons who have previously been convicted of specified
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crimes, including carjacking. Question: Might Anne’s juvenile court adjudication affect the length of her sentence on the attempted murder conviction? Answer: Yes. Because Anne has a juvenile prior for carjacking, she will probably be sentenced to double the mandatory minimum. In most states, juvenile court adjudications have the same effect as adult convictions under sentence enhancement laws.
38. Can a minor challenge or alter a juvenile court judge’s disposition order? Yes. Like adults, juvenile offenders have the right to file appeals and writs. (See Chapter 23 for more on appeals and writs.) Juveniles can also ask a juvenile court judge to modify a disposition based on changed circumstances. For example, a minor who was placed outside the family home in part because a stepparent was a bad influence may ask the judge to return home when the stepparent moves away. Or, a relative whose home can serve as a suitable placement may be located after a disposition order has been made. Or, a minor may ask for a change if a placement is unsafe or the minor is not receiving the treatment the judge anticipated at the time of disposition. Juvenile court judges usually have broad power to change their orders, so postdisposition changes are always possible.
Section VII: Sealing Juvenile Court Records This section outlines basic procedures for sealing (expunging) juvenile court records. Sealing gives former offenders a chance to avoid being hampered in adulthood by their juvenile misbehavior.
39. What is a juvenile court record? A juvenile court record consists of the documents relating to a juvenile court case. If a minor is arrested and the case is closed without charges being filed, the record will be short, perhaps no more than a record of an arrest. If a minor is adjudicated a ward of the court for violating the law and given an in-custody disposition, the record may be much longer.
40. What does it mean to seal a juvenile court record? To seal or expunge a juvenile court record means to treat the juvenile court proceedings as though they never took place. Allowing juveniles to keep their records sealed helps people who’ve cleaned up their acts from forever being haunted by things they did when they were young.
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Example: Some years ago, Rick was adjudicated a ward of the juvenile court for committing a residential burglary. Rick later went to court and had the record sealed. Then, when Rick applied for a job, the employer asked, “As a minor or an adult, have you ever been convicted of a criminal offense?” Rick legally can and should answer “No,” since his juvenile court record was sealed.
41. Are juvenile court records sealed automatically when a person becomes an adult? No. Normally, a person who meets a state’s eligibility requirements for record-sealing has to file a petition with the juvenile court clerk, often in the county where the juvenile adjudication occurred, formally asking the court to issue a written order sealing the record. However, some states do have limited automatic sealing provisions. (See Calif. Welfare & Institutions Code § 826-a, providing that unless a judge decides that a former juvenile court offender has continued to violate the law, juvenile court records are destroyed automatically on an offender’s 38th birthday.)
42. Is it necessary to hire an attorney to have a record sealed? No. An experienced attorney may be able to quickly complete the necessary paperwork, but will certainly charge a fee
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to do so. Many states have preprinted fillin-the-blanks petition forms, available at a court clerk’s office. These forms ordinarily contain instructions for completing and filing the petition. In some states, a county probation officer also has the authority to file paperwork on a petitioner’s behalf.
43. When is a juvenile offender eligible to seal a juvenile court record? Eligibility rules vary from state to state. Typically, eligibility for record-sealing depends on such factors as: • Age. Usually, a petitioner must be an adult (18 years old) to be eligible for record-sealing. • How much time has passed since an offense was committed or since the juvenile court proceedings ended. Often, even if a juvenile offender has reached adulthood, the offender has to wait a specified period of time (perhaps five years) from the date of an offense or from the termination of juvenile court proceedings. • Seriousness of the juvenile court offense. Misdemeanor records may be more readily sealed than felony records. • Conduct following the juvenile court proceedings. A juvenile offender with later criminal violations may be ineligible to have juvenile court records sealed.
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44. Can sealed records ever come back to haunt a juvenile offender? Yes. Record-sealing rewrites history for many, but not all, purposes. For example: • A sealed record of a juvenile court adjudication may be used to increase the severity of a sentence following a later conviction. (See Question 37, above); • An application for a job in law enforcement may trigger a police agency’s access to sealed records; and • An application for auto insurance may allow the insurance company to have access to sealed records pertaining to automobile-related offenses.
Reference Box: Further Reading on Juvenile Courts and Procedures • Trial Manual for Defense Attorneys in Juvenile Court, by Randy Hertz, et al. (ALI/ABA), a treatise written for lawyers providing comprehensive instruction on the lawyer’s role in juvenile delinquency proceedings. • Representing the Child Client, by Mark Soler, et al. (Matthew Bender), another lawyer’s treatise that provides comprehensive analysis of the laws affecting accused children. • The Juvenile Justice System Law and Process, 2d ed. by Mary Clement (Butterworth-Heinemann), a textbook that gives a clear and detailed introduction to the civil and criminal aspects of the juvenile justice system. • No Matter How Loud I Shout, by Edward Humes (Simon & Schuster), a compelling and personalized account of a year in the life of one California juvenile court judge.
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Prisoners’ Rights Section I: Prisons and Prisoners’ Rights…………………………………………………………………..545 1. Do prisoners have the right to decent living conditions? …………………………………545 2. What factors have judges considered when deciding whether prison conditions are adequate?……………………………………………………………………………545 3. Does the right to equal protection of the laws mean that all prisoners must be treated alike?………………………………………………………………………………………..546 4. Can prisoners observe religious holidays, meet with clergy, and wear ritual clothing?………………………………………………………………………………………….547 5. Do prisoners have the right to medical treatment? …………………………………………547 6. May prison officials withhold food to punish prisoners?…………………………………..548 7. Can prison guards use physical force against inmates? . ………………………………….548 8. Do prisons have to protect inmates from attacks by other prisoners?………………….548 9. Do prisoners have the right to outdoor exercise?…………………………………………….549 10. May prison officials search p risoners’ cells?…………………………………………………..549 11. Are prison officials allowed to seize a prisoner’s property during a “shakedown” search?…………………………………………………………………………………550 12. Can prison officials conduct strip searches and body cavity searches of inmates?…..550 13. Can family members and friends visit prisoners?…………………………………………….550 14. Do prisoners have a right to p rivacy during prison visits?…………………………………551 15. Do prisoners have the right to make phone calls?…………………………………………..551 16. May prisoners be transferred from one prison facility to a nother?………………………551 17. Do prisoners have the right to send and receive mail?…………………………………….552 18. May prison officials open and read mail to and from a prisoner’s lawyer? …………552 19. May prison officials place limits on inmates’ mail privileges?……………………………552 20. Are disabled prisoners protected under the Americans with Disabilities Act?………553 21. May prisoners get married while in prison?……………………………………………………553 22. Can prisoners be required to work while in prison, and, if so, are they paid? ……..553 23. Is a prison the same thing as a jail?………………………………………………………………554 24. Can prisoners choose the type of work they are required to do in prison? ………….554 25. Can prisoners lose professional or business licenses as a result of imprisonment?…..554 26. Can prisoners vote while in prison or after they are released? ………………………….554
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27. Do prisoners lose custody of their children when they are imprisoned?……………..555 28. Must a parent who is paying child support continue to make payments while in prison?………………………………………………………………………………………..555 Section II: Legal Resources for Prisoners and Their Families………………………………………555 29. Do prisoners have any recourse when prison officials seek to r evoke their privileges for v iolating prison rules? …………………………………………………………….555 30. How can prisoners use the courts to enforce their legal rights?…………………………556 31. Does the right of access to the courts include the right to c ounsel?……………………556 32. What kind of rules apply to p risoners’ lawsuits?……………………………………………..557 33. Are prisoners supposed to have access to legal materials? ………………………………558 Section III: Parole……………………………………………………………………………………………….560 34. What are typical parole conditions?……………………………………………………………..560 35. What is the difference between probation and parole?…………………………………….560 36. How long can I remain on parole?……………………………………………………………….560 37. Can a parolee relocate?……………………………………………………………………………..561 38. Do judges decide when to release prisoners on parole?…………………………………..561 39. What factors do parole boards consider when deciding whether to parole a prisoner? ……………………………………………………………………………………………..561 40. Can victims affect parole d ecisions?……………………………………………………………..561 41. What happens if a parolee v iolates a condition of parole? ………………………………561 42. Do parolees have a right to a ppointed counsel at parole revocation hearings?…….562 Section IV: Pardons……………………………………………………………………………………………..562 43. What is “temporary release” and how does it differ from parole?………………………..562 44. Who has the power to grant p ardons? . ………………………………………………………..562 45. What standards must g overnors or the president follow in d eciding whether or not to grant pardons?…………………………………………………………………562 46. Is “sealing” a criminal record the same as a pardon?……………………………………….562 47. Can DNA tests show that someone who was convicted many years ago is actually innocent?………………………………………………………………………………….563
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rison inmates lose many of their civil rights, including many of the rights enjoyed by nonconvicted criminal defendants that we described earlier in this book. But the Eighth Amendment to the U.S. Constitution, which prohibits “cruel and unusual punishment,” as well as many other federal and state laws, ensures that prisoners do not lose all of their rights just because they are behind bars. This chapter discusses important prisoners’ rights, focusing on federal rights that are common to prisoners nationwide. This chapter also includes a section on resources for prisoners and their families. Finally, the chapter explains the basics of parole (early release from prison under supervision) and pardons (grants of executive clemency).
Section I: Prisons and Prisoners’ Rights Prisoners retain rights to basic freedoms such as freedom of speech, religion, and equal protection of the laws (meaning a right not to be treated differently than other prisoners just because of race, sex, or religion). Prisoners also have the right to basic—albeit minimum—living standards. However, these rights may be curtailed to some extent because courts must balance them against a prison’s need for safety, order, and security. Courts tend to uphold prison rules that limit prisoners’ exercise of constitutional rights so long as the prison rules are reasonably related to legitimate prison needs. This section examines the balance that courts have struck between prisoners’ rights and prison regulations in a variety of common situations.
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1. Do prisoners have the right to decent living conditions? The Eighth Amendment requires that state and federal prison systems provide at least “the minimal civilized measure of life’s necessities” (Rhodes v. Chapman, U.S. Sup. Ct. 1981). Because this rule is so vague, prisons can be deficient in a variety of ways yet still meet minimum constitutional standards. To prove that prison conditions are cruel and unusual, prisoners must show that they were forced to live with seriously hazardous or oppressive conditions (an objective test that looks at the conditions themselves) and that prison officials deliberately or maliciously caused the conditions (a subjective test that considers the intent of the officials responsible for them) (Wilson v. Seiter, U.S. Sup. Ct. 1991).
2. What factors have judges considered when deciding whether prison conditions are adequate? When determining the adequacy of prison conditions, judges consider both the conditions themselves and how prison officials have subjected inmates to them. Examples of inadequate prison conditions include: • overcrowding; • lack of supplies necessary for personal hygiene, such as soap and water; • unsanitary food preparation; • nutritionally inadequate food; • lack of access to medical treatment and poor medical care; • failure to protect prisoners’ physical safety;
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• substandard shelter, such as the lack of adequate heating, cooling, clothing, and blankets; • unsafe building conditions, such as exposed wiring and vermin infestation; • inadequate facilities for prisoners put in solitary confinement; • lack of opportunities for prisoners to get physical exercise; and • inadequate opportunities for prisoners to access the courts, such as a prison law library that has few books or is unavailable to prisoners in solitary confinement. A condition may be improper even though it affects only a small group of prisoners. For example, prison officials may violate both the First (free exercise of religion) and the Eighth (freedom from cruel and unusual punishment) Amendments if they do not provide pork-free meals to prisoners whose religions forbid eating pork, even if the non-pork-eaters make up a minority of the population.
How Many Americans Are Behind Bars? The Bureau of Justice Statistics provides information on many aspects of the criminal justice system. Its figures reveal that as of the beginning of 2003, a little over two million people were incarcerated in federal and state prisons and jails. This represented an increase of 3.7% over the number of inmates as of a year earlier. About three times as many people were incarcerated as of the beginning of 2003 than had been incarcerated in 1980. The number of inmates varies greatly according to gender and race. Of the more than two million inmates, about 97,000 were women. For black males, there were 3,437 inmates per 100,000 black males in the country. For Hispanic males, there were 1,176 inmates per 100,000 Hispanic males in the country. For white males, there were 450 inmates per 100,000 white males in the country. However, because the number of white males in the U.S. is so much greater than the number of black males, about an equal number of whites and blacks have served time in jail or prison. In addition to those who were incarcer ated as of the start of 2003, close to four million people were on probation across the country. Another 753,000 people were on parole.
3. Does the right to equal protection of the laws mean that all prisoners must be treated alike? No. Prison officials have wide discretion to manage prison life. For example, many prisons classify inmates as maximum,
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medium, or minimum security risks, and treat them accordingly. As a result, minimum security risk prisoners are usually housed in a section of a prison with fewer restrictions on their movement and greater work opportunities compared to maximum security risk prisoners. Factors that prison officials consider when assessing a prisoner’s security classification include: • the length and severity of the sentence; • previous behavior in other jails or prisons; • medical needs; • gang affiliations (or the existence of known enemies within the prison population); • work skills; • proximity to outside family (especially where a relative is ill or aged); • likelihood of rehabilitation; and • whether a prisoner poses a threat to other inmates, guards, or himself. Prisoners who are unhappy with their confinement status may seek a review of this process, especially if the prisoner can show proof of specific factors that warrant a lower risk classification, such as work skills or medical needs. But it’s most effective to present such documentation when a prisoner is first confined. Prison officials will be less inclined to change their minds once they make a designation, and courts often refuse to second-guess prison officials on a process they view as a prison management function.
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4. Can prisoners observe religious holidays, meet with clergy, and wear ritual clothing? Yes. The First Amendment guarantees free exercise of religion, and that right cannot be denied to prisoners absent valid, rational prison management concerns.
5. Do prisoners have the right to medical treatment? Yes. To deliberately or intentionally withhold necessary medical treatment constitutes cruel and unusual punishment under the Eighth Amendment (Estelle v. Gamble, U.S. Sup. Ct. 1976). State and federal rules such as the federal Correctional Officers Health and Safety Act of 1998 also set forth efforts that prisons must make to prevent and detect diseases. Case Example: Joseph Dabney, a state prison inmate, complained to prison guards several times about chest pains and shortness of breath during outdoor exercise. Joseph saw several prison doctors, none of whom gave Joseph any treatment other than telling him to take it easy. Joseph subsequently suffered a massive heart attack. Question: Does Joseph have a claim for the unconstitutional denial of medical care? Answer: Yes. Prison officials (both guards and doctors) were aware of symptoms commonly associated with serious heart trouble yet failed to provide treatment. Joseph could recover money damages because the prison was deliberately indifferent to his medical needs. A judge might also order “injunctive relief,” requiring the prison to upgrade its medical procedures.
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6. May prison officials withhold food to punish prisoners? No. Prisons must give enough food to provide sustenance and nourishment to inmates. However, food restrictions of various types may be a permissible form of punishment, especially if they are temporary. For example, a prison may withhold hot foods or provide a prisoner with only one meal a day. In an extreme case, even a temporary diet of bread and water may be permissible. Case Example: Gene Bogz, a federal prisoner, found mouse parts in the chicken dinner he was served one night. Question: Does Gene have a valid claim that his Eighth Amendment rights were violated based on being served unsanitary food? Answer: Gene’s claim will not win if the court finds this was an isolated incident, or that prison officials had taken steps to fix the problem (such as hiring exterminators to rid the facility of mice). Gene might have a valid legal claim if the problem were ongoing, if there were other incidents of unclean food, or the court determined that the prison officials knew about the mice and had done nothing to get rid of them.
7. Can prison guards use physical force against inmates? Prison staff violate the Eighth Amendment when they use force “maliciously and sadistically for the very purpose of causing harm,” but they are permitted to use force in a good faith effort to maintain or restore discipline (Hudson v. McMillan, U.S. Sup.
Ct. 1992). Generally, this means an inmate must show that the force was not used for a legitimate disciplinary purpose, or that the degree of force the officials used was completely out of proportion to the needs of the situation. Case Example: Andy and Kopkit, prison guards, fire tear gas and plastic bullets into the prison yard after a disturbance in which three inmates from one gang attacked an inmate from a rival gang. Andy and Kopkit then forcibly herd all the prisoners on the yard into their cells. Arvin Waites, an older inmate who was not involved in the disturbance, slipped and fell while being herded back to his cell, suffering a painful sprained ankle. Question: Does Arvin have a good chance at winning a personal injury lawsuit against Andy, Kopkit, and the prison? Answer: No. Under the circumstances, the guards’ actions were reasonably necessary to quell a disturbance. Especially in such an emergency situation, Arvin would have to prove that the guards acted maliciously (that is, spitefully or wickedly), an extremely difficult task.
8. Do prisons have to protect inmates from attacks by other prisoners? Yes. But to have a valid legal claim against a prison for failing to protect him from attack, the victimized prisoner has to prove that prison staff was aware that the prisoner had been threatened by a particular inmate and that the staff was deliberately indifferent to the prisoner’s safety.
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Prison Assault and Rape Widely acknowledged to be a serious problem for both men and women serving time in prison, prison rape has been condemned by many, including the U.S. Supreme Court: “The horrors experienced by many young inmates, particularly those who are convicted of nonviolent offenses, border on the unimaginable. Prison rape not only threatens the lives of those who fall prey to their aggressors, but it is potentially devastating to the human spirit. Shame, depression, and a shattering loss of selfesteem accompany the perpetual terror the victim thereafter must endure” (Farmer v. Brennan, 1994). According to statistics published by the nonprofit organization Stop Prison Rape, some 80,000 unwanted sexual acts take place behind bars in the United States every day. These include both inmate-on-inmate assaults and guard-on-inmate assaults. A report in Salon magazine’s 1998 series “Locked Up in America” found that “the vast majority of the more than 138,000 women in U.S. prisons and jails today [said they] have been exposed to some form of sexually related intimidation or assault by corrections officers while serving time.”
9. Do prisoners have the right to outdoor exercise? Prisoners must be afforded reasonable opportunities for physical movement. A few lower courts have recognized access to outdoor exercise as a right that may not be taken away unless justified by other prison needs (such as when a prisoner is denied access because he assaulted another
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inmate on the prison yard). Other courts have upheld prison programs of indoor-only physical activities.
10. May prison officials search prisoners’ cells? Yes. Although a cell is a prisoner’s “home” during incarceration, prisoners have no judicially-recognized expectation of privacy in their cells. Therefore the Fourth Amendment right to be free from unreasonable searches and seizures is extremely limited for prisoners. Prison officials do not need warrants to search prisoners’ cells, and searches may be random and unannounced. Typically, though, to be considered reasonable, officials must have legitimate reasons for conducting their searches, such as the prison’s need to keep the facility free of drugs and weapons. Case Example: Victor Sales, a prison inmate, filed a complaint against prison officials for failure to provide him with adequate access to the prison law library. After the complaint was filed, guards began waking Victor up twice nightly and searching his cell. The guards said they were looking for drugs and weapons, but Victor believes that the guards conducted the searches in retaliation for him complaining about the library. Other prisoners were not subjected to these “shakedown” searches after lights out. Question: Does Victor have a valid legal claim for a violation of his Fourth Amendment rights? Answer: Yes. Even though the prison officials do not need a warrant to search Victor’s cell, cell searches must still be
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reasonable. A search made in order to intimidate and harass, rather than for a legitimate prison purpose, is not reasonable.
11. Are prison officials allowed to seize a prisoner’s property during a “shakedown” search? Prison officials can almost always justify seizures of prisoners’ personal belongings, because they are permitted to take away property in order to maintain security and order.
12. Can prison officials conduct strip searches and body cavity searches of inmates? Intrusive body searches can be legitimate if they are necessary to maintain prison safety and keep out contraband. However, invasive searches are not valid if they are performed to humiliate or harass a prisoner, or to retaliate against a prisoner for angering a member of prison staff.
13. Can family members and friends visit prisoners? Visitation has never been declared to be a fundamental constitutional right. Most prisons do allow visits, but if prison officials have valid reasons for placing limits on visitation, judges almost always uphold those restrictions. It is typical for prisons to: • limit visiting hours; • minimize physical contact, requiring prisoners to communicate with visitors through a barrier such as a wall (though
lawyers can usually arrange full contact visits with their clients); • restrict the numbers and types of visitors. For example, a prison may limit visits to only certain family members, or ban visits altogether from people who have violated prison rules on previous visits or those suspected of gang-related activity; and • require both a visitor and a prisoner to be searched before and after the visit to ensure that contraband does not enter the prison. The U.S. Supreme Court has ruled that prison regulations such as these are valid (Overton v. Bazzetta, U.S. Sup. Ct. 2003).
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How Successful Are Prisons at Rehabilitating Inmates? Judges often sentence offenders to prison in the hope that they will emerge as lawful, productive citizens. However, the unfortunate fact is that imprisonment generally fails to produce rehabilitation. For example, studies have found that a year after release, 60% of ex-inmates remain unemployed. And the federal Bureau of Justice Statistics has found that two-thirds of parolees are rearrested within three years of their release. Prisons’ typical failure to achieve rehabilitation is due partly to lack of resources, which translates into a lack of prison programs. For example, estimates are that somewhere between 70% and 85% of inmates have substance abuse problems. However, less than 15% of inmates are treated for those problems while they are incarcerated. Similarly, though many inmates are functionally illiterate, prisons do little to enhance their literacy skills. Compounding the inability of prisons to provide rehabilitative services are a variety of laws that can make life on the outside very difficult for many ex-felons. For example: • Federal welfare rules bar those convicted of buying or selling drugs from ever receiving food stamps or cash assistance; • Federal housing laws allow public housing agencies to exclude ex-felons and their families from public housing; • Federal education laws bar ex-felons who have violated drug laws from receiving student loans; • Ex-felons may be unable to vote or pursue a wide variety of professions. For further information see Gates of Injustice: The Crisis in America’s Prisons by Alan Eisner (Prentice Hall).
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14. Do prisoners have a right to privacy during prison visits? No. Prison officials may monitor most visits. But visits from lawyers must be private enough to allow for confidential communication.
15. Do prisoners have the right to make phone calls? As a general rule, inmates have a right to make phone calls. However, prisons can severely restrict the right: a typical prison rule limits inmates to two short social calls per week. Prisoners may also be required to pay for long distance phone charges.
16. May prisoners be transferred from one prison facility to another? Prisoners do not have a right to liberty, and therefore they have no right to be incarcerated in the prison of their choice. If a prisoner wants to contest a scheduled transfer, prison officials must usually give the prisoner a hearing to object to the move. If the prisoner loses at his hearing and takes the case to court, a judge will typically approve the transfer so long as prison officials have a rational basis for their actions. Case Example: Mohammed is incarcerated in a federal prison in New York. Moham med’s attorney is in New York and his family lives there. Mohammed is then transferred to a prison in New Mexico, though none of his family members can afford to visit him there.
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Question: If Mohammed can show that he was transferred because the New York warden is prejudiced against people of Middle Eastern descent, would the transfer be valid? Answer: No. A prisoner’s ethnicity is not a rational reason for a transfer. Question: Is the transfer valid if the prison shows that Mohammed was transferred in order to testify before a grand jury in Santa Fe, New Mexico? Answer: Yes. Prisons are often located in remote rural areas where family visits are difficult, so the distance from his home is not enough to invalidate the transfer. And Mohammed’s presence as a witness before the grand jury would certainly be a legitimate government reason to move him (Olim v. Wakinekona, U.S. Sup. Ct. 1983). Mohammed might more successfully challenge the transfer if he could show that he was transferred as punishment for having requested a pork-free diet, or if he were too weak to travel and could show that the move would cause serious pain or injury.
17. Do prisoners have the right to send and receive mail? Yes, but prison officials may typically open and read mail first. However, prison censorship must be related to rational prison concerns. For example, they can justify examining incoming mail more strictly than outgoing mail, because mail entering the facility must be more carefully screened for contraband.
18. May prison officials open and read mail to and from a prisoner’s lawyer? Prison officials have a limited right to open letters and packages from lawyers. Officials can open mail to be sure that it does not contain contraband. However, they typically must open it in front of the inmate. Moreover, officials may not read the contents of lawyer-client communications. Lawyers who send mail to prison inmates mark it as “privileged legal communication” or “confidential legal correspondence,” and inmates should do the same when they write letters to their lawyers.
19. May prison officials place limits on inmates’ mail privileges? Yes. A prison may limit the people with whom a prisoner corresponds when necessary for prison order, safety, or security. Prisons may also limit the type of mail a prisoner receives. For example, prisons may forbid mail that contains nudity or sexuallyexplicit material. Case Example: Bruce, who is in a maximum security prison serving time for selling narcotics, has been corresponding with his girlfriend Rainy. A prison guard recently found photos and maps of the land around the prison as well as references in the girlfriend’s letter that officials felt might help Bruce to plan an escape. Question: Can the prison forbid future correspondence between Bruce and Rainy? Answer: Yes. The prison has an adequate basis for thinking that mail letters to and from Rainy pose a security threat.
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20. Are disabled prisoners protected under the Americans with Disabilities Act?
22. Can prisoners be required to work while in prison, and, if so, are they paid?
Yes. Prison officials at state and federal facilities must provide reasonable accommodations for disabled prisoners (Pennsylvania Dept. of Corrections v. Yeskey, U.S. Sup. Ct. 1998).
Yes to both questions. The Thirteenth Amendment, which forbids slavery and other involuntary servitude, has a specific exception for people who have been convicted of a crime. According to the Federal Bureau of Prisons, “All Federal inmates have to work if they are medically able. Most inmates are assigned to an institution job such as food service worker, orderly, plumber, painter, warehouse worker or groundskeeper. These jobs pay from twelve cents to forty cents per hour.” Most states pay prisoners similarly low wages for prison work, and some allow for compensation in the form of “credits” toward a reduced sentence rather than money. Monies earned from prison work are placed in accounts that prisoners may draw on to buy personal items through the prison commissary (store), to make phone calls, pay for court filing fees, or to satisfy court judgments such as victim restitution or child custody.
Case Example: An informant reported that he had seen Kathi Andrews, a deaf inmate, with a sharpened kitchen knife in violation of prison rules. Kathi was given an informal prison hearing to review the charges but was not provided a sign language interpreter at the hearing. Question: Did the prison violate Kathi’s rights under the Americans with Disabilities Act (ADA)? Answer: Perhaps. If the hearing officer spoke slowly and looked directly at Kathi so that she was able to understand everything by lip-reading, the prison may have done enough to reasonably accommodate her disability. If, however, the hearing was before a panel of officers and Kathi (who is only able to lip-read one person at a time) could not understand the proceedings without an interpreter, then the prison may have to provide one. In such a case, the prison may also have to remove any restraints on Kathi’s hands so that she could respond through the interpreter.
21. May prisoners get married while in prison? Yes, but prison officials may limit the type and length of any wedding ceremony.
Case Example: Lynn Felder is in jail awaiting trial on murder charges. Question: Can Lynn be forced to work in the jail’s kitchen facility? Answer: No. Lynn has not yet been convicted of a crime. The Thirteenth Amendment only permits forced labor as punishment for those convicted of a crime.
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23. Is a prison the same thing as a jail?
26. Can prisoners vote while in prison or after they are released?
A jail is a locked facility that generally houses defendants who are awaiting trial and unable to make bail, or who have been convicted of and are serving sentences for misdemeanors (less serious crimes). A prison, also known as a penitentiary, is a locked facility that houses inmates convicted of felonies (more serious crimes). Jails are normally funded and run by local governments, whereas prisons are administered by state or federal prison bureaus.
Almost all states bar felons from voting while they are in prison. (Only a few states, such as Vermont, allow prisoners to vote by absentee ballot.) At least seven states permanently bar convicted felons from voting. An estimated four million United States citizens are currently prohibited from voting due to felony convictions. Because a disproportionate number of those convicted of felonies are members of minority groups, these bans have prevented a higher percentage of minorities from voting than nonminorities. If you’d like more information on the states that ban voting rights for ex-felons, you can check out a report prepared by Human Rights Watch, at www.hrw.org/reports98/vote. Even in the states that do not permanently ban those with felony convictions from voting, the restoration of the right to vote is not necessarily automatic. In many states, the right to vote, along with the right to hold public office and serve on a jury, are part of a “package” of civil rights that may be restored upon the completion of a sentence (which means serving out any parole or probationary term in addition to any imprisonment associated with that conviction). In some states, such as California, Utah, and Oregon, these civil rights are restored automatically once a felon finishes the full sentence. In other states, corrections officials must notify the state’s Office of Elections, or the released felon must personally obtain a “Certificate of Discharge” and submit it to the governor’s office, affirmatively requesting the restoration of civil rights. To determine how to restore voting and other civil rights in a particular state, contact that state’s Department of Corrections.
24. Can prisoners choose the type of work they are required to do in prison? No. But prison officials may not discriminate against prisoners in making work assignments. For example, officials cannot base work assignments on an inmate’s race or religion.
25. Can prisoners lose professional or business licenses as a result of imprisonment? Whether conviction and imprisonment will cause a prisoner to lose a business or professional license often depends on the rules of the agency that issued the license. For example, in most states lawyers who are convicted of crimes involving fraud will almost certainly be disbarred. To determine how incarceration might affect a particular license, an inmate should consult both state licensing rules and the rules of the organization that issued the license.
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27. Do prisoners lose custody of their children when they are imprisoned? Inmate parents do not automatically lose formal custody of their children just because they are sent to prison (although this may happen to parents convicted of crimes involving child abuse or neglect). Because an imprisoned parent is not available to care for children, however, either the parent or the state must make other custodial arrangements. In some cases, prisoners may even have their parental rights terminated, but when that’s at stake the inmate parent must first be given notice and the opportunity for a hearing. There is no federal constitutional right to be provided with a lawyer during a termination of parental rights proceeding, but many states do provide lawyers for prisoners facing this situation.
28. Must a parent who is paying child support continue to make payments while in prison? Many states require inmates to pay up to 50% of what they earn in prison toward satisfying court judgments like child support or victim restitution. An inmate parent may also be required to make up for any payments missed during the prison term once released and employed. In other states, however, an inmate parent’s child support obligations are suspended and do not have to be paid during the time the inmate is incarcerated.
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Section II: Legal Resources for Prisoners and Their Families The following section explains the basics about how prisoners can enforce their legal rights. The section also includes listings of resources that prisoners and their families can use to get more information about prison life.
29. Do prisoners have any recourse when prison officials seek to revoke their privileges for violating prison rules? Prison officials must normally afford prisoners limited due process before revoking their privileges. This means that officials must provide prisoners with notice of the actions they intend to take and the reasons for them. Inmates can then have a hearing to contest the officials’ punitive actions. These hearings are usually informal. Inmates have no right to a lawyer at these disciplinary hearings, and they may even be restricted from presenting witnesses if doing so would create security or safety problems. Case Example: Mark Oh was found with a sharpened nail file taped to his foot, in violation of prison regulations. Prison officials notified Mark in writing that because of the violation, he would lose all the “good time credits” he had accumulated as a model prisoner (credits that would have gone toward an early release on parole). Mark was told that he could appear before the prison ombudsman to tell his side of the story, but that he would not be allowed to have a
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lawyer present or to call any witnesses on his behalf. Question: Are the prison procedures legitimate? Answer: Probably. Because a nail file could be used as a weapon, prison officials had valid security reasons for revoking Mark’s good time credits. Also, the officials gave Mark written notice and an opportunity to appear at a hearing. If Mark wanted to call a witness who could explain why he had a legitimate reason for carrying the nail file, then prison officials should allow the witness to appear at the hearing unless officials could show that the appearance threatened safety or security.
30. How can prisoners use the courts to enforce their legal rights? Prisoners who believe that the conditions in which they are living are unlawful should normally begin by making a written complaint to the prison administration. The courts often will not consider prisoners’ complaints unless the prisoners can prove that they first tried to resolve their problem within prison channels. Many facilities have complaint forms; if not, a letter will do. A prisoner may also want to send the complaint to the state or federal agency that is ultimately responsible for the facility’s operation. If the complaint fails to remedy the problem, a prisoner may then seek help from the courts. A prisoner can also seek help from a nonprofit prisoners’ rights group.
Prisoners’ rights legal claims can take a variety of forms. A prisoner may file suit in state court under a state’s “Tort Claims Act” to try to recover money damages for personal injuries, perhaps as a result of physical abuse by a guard or another prisoner. A prisoner may file a federal civil rights claim (also known as a “Section 1983” action) to recover money damages for physical injuries or to redress the violation of a federal civil right, such as interference with the right to practice one’s religion. A prisoner’s lawsuit may seek money damages or a court order (called “injunctive relief”) requiring prison officials to take action, such as improving substandard conditions or transferring the prisoner to another facility.
31. Does the right of access to the courts include the right to counsel? The right to counsel (meaning the right to assistance from a lawyer, appointed free of charge for those who cannot pay) is guaranteed only through a defendant’s first appeal. So as a general rule a prisoner has no right to counsel for the purpose of filing prisoners’ rights claims. However, judges have the power to appoint lawyers to represent prisoners who challenge conditions of confinement. Generally, a judge will do so only when a prisoner’s complaint raises serious issues that are likely to affect a sizable group of prisoners. One paradox of this approach is that judges may be least likely to find out about and appoint
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attorneys for the very prisoners who most need the assistance of counsel, such as those in solitary confinement or those who cannot read or write English.
32. What kind of rules apply to prisoners’ lawsuits? The lawsuits filed by prisoners are subject to an array of rules. While some of these rules seem technical or picky, failing to follow them can mean your lawsuit will be delayed—or worse, thrown out completely. For example, a judge may invalidate a claim because the prisoner waited so long to file it that a “statute of limitations” (a rule that sets time limits on claims) ran out. Case Example: Joe is convicted and sentenced to prison in Illinois. An appeals court overturns the conviction on the ground that the police illegally arrested Joe. After the state decides not to prosecute Joe again, Joe files a civil lawsuit against Illinois seeking damages for being falsely arrested. Illinois’ statute of limitation on civil rights claims is two years, and Joe filed his complaint more than two years after the case started. Question: Did Joe file his complaint in time? Answer: No. Joe had two years from the time he was brought into court to sue for false arrest, because at that point the illegal arrest concluded. Because Joe waited more than two years to file his civil lawsuit, the judge was correct to dismiss his complaint (Wallace v. Kato, U.S. Sup. Ct. 2007).
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Prisoners may also have to show they tried to resolve their problems informally within the prison system before going to court (a requirement called “exhausting administrative remedies”). Other rules specify that the prisoner file with the court that has jurisdiction (power) to hear a case, limit the length of documents, and require certain papers to be officially witnessed (“notarized”). Because the rules governing these cases can be complex, prisoners who have funds available are usually best served by hiring lawyers to represent them. Most prisoners cannot afford to hire lawyers, and to make matters worse, most public defender groups are not authorized to represent prisoners whose convictions are final. A limited number of lawyers or prison legal rights organizations provide free (“pro bono”) legal representation to prisoners. Because these resources are scarce, many prisoners represent themselves, which is called filing a case “pro per” (also called “pro se”). Selfrepresenting inmates have to follow the same rules as lawyers, so they should plan on spending as much time as they are permitted in the prison law library researching the legal basis of their claim as well as the technical requirements for filing their case.
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Resources for Prisoners’ Lawsuits Here are some publications for prisoners who are filing a prisoners’ right lawsuit without the help of a lawyer (and for their friends and family if they are helping the prisoner with the lawsuit): • Prisoner’s Self-Help Litigation Manual, by John Boston and Daniel E. Manville (2d ed. Oceana Publication, Inc.); • Represent Yourself In Court, by Paul Bergman and Sara J. Berman-Barrett (5th ed. Nolo); • Rights of Prisoners, by Michael B. Mushlin (3rd ed. Clark, Boardman, Callaghan); and • A Jailhouse Lawyer’s Manual, by the Columbia Human Rights Law Review (6th ed. Columbia Human Rights Law Review). A Jailhouse Lawyer’s Manual provides names, addresses, and other information about prisoner assistance groups across the country. It is available online (www. columbia.edu/cu/hrlr/index.html). In addition, prisoners may purchase both volumes of A Jailhouse Lawyer’s Manual for $45 (the price for non-prisoners is $90) or one volume for $25. A Spanish language edition is available for $15. The website contains an order form and mailing address. The Prison Law Office is a nonprofit office that provides assistance to prisoners in California. The group’s website (www .prisonlaw.com) includes self-help materials on habeas corpus, parole, personal injury claims, HIV in prison, prison staff mis conduct, and problems with confinement conditions.
33. Are prisoners supposed to have access to legal materials? Yes. Judges have acknowledged that prisoners’ legal rights may be meaningless unless prisoners have some ability to enforce them. Inmates therefore have a “right of access” to the courts. To comply with this, prisons must provide inmates with either an adequately-stocked prison law library or help from legal assistants. Prisons must also provide supplies necessary to file court documents, such as paper, pens, postage stamps, and sometimes notaries.
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The Restrictions on Prisoners’ Litigation Are Increasing
Other Sources of Information on Prison Life
Prisoners’ lawsuits challenging the conditions of their confinement constitute about 10% of all civil cases filed in federal court. Judges and lawmakers increasingly view many prisoners’ legal claims as “frivolous”—that is, unreasonable claims that waste judges’ time. This hostility to prisoners’ claims has led to harsh new limitations on cases brought by prisoners.
Here are some additional places for prisoners and their families to look for information on adjusting to life in prison:
For example, the United States Supreme Court has ruled that a state has no obligation to “enable [a] prisoner to discover grievances, and to litigate effectively” (Lewis v. Casey, U.S. Sup. Ct. 1996). Moreover, a federal law known as the Prison Litigation Reform Act (PLRA) cut back on prisoners’ rights to file legal claims in forma pauperis (without paying court filing fees). As a result, prisoners may be required to pay part of the fees when they file and to continue making payments during the remainder of their prison term (drawing on earnings from prison labor). The PLRA also gives federal judges the power to dismiss prisoners’ lawsuits immediately unless the prisoners have “exhausted their prison remedies.” That is, prisoners must try to resolve their grievances by using all the procedures that a prison provides before going to court. However, judges have to consider “exhausted” claims even if prisoners’ lawsuits improperly add new (“unexhausted”) claims. The judges rule on the merits of the “exhausted” claims but ignore the “unexhausted” ones. (Jones v. Bock, U.S. Sup. Ct. 2007) For more information on the PLRA, see The PLRA: A Guide for Prisoners, published by the ACLU’s National Prison Project.
• The ACLU’s National Prison Project publishes The Prisoners’ Assistance Directory, which refers prisoners and their families to helpful support organizations. • The Prison Law Page was an extensive Internet resource on—as they put it—life on “the other side of the wall.” The site is no longer regularly updated, but it still contains numerous articles on prison conditions, health, education, safety, religion, and the death penalty. Readers will also find an extremely detailed dictionary of prison terms. The website is at www.prisonwall.org. • The Federal Bureau of Prisons’ webpage is located at www.bop.gov. • A publication called the Directory of Programs Serving Families of Adult Offenders is available through the website of the National Institute of Corrections. This booklet, which you can download from NIC’s website (シープナッパシングルライダースブルゾン), lists public and private organizations throughout the United States that serve inmates’ families.
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Section III: Parole Parole is the conditional release from prison before the end of a sentence. People on parole (called parolees) remain under supervision until the end of a fixed term, and they normally have significant and strict conditions with which they must comply to remain at liberty. Parolees are supervised by parole department officers; the parole department is usually an arm of the state’s prison agency.
34. What are typical parole conditions? Here is a list of requirements and rules that parolees typically must follow in order to remain at liberty: • report regularly to a parole officer; • report their whereabouts (some parolees are required to wear electronic monitoring devices that track their location); • obtain permission in advance for any travel out of a county; • submit to random searches of their homes, cars, and persons (including blood, urine, and saliva testing, for disease, drugs, or other contraband) • obey all laws; • refrain from using, buying, or selling alcohol or illegal drugs; • avoid certain people, such as victims, witnesses, gang members, or persons with criminal records; • pay money for court-ordered restitution; and • attend classes or counseling sessions, such as court-ordered drug or alcohol treatment classes or anger management classes.
If the parole board finds that the parolee violated his parole conditions, his parole can be revoked, in which case he returns to prison to serve all or most of the remainder of the sentence. If the parolee violates his parole by committing another crime, the parolee can be forced to serve the remainder of the original sentence (as a parole violation) and then serve a sentence for the new conviction.
35. What is the difference between probation and parole? Parole is early release from a partiallyserved prison term, granted by a parole board. The parole board is an administrative agency that is part of the state corrections department. In contrast, probation is imposed by a judge at the time of sentencing, to be served as an alternative to or in addition to a jail or prison term. (See Chapter 22 for more on probation.) There is no parole in the federal prison system; a federal prisoner earns “good time” credits for behaving in prison but still has to serve a minimum of 85% of his sentence.
36. How long can I remain on parole? The length of parole terms vary widely and are a function of the length of time left to serve on the original sentence. Parole may be as short as a year or as long as a lifetime. Upon evidence of good behavior, a parole board may terminate parole before its scheduled end.
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37. Can a parolee relocate? Parole conditions typically prevent a parolee moving from one county to another within the same state without permission from a parole officer. Reasons that might incline a parole officer to grant a request for a move include: • to protect the parolee • to allow the parolee the opportunity to work or study • to permit the parolee to live closer to family members who can aid in a parolee’s rehabilitation, or • to permit a parolee to obtain necessary medical or mental health treatment.
38. Do judges decide when to release prisoners on parole? Not usually. Decisions to grant and revoke parole are made by a group of prison officials called a parole board. But in some cases, parolees have the right to appeal the decisions of the parole board to a court, or to a Board of Appeals within the parole agency.
39. What factors do parole boards consider when deciding whether to parole a prisoner? Although the decision to grant parole is ultimately a subjective one, parole boards are usually required to consider a prescribed set of factors in making a parole determination. These factors typically include: • the severity of the original offense and any sentencing recommendations affecting parole;
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• the prisoner’s behavior while incarcerated; • statements submitted by victims; and • a prisoner’s chance for successful reintegration into the community.
40. Can victims affect parole decisions? In many states, victims or their surviving family members have a right to be notified that the prisoner who harmed them is eligible for parole and has an upcoming parole hearing. The victims can submit their views to the parole board either in writing or by making a personal appearance at the hearing.
41. What happens if a parolee violates a condition of parole? The parole board may revoke parole and order the parolee returned to prison. Before this happens, however, due process entitles a parolee to: • written notice of the alleged violation(s) and of the evidence against the parolee; • a hearing, usually conducted by a hearing officer or parole board and not by a judge. At the hearing, a parolee may present witnesses and other evidence and cross-examine adverse witnesses unless the hearing officer or parole board has good cause not to allow witnesses to appear; and • at the conclusion of the hearing, a written decision setting out the reasons for the parole revocation.
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Parolees facing revocation of their parole often try to cut a deal (sometimes called a “screening deal”) where they give up the right to a hearing in exchange for receiving less prison time than would have been imposed following a complete hearing and revocation decision.
42. Do parolees have a right to appointed counsel at parole revocation hearings? No. Parolees may request the court that sentenced them to appoint counsel for a parole revocation hearing. Judges have the discretion to appoint counsel in those circumstances, and they are more likely to do so when facts are seriously disputed or involve complex documentary evidence, or when a parolee is not capable of selfrepresentation because of language or mental deficiencies.
Section IV: Pardons A pardon, also called a grant of clemency, is an order granted to an offender by the chief executive that releases the convicted person from prison and/or from further penalties that result from that conviction.
43. What is “temporary release” and how does it differ from parole? Temporary release allows prisoners to leave prison for a short time to deal with important personal matters. For example, a prisoner might apply for temporary release in order to attend a parent’s funeral. Another reason
for temporary leave is so that prisoners can work days outside of prison and look for housing prior to being formally paroled. Typically, prisoners who are granted temporary release are considered nonviolent, have behaved well while in prison, do not have extensive histories of criminal behavior, and are virtually certain to return to prison in accordance with the terms of their leave.
44. Who has the power to grant pardons? Only a jurisdiction’s chief executive has pardon power. A state’s governor has the power to pardon those who have been convicted of state offenses, and the president of the United States can issue pardons for those convicted of federal crimes.
45. What standards must governors or the president follow in deciding whether or not to grant pardons? Chief executives are accountable only to the political process when making pardon decisions, and those decisions normally are final. Few established standards exist, though many cynics insist that a record of campaign contributions is often a way to influence a chief executive’s decisions.
46. Is “sealing” a criminal record the same as a pardon? No. Sealing criminal records (often called expunging the records) is similar to a pardon in that convicted persons whose records
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are sealed may lawfully tell prospective employers that they were never convicted of a crime. Unlike pardons, however, decisions to seal criminal records are made by judges. And typically, someone seeking expungement must wait a period of time after completing a sentence for records to be sealed, whereas prisoners may be pardoned at any time. For information on sealing juvenile court records, see Chapter 25.
47. Can DNA tests show that someone who was convicted many years ago is actually innocent? Yes, and defendants who are cleared by DNA tests are perfect candidates for pardons. (A defendant who obtains a DNA test showing his innocence can also apply for relief by filing a petition for writ of habeas corpus with the courts. For more on habeas corpus, see Chapter 23, Section II.) Some states have passed laws that allow defendants in certain types of cases to demand DNA tests. For information on legal help for inmates challenging convictions based on DNA testing, contact The Inno cence Project (see below).
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The Innocence Project The Innocence Project (www. innocenceproject.org) was established in 1992 with the goal of exonerating the innocent through postconviction DNA testing. Since its inception, more than 190 innocent people, including 14 who were at one time sentenced to death, have been exonerated by post-conviction DNA evidence. When DNA testing reaffirms a client’s guilt, The Innocence Project closes the case, and the results of all testing may become a matter of public record. Through federal legislation that The Innocence Project helped bring about, defendants wrongfully convicted in the federal system are entitled to compensation of $50,000 per year of imprisonment in noncapital cases and $100,000 per year in capital cases. Having determined that mistaken eyewitness identification played a role in 75% of the convictions overturned through DNA testing, The Innocence Project has made strides in achieving eyewitness identification reform in a number of U.S. jurisdictions, thus improving identification procedures used by law enforcement and reducing the number of wrongful convictions. For more information, contact The Innocence Project at 100 Fifth Avenue, 3rd Floor, New York, New York 10011.
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Chapter 27
Looking Up the Law Section I: What to Research…………………………………………………………………………………566 1. What additional information can I find out about my case by doing some legal research?………………………………………………………………………………….566 2. What laws will tell me more about the crimes with which I am charged and the defenses that might be available?……………………………………………………………566 3. Does the substantive law cover anything other than specific crimes and defenses?…………………………………………………………………………………………..568 4. I’ve been charged with two crimes. Will I be able to find information about both crimes in the same set of books?………………………………………………….568 5. What’s the difference between state crimes and federal crimes?……………………….569 6. What are the rules that tell me how my case will move though the courts, and where do I find these rules?…………………………………………………………………..569 7. Will my local court have any rules I should know about?………………………………..569 8. What are rules of evidence, and where do I find them?……………………………………570 9. Assuming I want to do some research into some legal aspects of my case, where do I start?……………………………………………………………………………………….570 10. How can I ask someone to help me research my case when my lawyer told me not to talk to anyone about it?………………………………………………………….570 11. If it’s necessary to hit the books, where do I start?…………………………………………..571 12. So once I have a dictionary, what do I do next?……………………………………………..572 13. What are legal encyclopedias, and how can they help me research an issue in a criminal case?…………………………………………………………………………572 14. What are “form books,” and how can they help me in my criminal case?…………..573 15. What are “practice guides,” and how can they help me research an issue in my criminal case?………………………………………………………………………574 16. What’s the best way to find the law itself?……………………………………………………..574 Section II: Where to Do Research…………………………………………………………………………578 17. Where can I find a law library?……………………………………………………………………576 18. Is there any research I can do online, on a computer?……………………………………..576 19. Are there any inexpensive online resources?………………………………………………….577 Section III: Glossary……………………………………………………………………………………………577
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ot all criminal cases require legal research. Many cases do not involve complex legal questions, but rather a dispute over whose version of what happened should be believed. Some people, however, may want to look further into the law, especially if there is a search and seizure issue in the case, or there is reason to doubt that the charged crime is supported by the facts known to the defense. To facilitate such inquiries, this chapter introduces some basic legal research techniques and commonly available resources. For a more comprehensive guide to conducting legal research, consult the following excellent Nolo resource (which is relatively inexpensive and can often be found in public and law libraries): • Legal Research: How to Find & Understand the Law, by Stephen Elias and Susan Levinkind (Nolo), an easyto-read book that provides step-bystep instruction on how to find legal information.
Section I: What to Research This section offers an orientation to the general categories and terms commonly used by publishers of books dealing with criminal law.
1. What additional information can I find out about my case by doing some legal research? All of the following are different types of rules that may affect a criminal case and that can be researched in most law libraries
(see Section II, below, on how to find a law library): • Substantive law: rules that define crimes (such as murder or extortion) and defenses (such as self-defense); • Rules of criminal procedure: rules that govern the criminal justice process (for instance, when an arraignment must be held and when a case must come to trial); • Constitutional rights: rules that protect person, property, and privacy (like a defendant’s right not to testify); • Rules of evidence: rules that govern the type and amount of proof permissible at trial and other court proceedings (like rules generally barring hearsay and character evidence, discussed in Chapter 18); and • Local rules of court: rules that govern customs and regulations in particular geographical locations, courthouses, or even courtrooms.
2. What laws will tell me more about the crimes with which I am charged and the defenses that might be available? “Substantive” law is the term for rules that govern the heart of a case: the definitions of the crimes with which the defendant is charged and possible defenses to those charges. The term substantive law is used in contrast to “procedural” law, which deals with the rules that govern how cases move through the court system. This book, for example, deals primarily with procedural law, though the first section in Chapter 24 does discuss the substantive law of drunk driving.
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Probably the most important research task dealing with substantive law is to learn the legal elements of each of the charges and possible defenses in a particular case. Once the elements of a crime are understood, it is possible to determine whether the facts in the case support a conviction for that offense. For example, assume that Robert Steven Liefert is charged with burglary. The crime of burglary traditionally has been defined as “the breaking and entering into the dwelling of another in the night with intent to commit a felony inside,” a definition made up of six elements: 1. the breaking 2. the entering 3. into the dwelling 4. of another 5. in the night 6. with intent to commit a felony inside. Under this definition of burglary, if Liefert is guilty of the first five elements but did not intend to commit a felony, he should not be convicted of this offense. In modern times, most jurisdictions have modified this definition of burglary in many respects. For example, they do not limit burglary to houses but include any type of structure, and the crime may be committed at any time of day or night. Lawyers who routinely handle burglary cases would know the current definition of burglary in their state (and if Liefert were representing himself, he would want to research this information). One good place to find the standard elements of common criminal offenses and defenses is a book that contains model
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jury instructions. These instructions, which a judge reads to the jury at the close of trial and which judges use themselves in deciding cases without juries, identify the elements that must be proved in order to convict a defendant for a particular criminal offense. Most law libraries will have statespecific jury instruction books (which a reference librarian can help locate) that set out complete jury instructions for common crimes.
Here are two of the more commonly used jury instruction books: • Federal Jury Practice and Instructions, by Kevin F. O’Malley, et. al. (Thomson-West Publishing, 5th ed. 2000); • Criminal Defense Jury Instructions, by Harry Ackley (Knowles Law Book Publishing, Inc.).
In addition to understanding the elements of a particular crime, it may be necessary to do some additional research about the meaning of abstract legal jargon used to define the elements. What, for instance, does “breaking and entering” really mean? What if Liefert walked into the building by opening an unlocked back door; is that “breaking”? What if he broke a window and reached his hand in to grab something without ever actually going inside; is that “entering”? Case Example 1: Anita Shelter, a homeless person, broke into an abandoned building to get out of the rain.
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Question: Could she be convicted of burglary? Answer: Not under the traditional definition (breaking and entering into the dwelling house of another in the night with the intent to commit a felony inside). The breaking and entering is the act; the intent to commit a felony inside is the mental component. Because Anita’s intent was merely to get out of the rain, she did not intend to commit a felony in the building.
Case Example 2: Same case. Question: What if Anita, once inside, found and then decided to steal a diamond ring. Would she be guilty of burglary? Answer: No. That would not have been burglary either under the traditional definition, since the intent to take the ring was not formed until after the breaking and entering.
To answer these types of very specific questions, you would need to know how the courts in your state have interpreted your state’s burglary statute. Or, if you are charged with a federal crime, you will need to know how the federal courts have dealt with the federal statute in issue. Usually the best way to start acquiring this information is to get an overview from a secondary resource (a discussion of the law by an expert rather than the text of the law itself). Just as a lawyer might, a nonlawyer would probably start by asking the law librarian to suggest an appropriate secondary resource on crimes against property—or burglary in particular. The librarian may suggest consulting a general treatise (reference book) about criminal law, a criminal law treatise for your particular state, a chapter about burglary in a legal
encyclopedia, or some other resource. (More on these below.)
3. Does the substantive law cover anything other than specific crimes and defenses? Substantive criminal law also covers certain legal principles that apply to criminal prosecutions in general. One such principle is that most crimes require that some physical act be taken toward commission of the crime (as opposed to just talking about it) and a frame of mind that is consistent with doing something wrong (called the mens rea, or guilty mind, requirement). Some offenses also require that the defendant’s actions cause a particular result, such as murder, which requires that the defendant’s actions cause the death of a person.
4. I’ve been charged with two crimes. Will I be able to find information about both crimes in the same set of books? A person can, quite naturally, be charged with more than one crime. The substantive laws governing those crimes may or may not be located in the same book or set of books. Example: Yetta Speed was stopped for DUI (driving under the influence), and the police found illegal drugs in her car. Yetta was charged with both DUI and possession of illegal substances. Laws relating to the DUI might be in a “Vehicle” code, section, or title with other laws relating to moving violations, while laws relating to illegal substances might be in a “Health and Safety,” “Criminal,” or “Penal” code, section or title.
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5. What’s the difference between state crimes and federal crimes? States and the federal government both enact criminal laws. Some offenses, like routine drunk driving, would be state crimes, covered by state laws, whereas assaulting a federal officer, like an FBI agent, would likely be a federal offense no matter where it is committed. But, as with many aspects of the law, even these divisions are not so clear-cut. To commit the crime of assaulting a federal officer (18 U.S.C. § 111), among other things, the victim must have been engaged in the performance of official duties at the time of the assault. If the victim was an off-duty FBI agent, the case might well be governed by a state assault statute (law). Also, the same conduct may violate both federal and state laws. A well-known case involving federal and state criminal trials stemming from the same incident involved four California law enforcement officers accused of beating motorist Rodney King. The officers were tried and acquitted in state court on assault charges and were tried and convicted in federal court for having violated Rodney King’s civil rights.
6. What are the rules that tell me how my case will move though the courts, and where do I find these rules? Procedural rules govern the process of criminal justice, before, during, and after trial. Rules of criminal procedure control dozens of details including such things as: • how soon after arrest a suspect must be arraigned;
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• whether a prosecutor must conduct a preliminary hearing or may seek an indictment from the grand jury; and • when a jury trial must be requested. Procedural rules for criminal cases may be grouped together in a particular chapter, title, or section of general laws under a heading called “Criminal Procedure.” Some states have conveniently separated rules into collections of books called “codes.” In these codes, there may be a separate code of criminal procedure. In other states, people must look up the rules they need in what’s called a general index to statutes. The federal courts use the Federal Rules of Criminal Procedure. Again, reference librarians in law libraries are usually most helpful in pointing folks in the right direction.
7. Will my local court have any rules I should know about? Local court rules also affect procedure, and they can be critical to effectively defending a case. Local rules can govern many details, even things like how many copies of legal documents must be submitted and the type of paper required. These may sound like picky little details, and they are. But they are details that you must follow. Local rules also vary; even different counties within the same state can have different rules. People can usually obtain a copy of local rules of court from the courthouse law library, the Clerk’s Office, or the court clerk or law clerk to a particular judge.
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8. What are rules of evidence, and where do I find them? Evidence rules govern how the defense and prosecution are to present the testimony of witnesses and exhibits they attempt to introduce into evidence, and what types of information qualify to be admitted as evidence in a trial. Chapter 18 explains the most frequently-encountered rules of evidence and refers to particular federal rules of evidence. To get an idea of how typical evidence rules are worded, the federal rules are good starting places for research because they have been adopted or used as a guideline in over half the states. But the defense must be familiar with the rules for its specific state and how courts in its state have interpreted these rules. Again, law librarians, upon request, will direct people to the appropriate rules of evidence.
9. Assuming I want to do some research into some legal aspects of my case, where do I start? Many people faced with the need to do legal research start by floundering for hours through mostly useless material. Fortunately, there are often better and quicker ways to ferret out the sought-after information. One standard method is to ask a human being who is likely to know the answer. Even lawyers like to start research projects by asking their colleagues or law librarians for ideas. And, just as doctors rarely go to family or social events without being asked to diagnose illnesses off the top of their heads, so too are lawyers routinely solicited by friends and family for “quick” answers to legal inquiries.
If you don’t have a human being to ask, or need a more detailed answer than you can get from one, probably the best place to start your research is a specialized reference book (such as those described below in Question 15) that explains and organizes the substantive law or procedural law.
10. How can I ask someone to help me research my case when my lawyer told me not to talk to anyone about it? Because of the potential consequences in a criminal case (where the defendant’s liberty and sometimes life is at stake), defendants, as well as their friends and family, must be very careful about whom they talk to about the case. For instance, it is possible that a prosecutor might attempt to find out even from a law librarian who helped the defendant do some research whether the defendant said anything to indicate guilt. Defendants who reveal confidential information to a librarian or, for that matter, to anyone other than their lawyer, also risk destroying the confidential nature of whatever they’ve said in the past to their lawyer. (See Chapter 8 for more on the confidential nature of lawyer-client communications.) With those warnings in mind, the following people may be helpful in certain respects: • Law librarians. Law librarians, who usually have extensive legal training, can be most helpful in pointing out and helping locate resources such as legal forms, reference books explaining particular areas of law, rules of evidence and procedure, court cases, and statutes.
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Both for the confidentiality reasons discussed above and because it’s not a librarian’s job, people should not ask or expect a law librarian to do research for them or provide legal advice. Librarians can, however, help find and sometimes explain how to use many important research tools. • Courtroom and courthouse clerks. Clerks at the court where a case is pending can sometimes be very helpful, especially when it comes to procedural details. They can provide routine (but nonetheless essential) details such as the time court starts and where bathrooms and cafeterias are. They may also help people obtain copies of documents such as court rules, legal forms, and jury instructions. Clerks are sometimes hostile to people they view as wasting the court’s time, however, such as people representing themselves and those perceived as asking for legal advice. But asking how to get forms and court rules is not seeking legal advice. Whether asking where the bathroom is or how to fill in a subpoena form, people should try to be especially polite to clerks. They are used to dealing with so many rude and pushy people that someone who is polite may well stand out and have a much better shot at being treated respectfully in kind. • A self-help legal coach. Consulting a lawyer doesn’t always have to mean hiring the lawyer to handle the whole case. It may be possible to find a lawyer to give you research tips as you need them. (See Chapter 7 for more on legal coaches.)
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11. If it’s necessary to hit the books, where do I start? It might help to start with a good legal dictionary. Legal jargon can seem like a foreign language—called “legalese” by some. Though it is not easy, or for that matter even necessary, to become fluent, it does help to at least be comfortable with certain essential legal terms. Many such terms have been defined throughout this book, and there is a glossary of criminal law terms in Section III of this chapter. But people may still want to consult a legal dictionary both for words not defined here or for more detailed explanations. It is obviously crucial to understand unfamiliar terms. But it can also be important to review familiar terms, because they may have different connotations in legalese. For example, many people think of being “robbed” as having their possessions stolen. Let’s say Lisa and her husband Steve come home from a wedding only to find their front door kicked in, furniture broken, and TV missing. Lisa says “Steve, we’ve been robbed!” While perfectly appropriate in everyday terms, their house had actually been “burglarized.” For them to have been robbed, the perpetrator would have to have taken their property directly from them, while they were present, using actual force or intimidation that placed them in fear. The difference may seem like word play, but it can be critical. Since robbery is an offense against person as well as property, robbery typically carries a stiffer sentence than burglary, a crime against property only.
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Readable dictionaries. While many lawyers use Black’s Law Dictionary (West Publishing Co.), the following dictionaries may be easier to understand: • Law Dictionary, by Stephen Gifis (Barron’s); • Dictionary of Legal Terms: A Simplified Guide to the Language of Law, by Stephen Gifis (Barron’s); • Law Dictionary for Non-Lawyers, by Daniel Oran (Delmar Publishing Co.); • Law Thesaurus-Dictionary, by William Statsky (West Publishing Co.); and • Dictionary of American Legal Usage, by David Melinkoff (West Publishing Co.).
12. So once I have a dictionary, what do I do next? There are many legal reference books that summarize and explain court cases, statutes, and other rules of law, and these reference books can be important legal research tools. They may provide particular answers (or cite to other helpful resources) or give the big picture. Either way, they are often a good place to start a research project.
Publications That Explain the Law Are Not the Last Word Explanations and conclusions in encyclo pedias or treatises (resource books covering a whole subject such as drunk driving or search and seizure) are not binding law. Rather, they are the opinions of the authors, and authors—even learned scholars—may be wrong. Also, because law can change very quickly, the information may be out of date. Even if the author is right and the information is up to date, a judge in any given case is not required to follow what the author says (true even for the authors of this book!). Rather, the judge is bound only by the law itself, the statutes, and court opinions that speak to the facts of the particular case. Rather than rely on the experts, you will be wise to look up the original law sources (statutes and cases) yourself or double-check with a lawyer. Still, there’s no question about it; background reference sources are good places to start.
13. What are legal encyclopedias, and how can they help me research an issue in a criminal case? Legal encyclopedias—organized alphabet ically by topic with a detailed index at the end of the last volume, like regular encyclopedias—cover virtually every aspect of the criminal justice system. Each entry not only summarizes the law, but also refers to the statutes and cases that provide the legal basis for the entry. Although any given encyclopedia entry may offer a general discussion of the legal principles involved in that particular subject area, crime, or
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defense, they seldom are specific enough to actually provide an answer. But they can help someone totally unfamiliar with an area of law gain an understanding of the important issues, perhaps suggesting further research in more specifically-focused sources.
Encyclopedias. The two main national law encyclopedias are American Jurisprudence (Am. Jur.) and Corpus Juris. They include broadly based discussions on the laws of all 50 states. Both are now in their second series, so cites are to “Am. Jur. 2d” and “C.J.S.” (Corpus Juris Secundum). Many of the larger states have their own encyclopedias as well, for example: • Pennsylvania Law Encyclopedia; • New York Jurisprudence 2d; • Encyclopedia of Georgia Law; • Florida Jurisprudence; and • California Jurisprudence 3d.
14. What are “form books,” and how can they help me in my criminal case? Form books are collections of sample legal documents. They include fill-in-the-blanks documents, which can be copied and filled in with appropriate information. Sometimes, they have to be customized to fit the circumstances of a particular case. Some states provide their own fill-in-the-blanks forms, available for small sums of money at local courts. Court clerks, law librarians, and lawyers can help locate form books and court-approved forms. Form books can help in preparing legal paperwork such as
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subpoenas, pretrial motions (requests to the judge; see Chapter 19), and stipulations. Form books also usually explain the procedural background for each form. They can provide helpful explanations of the laws that have to be followed and instructions for completing the forms, and they often refer to other resources for further information. Forms can help the following kinds of defendants: • Represented defendants. Looking at forms can give represented defendants a feel for how other lawyers draft certain documents, to see how they compare to what their own lawyers have drafted and possibly to clarify questions they want to ask their lawyers; • Defendants doing much of the work themselves but hiring a legal coach on an as-needed basis. These defendants can consult forms to do a first draft of a motion, for example, and then have their coach edit the motion rather than draft it from scratch. Some lawyers may find this helpful, while others may find it easier and cheaper to draft such a document from scratch; and • Self-represented defendants. By reviewing a form, they avoid having to reinvent the wheel.
Some form books are: • Federal Procedural Forms (Bancroft Whitney/Lawyers Coop); • Florida Criminal Procedure (Bancroft Whitney/Lawyers Coop); • New Jersey Criminal Procedure (Bancroft Whitney/Lawyers Coop);
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• Criminal Law of New York (Bancroft Whitney/Lawyers Coop); • Texas Criminal Practice Guide (Matthew Bender); and • West’s California Criminal Defense Motions Forms Manual (West Publishing Co.).
15. What are “practice guides,” and how can they help me research an issue in my criminal case? In addition to all the other types of resource books discussed in this chapter, lawyers often consult guide books—sometimes called practice guides or manuals or “continuing legal education” (CLE) materials. These guides, published by and for lawyers, include practical tips, suggestions, and forms in areas of state and federal law practice. They cover a huge variety of subjects, such as drunk driving, grand jury practice, criminal appeals, and many more. Practice guides are available in many states, and some publishers gear their materials specifically toward lawyers in particular states. For example, the Practicing Law Institute (PLI) gears some materials toward New York lawyers, and the Rutter Group and Continuing Education of the Bar (CEB) toward California lawyers.
Some practice manuals: • Trial Guidelines for the Defense of Criminal Cases (ALI); • Defense of Drunk Driving Cases (Matthew Bender); • Prosecution and Defense of Criminal Conspiracy Cases (Matthew Bender);
• Defending a Federal Criminal Case (Federal Defenders of San Diego, Inc.); • Representation of Witnesses Before Federal Grand Juries: A Manual for Attorneys (National Lawyers Guild); • West’s California Criminal Procedure, by Laurie L. Levenson (West Publishing Co.); and • West’s California Criminal Trial Book (West Publishing Co.).
16. What’s the best way to find the law itself? The law itself consists of constitutional provisions, statutes, court cases, municipal ordinances, and administrative regulations.
a. State and federal statutes Statutes are rules enacted by federal and state legislatures. Statutes are sometimes called acts or, simply, laws. State statutes are generally grouped by subject matter for the purpose of publication. Most sets of state statutes take up many volumes, but are divided into “codes,” “chapters,” or “titles,” which are in turn divided in sections and subsections. Federal statutes are published in the United States Code. As are some state collections of statutes, the U.S. Code is divided into titles and sections. Each statute has a particular number, called a citation or cite. With citation to a statute (for example, from this or another Nolo book or a treatise, encyclopedia, or practice manual), one can easily find the statute. For example, the crime of assaulting a federal officer is
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mentioned above (in Question 5) followed by the number (citation) 18 U.S.C. § 111. To find this statute, one would look in Title 18 of the United States Code (U.S.C.) and then find the volume of that title containing Section 111. Books containing collections of statutes include an index in the last volume that has references to the location of particular statutes according to their subject matter. To use a subject matter or topical index, it helps to think of a number of possible headings for the particular subject (for ideas, review headings in a treatise or encyclopedia or ask a librarian). If the statute doesn’t appear under the first logical heading, it pays to keep searching or perhaps consult a legal dictionary for related words or phrases. Legal subjects also overlap, so helpful information may be listed under more than one heading. For example, laws a reader might want to review that relate to protecting a defendant who has been subjected to a police search may be located under any or all of the following (or other) headings: “Search and Seizure” (or either separately), “Fourth Amendment,” or “Exclusionary Rule.” When looking at collections of statutes, it is helpful to use the annotated versions if these are available. Annotated collections of statutes contain the language of the statute along with short summaries of the significant court cases (including their legal citation for easy reference; see below) that have interpreted the statute, and references to other resource books and articles that have discussed the law. In order to read and make sense of a statute once it’s been found, it is important to:
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• Understand all the terms, by looking them up in a legal dictionary or, especially in longer statutes, looking in the beginning part of the statute for definitions of terms used in other parts of the law; and • Check that the statute is current. Statutes are often revised and sometimes repealed. So, after finding a statute in the main section of a hardbound collection of statutes, one should look in the paperbound supplement or update (called a “pocket part”), usually located inside the back cover of the book. Pocket parts contain the changes that have been made to a law or its wording since the publication of the hardbound volume. Some pocket parts are also annotated with references, for example, citations to recent cases discussing a statute.
b. Court cases Sometimes, higher (appellate) courts review the record and decisions of lower (trial) courts, and interpret the meaning of statutes, constitutional provisions, and other court cases. These interpretations commonly make up what’s known as “common law” (judge-made law). These appellate court interpretations are documented in written decisions (called opinions, case law, or cases). The typical court opinion includes a summary of the facts that the trial judge or jury found to be true, the actual decision at which the appellate court has arrived in the appeal (called the “holding”), and the legal reasoning for that decision.
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The written decisions of appellate courts (cases) are collected and published in hardbound volumes called “reporters,” “reports,” or “case reports.” There are many separate reporters for different courts and geographical areas. For example, a case from the New York Court of Appeals may be published in a series of state reporters called New York Appeals and also in a regional reporter series called Northeastern Reporter, which includes cases from several states. Federal cases are published according to the court that decided them. For example, decisions by the U.S. Courts of Appeal are collected in the Federal Reporter. At present in its third series, this is called Federal Reporter, Third Series (which readers may see cited as “F.3d”). Recent cases, not yet included in a hardbound reporter, are located in softbound supplements. And cases decided in the last few days or weeks may often only be available from the appellate court itself or a computer reporting service—although, as discussed in Section II, below, courts in most states now publish recent decisions on the World Wide Web or on a publicly-accessible bulletin board on the Internet. To look up a new case, one just mentioned in the newspaper, for example, ask a librarian for assistance; it won’t yet be in the hardbound books. Cases, like statutes, have citations to make them easy to find. Let’s say someone wanted to read the famous case that produced a rule requiring police to read suspects their rights before conducting any in-custody questioning, Miranda v. Arizona (discussed more thoroughly in Chapter 1). Reading this book or an encyclopedia,
treatise, or legal dictionary, readers see mention of Miranda followed by the citation, 384 U.S. 436 (1966). The first number means the case is located in volume 384. The letters in the middle (U.S.) are the abbreviation for United States Reports, the case reporter series where the Miranda case is published. The last number indicates that the case begins at page 436. The names reflect the parties to the lawsuit (Ernesto Miranda was the defendant who appealed; the people of the state of Arizona were the prosecution who opposed the appeal). The date at the end is when the United States Supreme Court decided the case.
The Numbering System for Reporters Case reporters are published in numbered volumes. After a series accumulates years of numbered volumes, the publisher starts over with another series. So, you may find a cite to a 2d or 3d series. For example, People v. Gray, 254 Cal. App. 2d 256 (1967), is at volume 254 of the California Appellate Reports, second series, beginning on page 256.
In addition to the full text of the court’s opinions, reporters include “headnotes,” short summaries of the legal issues in a case. Headnotes are numbered in the order in which the issues are discussed in a case. They can be quite useful, both for a quick look at what a case is about and as a table of contents to help locate other issues of interest. But headnotes are not written by the judge or judges who wrote the opinion; they are written by the reporter’s editors.
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They can be inaccurate and are not “law,” so they should not be quoted when making an argument to a judge without first reading the actual decision of the court. Once court cases are published, they are usually not removed from the books even if later courts conclude that the decision is no longer correct. Thus, before relying on a case, people should always verify that the case is still “good law,” meaning that it has not been overruled by a later case. A series of case histories called Shepard’s Citations for Cases reports the status of published cases. Law librarians—or one of the reference sources mentioned above—can help explain how to use Shepard’s. Shepard’s can also be helpful in locating more recent cases that discuss (but don’t overrule) a particular case.
What Rules Judges Must Follow Sometimes it can be confusing to know which rules a judge has to follow. Primary authorities (statutes, cases, administrative regulations, and local rules and ordinances) can be mandatory, which means that a court has to follow them. But they can also be just “persuasive,” which means a court can consider them but does not have to follow them. For example, a state court in New York may find it helpful and convincing that a California court recently decided the same legal question that is now before the New York court. But the New York court does not have to follow the California court’s decision. Judges must, however, follow the decisions of higher courts in their own state. For example, a Los Angeles trial judge must follow a decision of the California Supreme Court (the highest state court in California), but a trial judge in Alabama doesn’t have to.
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When researching cases, it is thus best to find an appellate court case from the same state (or circuit in the federal court system) where one’s case is to be heard. But if the only case available is an out-ofstate case that is nonetheless right on point (on the same legal issue with similar facts) and very helpful, it may be worth trying to convince the judge that the out-of-state court’s reasoning should be persuasive.
c. State constitutions and the U.S. Constitution The U.S. Constitution is the supreme law of the land, which means all state and federal laws must comply with it. State constitutions provide the same effect for state laws, but state constitutions must also comply with the U.S. Constitution. Courts decide whether or not laws comply with constitutional provisions. Courts also interpret what constitutional provisions mean, just as they interpret statutes. Again, a law librarian may be able to point out a helpful resource on constitutional law. But because constitutional law is often complex, it may be very helpful to first consult a lawyer for assistance.
d. Administrative regulations Administrative regulations (“regs”) are enacted by federal, state, and local agencies. For example, the Equal Employment Opportunity Commission, Veterans’ Administration, state board of medical quality assurance, or state department of motor vehicles all make their own rules. Administrative laws govern agencies’
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policies and procedures, such as how they conduct hearings and why they grant or withhold benefits and privileges (such as licenses). Some criminal cases involve both court hearings and hearings before an administrative agency. For example, in some places defendants charged with DUI will face court proceedings for the criminal statutes they are charged with violating, and administrative proceedings to suspend or take away their driver’s licenses. A doctor who assaulted a patient may have to appear in court on criminal charges and may be called before an administrative agency regarding license suspension or revocation. Someone charged with such an offense may want to research the rules governing the administrative agency, because although an administrative hearing may resemble a court case, in reality it is quite different. For example, most agencies do not follow the rules of evidence, there is no right to a jury, lawyers may be excluded, a defendant may not be able to subpoena witnesses or documents—or even have witnesses testify— and hearings may not be open to the public.
Section II: Where to Do Research This section is about where you can find and read the various resources described in Section I.
17. Where can I find a law library? The best place to do legal research is in a law library. In some states, finding a well-
stocked law library that is open to the public is no problem; at least one library will be at a principal courthouse in every metropolitan area. But in other states, courthouse libraries are nonexistent or inadequate, and the only decent law libraries open to the public will be located at a publicly funded law school. Some private law schools also open their law libraries to the public, at least for limited hours. For simple legal research tasks, a public library may be a fine place to start. The main branch of a nearby public library may have a small but helpful legal section, which includes a compilation of the state’s criminal laws. Another possibility is to ask for permission to use an attorney’s law office library.
18. Is there any research I can do online, on a computer? Yes. Many legal sources that traditionally have been published in law books are also now available online. Two major private systems, Lexis and Westlaw, maintain online databases of court cases, statutes, legal articles, and a host of other resources (nationwide and even some worldwide). These providers usually charge for the amount of time spent online, which can get quite expensive, especially for those not familiar with the system. These companies do have toll-free numbers for information and research assistance that are very helpful. But, generally speaking, people new to legal research may do better with books than with such expensive online research. A lower-priced Internet legal research resource is now available, called VersusLaw
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(www.versuslaw.com). You can find an extended discussion of this service in Nolo’s book Legal Research: How to Find & Understand the Law. In addition to these expensive systems, it is increasingly possible to use free or lowcost services on the Internet to find statutes, cases, and background resources. (See Question 19.)
19. Are there any inexpensive online resources? Many legal reference sources are now becoming available on the World Wide Web. Statutes from many states are now online, as are federal statutes, regulations, and rules. Internet sites also link users to courts, to local district attorney and public defender offices, to prosecuting and defense lawyers’ organizations, and to the FBI, the Department of Justice, the ACLU, and more. Some Web pages have crime victims or prisoners as their target audience; others aim at more general audiences. Several websites also link users to many of the interesting criminal justice resources currently available online. These can be located by plugging words such as “criminal law,” “criminal justice,” “crimes,” “prisoner’s rights,” and “victim’s rights” into a search engine (such as www.google.com). Some of the sites that point users toward helpful criminal resources at the time of this printing include (not in any particular order): • Cecil Greek’s Criminal Justice Page at www.criminology.fsu.edu/cjlinks; • Jeff Flax’s Legal Resource Page at www.jflax.com;
• A law locator on the net called FindLaw also has a detailed criminal law section. Contact www.findlaw.com; • The Association of Federal Defense Attorneys at www.afda.org; • The Vera Institute at www.vera.org; • The Tennessee Criminal Law Defense Resources at www.tncrimlaw.com; • The National Organization for the Reform of Marijuana Laws at www .norml.org; • Cornell University has a helpful resource called the Legal Information Institute, which has among other resources a free listing of U.S. Supreme Court cases and criminal codes from a number of states, at www.law.cornell.edu; and • Materials, including sample Motions and Briefs, are available on the website maintained by the Massachusetts Association of Criminal Defense Lawyers (www.macdl.com).
Section III: Glossary This section contains simple plain-English definitions of selected criminal law words and phrases, and sometimes also provides examples of the use of the words and phrases (“context of use” examples). You may use this glossary as a minidictionary for a quick understanding of terms commonly used in the criminal justice system. You may want to consult the book’s index for further information, as well as the legal dictionaries listed in Section I of this chapter. Abuse excuse: A type of self-defense claim with which defendants seek to justify
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their actions by proving that they were subjected to years of prolonged child or spousal abuse. Accessory after the fact: A person who takes an active role in concealing criminal activity that has already taken place. (“Jake was convicted of being an accessory after the fact because he destroyed evidence of Steve’s failed kidnap attempt.”) Accessory before the fact: A person who aids criminal activity but is not present when it is committed. (“Jake was convicted of being an accessory before the fact for helping his friend Steve to plan a kidnapping.”) Accomplices: Partners in criminal activity. Acquit: A judge or jury “acquits” a defendant by finding the defendant not guilty. Acquittal: A finding by a judge or jury that the defendant is not guilty. Action: Another word for a lawsuit. While the term may be more commonly used in civil lawsuits, a criminal action simply means a criminal lawsuit brought by the prosecution against a defendant. Administrative agency: A government department charged with enforcing laws and developing regulations. For example, the Department of Homeland Security is a federal agency that enforces laws relating to public safety, and it has the power to develop regulations. Administrative law judge: A judicial officer who presides over cases brought by an administrative agency. Admissible evidence: Evidence that a trial judge can consider or can allow a jury to consider when reaching a verdict.
Admission: A defendant’s out-of-court statement offered into evidence against the defendant by the prosecution as an exception to the hearsay rule. Adversary: Party on the opposite side of a legal case. Opponent. Typically, in a criminal case, the prosecution and the defense are the adversaries, each on either side of the case. Affidavit: A written statement of facts and assertions made under oath. Affirmative defense: A type of defense that a defendant has to assert and support with evidence, such as self-defense or alibi. Aggravated offense: A crime that is made more serious because of the way in which it was committed. (“Simple assault” may become “aggravated assault” if the attacker uses a deadly weapon.) Alibi: A defense that asserts that the defendant could not have committed the crime in question because the defendant was somewhere else at the time the crime was committed. (“Defendant Evelyn has a strong alibi. The entire Martinez family can testify that Evelyn was picking her kids up from Linda’s house, and therefore could not have committed the bank robbery.”) Allegation: In a formal written criminal complaint, a prosecutor’s claim that a defendant violated the law. The term can be used informally to refer to oral claims as to how events occurred. (Context of use: “The guard alleged that the prisoner had a weapon.”) Anticipatory search warrants: Search warrants that police obtain before contraband arrives at the location to be searched.
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Appeal: A request to a higher court to review the rulings or decision of a trial court judge. Decisions by courts of appeal often are made by three judges. Appeals in criminal cases rarely revisit the facts of the case, but rather are mostly concerned with errors of law or procedure. Appellant: The party who brings an appeal to an appellate court. Appellate court: A higher court that reviews the decision of a lower court. (“The appellate court reviewed and overturned the decision of the trial court to exclude the evidence of Officer Neustadt’s use of racial epithets.”) Appellee: The party who responds to an appeal brought by an appellant. Appointed counsel: A lawyer who represents indigent defendants at government expense. Argument: A persuasive presentation by the prosecution or defense to the judge or jury that supports the prosecutor’s or defendant’s case. Arraignment: Often a defendant’s first court appearance, in which the defendant is formally charged with a crime and asked to respond by pleading guilty, not guilty, or no contest. Other matters often handled at the arraignment are arranging for the appointment of defense counsel and the setting of bail or other conditions of release pending final disposition of the case. Arrest: An arrest occurs when the police (or a citizen making a citizen’s arrest) detain a person in a manner that makes it clear she is not free to leave, and continue to hold her for the purpose of bringing criminal charges against her.
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Arrest report: A report prepared by an arresting officer summarizing the circumstances leading to the arrest. (“Julia Daniels went to the police station to obtain a copy of the arrest report so that she could compare her story to the police’s account of her arrest.”) Arson: The unlawful burning of a building. Assault: A crime often defined as either an attempt to batter (unlawfully touch) someone, or intentionally placing a person in fear of an immediate battery. Attempt: Starting but not completing an intended criminal act. Attempts are crimes, often punished less severely than completed crimes. Attorney: Another name for a lawyer. Attorney work product: Legal work, including the lawyer’s research and development of theories and strategies, that is considered to be privileged or confidential and therefore not available for review by the other side. Authenticate: To identify an object at trial. A defense lawyer or prosecutor “authenticates” an exhibit by offering testimony that tells the judge what the exhibit is, where it came from, and its connection to the case. Bail: Money paid to the court to ensure that an arrested person makes all required court appearances. If not, the bail is forfeited. Bail bond: A guarantee given to a court by a bail bond seller to pay a defendant’s bail should the defendant fail to appear in court. The bail bond seller charges the defendant (or whomever obtains the bond) a nonrefundable premium of approximately
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10% of the amount of bail as a condition for making this guarantee. Bailiff: A uniformed peace officer who maintains order in the courtroom and performs other courtroom duties, such as escorting defendants in custody to and from a courtroom, attending to the needs of a jury, and handing exhibits to witnesses. Bar: Initially, a partition in courtrooms dividing the space where judges sit from the area where the public may sit. Typically the term now refers to lawyers as a group. Lawyers are called “members of the bar,” and often belong to professional organizations called “bar associations.” Another meaning of the word “bar” is to prevent something from happening in court. (“Because the defendant did not give early enough notice of his intention to present evidence of an alibi, the defendant will be barred from presenting such evidence at trial.”) Lastly, attorneys may sometimes call a case “the case at bar,” meaning this particular present case, to distinguish it from some past or future case. Battery: The uninvited touching of another person. Battery is usually a misdemeanor, although it becomes a felony if the touching results in—or is intended to cause—serious injury. (“Lorne Cooper committed a battery by striking career counselor Chip Donalds in the face with a leather briefcase.”) Bench: A judge’s courtroom chair and desk. “Bench” is also a substitute term for “judge.” For example, a defendant might ask for a “bench trial,” meaning a trial by a judge without a jury. Best evidence rule: An evidence rule that restricts a witness from orally testifying
to the contents of a document unless the document is produced in court. This rule is also frequently used to require production of the original document rather than a copy. Beyond a reasonable doubt: The burden of proof that the prosecution must carry in a criminal trial to obtain a guilty verdict. Bill of Rights: The first ten amendments to the U.S. Constitution—those primarily dealing with rights of individuals. For example, among those rights guaranteed by the Bill of Rights are the right to remain silent (to not incriminate oneself) and the right to a jury trial. Blue card warnings: The name police use for Miranda warnings in some locations. Booking: The procedure in which a jail records pertinent information, often including a mug shot and fingerprints, about a person who has been arrested and placed in the jail’s custody. Bounty hunter: Person who chases down defendants who have skipped bail, and turns them in. Brief: A legal document, written to the judge by the prosecution or defense, consisting of a persuasive statement of fact and law that supports that side’s position on one or more issues in the case. Can also be used as a verb, “to brief,” meaning to write this type of persuasive statement. (“Judge Shupe asked counsel to brief the issue of whether the police officer’s personnel record should be admitted into evidence, and ordered that their briefs be submitted by 10:00 A.M. the following morning.”) Burden of proof: The requirement that the prosecution convince the judge or jury that the defendant is guilty beyond a reasonable doubt of each and every
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element of the crime(s) charged. In a criminal case the burden of proof always rests with the prosecution, except that, in many states and in federal courts, the defendant has the burden to prove an insanity or alibi defense. Burglary: The crime of breaking into and entering a building with the intention to commit a felony. The breaking and entering need not be by force, and the felony need not be theft. For instance, someone would be guilty of burglary if he entered a house through an unlocked door in order to commit a murder. For more on burglary, see Chapter 12. Business records exception: An exception to the hearsay rule that allows a business document to be admitted into evidence despite its being hearsay if a proper foundation is laid to show that it is inherently reliable. Calendar or court calendar: Cases a particular judge will hear on a given day. (Context of use: “Dorit’s arraignment was on calendar for July 12 at 9:00 A.M.”) Capital crime or offense: A crime that can be punished by death or life in prison. Caption: A heading on all pleadings (legal documents such as the criminal complaint or information and briefs in support of motions) submitted to the court that indicates basic information such as the defendant’s name, the court, and the case number. Case: One meaning for the word case is a criminal action or lawsuit. “Case” also refers to a written decision by a judge, found in books called Case Reporters or Reporters. A party’s case, or case-in-chief, also refers to the evidence that party (either the
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prosecution or the defense) has submitted in support of their position. Certiorari: An order (known as a “writ”) that a higher court (such as the U.S. Supreme Court) will exercise its discretion and review a lower court’s ruling. Challenge: A prosecution or defense request for the judge to excuse (dismiss) a potential juror—or to remove him or herself as judge (called a recusal) because of a conflict of interest. Challenge for cause: A claim made during jury voir dire that a potential juror is legally disqualified from jury service— usually because of factors that would prevent the juror from being fair to one side or the other. Chambers (also called judge’s chambers): A judge’s private business office, often located adjacent to the courtroom. (“Judge Elias asked counsel to meet in chambers to discuss the possibility of a plea bargain before trial.”) Charge(s): Formal allegation or accusation of criminal activity. (“The defendant, Ira Benjamin Rogers, is hereby charged with murder in the first degree.”) Circuit Courts (or Circuit Courts of Appeals): The name used for the principal trial court in many states. In the federal system, appellate courts are organized into 13 circuits. Eleven of these cover different geographical areas of the country—for example, the United States Court of Appeal for the Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The remaining circuits are the District of Columbia Circuit and the Federal Circuit, (which hears patent,
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customs, and other specialized cases based on subject matter). The term derives from an age before mechanized transit, when judges and lawyers rode “the circuit” of their territory to hold court in various places. For more information, see Chapter 23. Circumstantial evidence: Evidence that proves a fact by means of an inference. (“From the evidence that Victor Michaels was observed running away from the scene of a crime, a judge or jury may infer that Victor was the person who committed the crime.”) Citizen’s arrest: An arrest made by a private citizen, in contrast to the typical arrest made by a police officer. Citizen’s arrests are lawful in certain limited situations, such as when a private citizen personally witnesses a violent crime and then detains the perpetrator. City attorney: A lawyer who works for and represents a city, and who in certain circumstances has the authority to bring criminal prosecutions. Civil: Noncriminal. Civil lawsuits are generally between two private parties, whereas criminal actions involve government enforcement of the criminal laws. (“After a car accident in which Bob’s car hit Steve’s car, the state brought criminal charges against Bob for driving under the influence. Later, in a separate civil suit, Steve sued Bob for personal injuries and damages to Steve’s car stemming from the same accident.”) Clear and convincing evidence: The burden of proof placed on a party in certain types of civil cases, such as cases involving fraud. Also, in some jurisdictions, a defendant relying on an insanity defense
must prove that defense by clear and convincing evidence (even though the ultimate burden of proof as to guilt remains with the prosecution). Clear and convincing is a higher standard than preponderance of the evidence, the standard typical in most civil cases, but not as high as beyond a reasonable doubt, the burden placed on the prosecution in criminal cases. Clerk’s office: The administrative office in a courthouse where legal documents are filed, stored, and made available to the public. (“The defendant’s attorney, Lisa Stevens, stopped by the clerk’s office on her way to court to get a copy of the prosecution’s motion to request a witness list.”) Closing argument (also called final argument): A persuasive presentation made by the prosecution and the defense to the judge or jury at the conclusion of a trial, arguing how, given the law and the evidence presented, that particular side should win. (“In closing argument, the public defender convinced the jury that the prosecutor had not proven all the elements of the charges against the defendant beyond a reasonable doubt.”) Common law: Law that judges create in the course of issuing appellate court decisions. Common law is often contrasted with statutory law, which is enacted by legislatures. As a general rule, crimes are defined by statutory law while many aspects of criminal procedure are shaped by the common law—often consisting of U.S. Supreme Court decisions that interpret the U.S. Constitution’s Bill of Rights. Community service: Unpaid work that benefits the community and that may be
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required of a convicted defendant as an alternative to a jail sentence. Complaint: A pleading or legal document prepared by the prosecutor’s office that formally charges the defendant with a crime or crimes. This initial charging document is also sometimes called an information. Concurrent sentences: Sentences for more than one crime that defendants serve at the same time. Confession: A voluntary statement by an accused, orally or in writing, in which the accused admits guilt of a particular crime or crimes. (“After being promised leniency by the police (who did not actually have authority to ensure a light sentence), Colleen O’Larky confessed to having embezzled funds from her employer, Duncan Enterprises.”) Consecutive sentences: Sentences for more than one crime that defendants serve in sequence (that is, one after another). Conspirators: Two or more people who join together to commit a crime. Contempt of court: Behavior, punishable by fine or imprisonment, in court or outside of court, that obstructs court administration, violates or resists a court order, or otherwise disrupts or shows disregard for the administration of justice. Contingency fees: A method of compensating a lawyer for legal services in which the lawyer receives a percentage of the money the client is awarded at the close of a civil trial or by a settlement in a civil case. Contingency fee arrangements are not permitted in criminal cases. Continuance: A delay in a scheduled court proceeding. The prosecution and defense can request a continuance when
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they want the court to postpone a deadline. Contraband: Property that is illegal to possess or transport. Conviction: A finding of guilty following a trial or plea bargain. Corpus delicti: Literally, the “body” of the crime. This Latin phrase refers, for example, to the corpse in a murder case or the burned building in an arson case. Costs (also, court costs): Expenses of trial other than attorneys’ fees, such as fees and costs for filing legal documents, witness travel, court reporters, and expert witnesses. Counsel: Attorneys or lawyers (also called counselors). To counsel means to advise. County attorney: Prosecuting lawyer for county government. Court: A government building where criminal and/or civil cases are heard. Can also mean the judge; for example, if the prosecutor says she does not wish to waste the court’s time, the prosecutor actually means the particular judge to whom the prosecutor is speaking. Court clerk: A court employee who assists a judge with the many administrative tasks of moving cases through the court system. For example, the court clerk may prepare and maintain the judge’s calendar, retrieve case files from the main Clerk’s Office, administer oaths to witnesses during trial, and prepare orders and verdict forms. Sometimes the court clerk is referred to as the “courtroom clerk” to distinguish her function from that performed by the “courthouse clerk.” Court-martial: A military criminal trial. Court reporter: The person who records every word that is said during official court proceedings (hearings and trials) and
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depositions, and who prepares a written transcript of those proceedings upon the request of the judge or a party. (“Judge Ellis ordered counsel to speak slower so that the court reporter, Victoria Shirley, could effectively transcribe what counsel said.”) Credibility: Believability. (“The credibility of witness Joe Pepsi was put in grave doubt when he testified that he only drank Coca-Cola.”) Crime: A type of behavior that has been defined as warranting some type of punishment by the state, usually including imprisonment. Crimes, and the punishments for committing the crimes, are defined by Congress and state legislatures. Criminal: Colloquial for people who commit crimes and referring to courts, attorneys, and procedures that are involved in the process of charging and trying a person for a crime. Cross-examination: The prosecution’s or defense’s opportunity to ask questions of the other side’s witnesses, including the defendant if she chooses to take the stand and testify. (“The prosecutor Kris Dawden cross-examined the maid who said she’d seen the defendant’s car parked in his driveway at the same time the defendant’s ex-wife was murdered.”) Culpability: Guilt. Culpable: Guilty or blameworthy. (“Many people felt there was no doubt that Johnny Miller was culpable in the murder case brought against him.”) Culprit: Can mean either the person accused or the person found guilty of committing a crime. Curfew: A law requiring minors to get off the streets after a certain hour at night.
Custodial interrogation: Police questioning of an arrestee. See Chapter 1. Damages: Money that civil courts award to compensate those who have been injured or lost property through another’s wrongdoing. (Many crimes can result both in criminal penalties and money damages.) Defendant: A person who has been formally charged by the prosecutor or grand jury with committing a crime. In civil cases, the defendant is the party who has been sued by the person initiating the lawsuit (the plaintiff). Defense: (1) A defense(s) is the accused’s answer stating why he should not be found guilty of a crime. For example, an alibi defense is a defense that states that the defendant could not have committed the crime in question because she was physically in a different location from where the crime occurred. (2) The defendant’s team, including the defendant, defense lawyer(s) and her assistants, investigators, etc. Defense lawyer: Person who speaks and acts on behalf of the defendant. Deposition: More common in civil cases and severely limited (in some states prohibited) in criminal cases, a deposition is a pretrial discovery (formal investigation) tool in which a party (or her lawyer) asks a series of oral questions of another party or witness. The questions are answered under oath and transcribed by a court reporter. Determinate sentences: Sentences for fixed terms, such as for “36 months.” Offenders may be released on parole before they have finished serving their sentences. Dicta: Language in appellate court decisions that indicates judges’ attitudes but
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is unnecessary to case outcomes. (Context of use: “The statement in the judge’s written appellate court opinion that drug use is the country’s biggest threat was dicta.”) Direct examination: The initial questioning of a witness by the party (prosecution or defense) who has called that witness. Discovery (in criminal cases): The procedures used by the defense and prosecution to find out before trial what information the other side has and intends to use if the trial takes place. As a general rule, the defense is entitled to discover more information than is the prosecution (because of the Fifth Amendment rule against mandatory self-incrimination), and in all cases discovery is much more limited in criminal cases than in civil cases. Dissenting opinion: An appellate court judge’s written reasons for disagreeing with the outcome of a case. Judges may prepare dissenting opinions in the hope of influencing judges in higher courts or in future cases, or to encourage legislators to change laws. District attorney (also called D.A. or prosecutor): The prosecuting lawyer who works for and represents the local county government in criminal cases. Although district attorneys sometimes also represent state governments, more often such prosecutors are called “state’s attorneys.” Diversion: An alternative procedure in which the case is handled outside of the court instead of under the regular criminal justice procedure. Typically, a person who agrees to be diverted will escape criminal charges altogether if he stays out of trouble for a specific period of time and cooperates
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in whatever rehabilitation activities are made available. Diversion is usually only available for very minor crimes and drug offenses when rehabilitation appears to be possible. Docket: (1) A formal record of all the legal documents that have been filed—and court proceedings and orders that have taken place—in a particular case. (2) A calendar or list of all the proceedings on a court’s agenda. Double jeopardy: A rule from the Fifth Amendment to the U.S. Constitution that prohibits a defendant from being twice put in jeopardy (typically, made to stand trial) for the same offense. There are some exceptions to this rule, and it usually only takes hold when the first juror has been called in a trial. Due process: A constitutional requirement (from the Fifth and Fourteenth Amendments) guaranteeing procedural fairness when the government seeks to deprive people of property, liberty, or life. Elements of a crime (also called legal elements): Component parts of crimes. For example, “Robbery is defined as (1) the taking and carrying away (2) of property of another (3) by force or fear (4) with the intent to permanently deprive the owner of the property.” Each of those four parts is an element that the prosecution must prove to satisfy its burden of proof. Entrapment: The act by police or their agents to induce a person to commit a crime for the purposes of prosecuting that person for that induced crime. For more information, see Chapters 13 and 17. Evidence: Information presented to a judge or jury, including the testimony of witnesses, documents, and exhibits that bear on the question of guilt or innocence.
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Ex parte: One-sided. A contact with the judge by one party outside the presence of the other party is considered an “ex parte contact” and is generally forbidden unless it concerns a routine scheduling matter that doesn’t relate to the substance of the case. Ex post facto law: A law that attempts to punish behavior that was not illegal when the behavior took place; such laws are generally unconstitutional. Excited utterance: An exception to the hearsay rule that finds an out-of-court statement to be inherently reliable if it is made about a startling event while the person making the statement is experiencing that event. Exclusionary rule: A judge-created rule that evidence that police seize illegally is generally inadmissible at trial. Exculpatory evidence: Evidence that points toward a defendant’s innocence. Prosecutors are required to automatically hand over such evidence to the defense, even if the defense doesn’t request it, and a showing that this rule was violated can sometimes result in a conviction being reversed. Exhibit: A tangible object presented to the judge or jury during trial to help the prosecution or defense establish its case. Expert witness: A person who, because of her special knowledge or training, is permitted to offer an opinion about a set of facts when testifying before the judge or jury. Nonexpert witnesses, by contrast, usually may only testify as to their firsthand observations. Expunge: Destroy, erase, blot out. Some states will expunge or destroy arrest records, for example, once a certain number of years has passed following the arrest.
False arrest: A tort (a civil as opposed to criminal wrongdoing) that alleges that a person was unlawfully detained. (“Michael Gleiberman sued Officer Torchin for false arrest some weeks after all charges against Gleiberman were dropped. Gleiberman had obtained evidence that Torchin had no probable cause to arrest. Torchin had only arrested Gleiberman because Gleiberman had been having an affair with the wife of Torchin’s best friend, Marcus Lesser.”) Felony: Serious crime (contrasted with misdemeanors and infractions, less serious crimes), usually punishable by a prison term of more than one year or in some cases by death. People convicted of felonies also frequently suffer other punishments, such as not being able to vote and not being allowed to own or possess a firearm. Fifth Amendment right against selfincrimination: The constitutional right of every person to remain silent when being questioned by the police and—as a criminal defendant—to not take the witness stand at trial or other court proceedings. Forfeiture: Forfeiture laws authorize the government to seize property that was used in connection with certain kinds of criminal activity. For instance, the government may take away the boat a drug dealer used to transport heroin. Forgery: The act of altering or falsifying a document with the intent to defraud someone. For example, Chipeco committed forgery by altering her birth certificate in order to secure a fake ID. Foundation: A set of facts explaining the origin of evidence such as documents and photographs, thereby establishing their authenticity. Before admitting these and
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similar items into evidence, the judge will require that the party trying to admit them establish an adequate foundation. Frivolous motion: A motion that is made without legally valid grounds, such as a motion that is designed solely to delay proceedings. Grand jury: A group of 15–23 citizens selected for court service to decide, based on the prosecutor’s evidence, whether or not there is probable cause to charge a defendant with a crime or crimes. Guilty: (1) One of the pleas a defendant may enter in response to being charged with a crime. A guilty plea admits the charges and subjects the defendant to punishment for them. (2) The state of being found guilty (culpable, the opposite of innocent) by a judge or jury. Habeas corpus: Literally means “you have the body.” A habeas corpus writ (court order) is an order by a court ordering the governmental authority (for example, a prison warden) holding a person in custody to bring that person into court so that the person may challenge the legality of the custody. Harmless error: A trial judge’s mistake that an appellate court decides did not have an impact on a case’s outcome. Hearing: A court proceeding before a judge, typically much shorter than a trial. (“Judge Doherty told her clerk that she had four hearings scheduled before 10 A.M., an arraignment, a preliminary hearing, a hearing on a motion to exclude illegally seized evidence, and an ex parte hearing for the police requesting a warrant for the arrest of one Gil Davids.”) Hearsay: An out-of-court statement offered in court to prove the truth of what
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that statement asserts. As a general rule, hearsay cannot be used as evidence. However, there are so many exceptions to the hearsay rule that many knowledgeable observers comment that “hearsay is admissible unless there is no exception to the general rule.” Holding: The rule for which an appellate court opinion stands. Holding pens or holding cells: Courthouse jail cells (also called lockups and sometimes bullpens) where defendants who are in custody and who are appearing in court are forced to wait. After their court appearance, such defendants are taken back to the regular jail where they are being held. Hostile witness (sometimes called an adverse witness): A witness so hostile to the party who called him or her that crossexamination is permitted. ID: Identification. Can be used as a verb (for example, to ID the perpetrator) or as a noun (for example, the victim made a positive ID). Immunity: Freedom from prosecution. Prosecutors often grant (give) one defendant immunity as an incentive to testify against another defendant. Prosecutors can also force immunized defendants to testify because if they don’t, they can be held in contempt of court. Impanel (sometimes spelled empanel): The act of assembling a panel (group) of prospective jurors for jury selection. Impeach: To discredit. To “impeach a witness’s credibility,” for instance, is to discredit that person’s believability.
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In camera: Court session that is closed to the public, not in open court, often conducted in the judge’s chambers. Inadmissible: When evidence offered by a party is ruled inadmissible by the judge, that means it is not allowed to become a part of the court record and may therefore not be considered as evidence against the defendant. Incompetence to stand trial: Lacking the mental ability to understand or participate in legal proceedings. A defendant may be sane at the time a crime was committed yet incompetent to stand trial, or vice versa. Indeterminate sentences: Sentences for an unfixed period of time, such as “five years to life.” A parole board often decides how long an offender given an indeterminate sentence actually serves in prison. Indigent (indigency): Poor. In criminal cases, the court will appoint a public defender or private lawyer to represent defendants who are so poor that they do not have the money to hire their own private lawyers. In some courts, defendants who have too much money to qualify for a public defender or court-appointed counsel but not enough money to hire a private lawyer may be considered “partially indigent” and allowed appointed counsel for a reduced fee. Information: The term commonly used for the initial document filed in court by the prosecutor that charges a defendant with one or more crimes. Inquest: Investigation. Coroners, fire marshals, and legislative agencies, for example, all may have authority to investigate criminal cases, conducting what are known as “inquests.” (“When arson was suspected at the Grand Theater, the fire
marshal was called in to conduct an inquest to determine the cause of the fire.”) Insanity: A mental disease or defect that sufficiently interferes with a defendant’s ability to control his actions or appreciate the nature of his act that the defendant is not considered to be legally responsible for his criminal acts. Interrogatory: Question. The term “interrogatories” usually refers to a set of questions a party to a lawsuit asks of the other party, witnesses, or other people who might have helpful information during the period of time before trial called “discovery.” Interrogatories are more commonly used in civil cases. Irrelevant: Not related to. Information that is not logically related to the main issues in the case may not be considered by the judge or jury—whichever is hearing and deciding the case—and may not therefore be introduced into evidence. Jail: The place where people convicted of minor crimes and defendants awaiting trial are held in custody. Those convicted of more serious crimes usually end up in prison. Jeopardy: Subject to being convicted of a crime. The Constitution prohibits being twice placed in jeopardy for the same crime. See double jeopardy. Judge: A public officer who presides over court hearings and trials. Sometimes the words “bench” and “court” are used to mean “judge.” Jurisdiction: A court’s geographic power and legal authority to hear a particular type of case. (“In California, the Superior Courts for each county are authorized to grant divorces if at least one of the divorcing
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parties is a legal resident of the county.”) Often the term is used interchangeably with state. (“In some jurisdictions all felonies are initiated by grand jury proceedings, while in other jurisdictions they are initiated by a prosecutor’s information or complaint.”) Juror: A person selected to serve on a jury. Jury: A group of people who decide the facts of the case and render a verdict, typically guilty or not guilty, on specific criminal charges defined by the judge in jury instructions. (See also grand jury.) Jury instructions: Legal rules given by the judge to the jury. The judge typically gets some of these rules from jury instruction books—which contain the standard rules given by other criminal courts in that state— and rules that are custom-drafted by the prosecution and defense for the particular facts of the case. Jury selection: See voir dire. Juvenile: A minor, typically a person under 18, although for criminal law purposes, some states consider juveniles to be 16 and under and decide on a caseby-case basis whether people between ages 16–18 are juveniles entitled to special treatment as such. Juvenile court: Special court where actions involving juveniles are handled. (See Chapter 25 for more on this subject.) Larceny: Another word for theft. Although the definition of this term differs from state to state, it typically means the taking of property belonging to another with an intent to permanently deprive the owner of the property of its possession. (“Joe was originally charged with larceny, but he escaped conviction when he convinced the
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jury that he had just borrowed the car and was intending to return it. He was, however, convicted of joyriding, which doesn’t require an intent to permanently deprive the car’s owner of the car’s possession.”) Law clerk: An assistant to a judge, typically a recent law school graduate, who helps the judge with tasks like researching the issues and drafting court opinions or decisions. Some lawyers also hire law students or recent law graduates whom they call “law clerks” to assist with research, witness interviewing, and other tasks. Lawyer (also called attorney): Person who speaks and acts on behalf of a party. In every state, lawyers are either licensed or certified by a state organization typically consisting of and run by lawyers. With some exceptions, only lawyers may appear in criminal courts to represent defendants. The exceptions consist of programs that allow law students—under supervision of a lawyer—to represent people accused of minor crimes. Lawyers are sometimes called “counsel.” (“Judge Fels announced that she would continue the arraignment so that the accused may consult counsel before entering a plea.”) Leading question: A question that suggests the answer, often a statement asked as a question. (Wanting to make sure the witness provided the right answer, the lawyer asked the witness, “That was your coat tangled in the bush when the murder was committed, wasn’t it?”) Legal Aid lawyers: See public defenders. Lesser included offense: A crime that is made up of some but not all of the elements of a more serious crime. For example, residential burglary (a felony) typically is
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defined as breaking and entering into the home of another with the intent to commit a crime inside. Trespass (a misdemeanor) is the unauthorized entry onto the property of another. Since every burglary necessarily involves a trespass, trespass is a lesserincluded offense of burglary. Liable: A legal conclusion that an offender is civilly responsible for a victim’s losses, the civil equivalent of “guilty” in the criminal justice system. (“Bob not only was convicted of aggravated assault, but he also was found liable civilly and ordered to pay the plaintiff $10,000 in damages.”) Lineup: A procedure in which the police place a suspect in a line with a group of other persons and ask an eyewitness to the crime to pick the person he saw at the crime scene out of the group. If the suspect is selected and later charged with the crime, the fact of the lineup identification may be introduced as evidence. Local rules: Rules adopted by specific courts or specific regions regulating aspects of case administration. Local rules sometimes modify state and federal rules. They can affect how plea bargaining happens, how hearings are conducted, and the procedures used at trial. Understanding them may be critical to presenting an effective defense. Loitering: A crime best understood as just hanging out. (“The police instituted a policy of arresting all those people hanging around the boardwalk after 9:00 P.M., for either curfew or loitering violations.”) L.W.O.P.: A life prison sentence, literally “life without parole.” Magistrate: A court official who acts as a judge in certain (often lower level) court proceedings. (“Officer Edwin Barry went
before Magistrate Talia Nin to request a warrant for Mimi’s arrest.”) Malice: Typically, a willful or intentional state of mind to bring about some injury or wrongdoing. Malice can sometimes be found in other ways, such as where someone’s actions show recklessness (extreme lack of care). To be found guilty of certain crimes, such as murder, the state must prove malice or (for first degree murder) malice aforethought. Manslaughter: The crime of killing a person but without the malice (evil intent) required to classify the killing as murder. Marshal (sometimes spelled marshall): A law officer who is empowered to enforce certain court rulings and orders. The federal government has U.S. marshals, and some states have marshals (similar to sheriffs). Memorandum of Points and Authorities: See brief. A document that cites (refers to) legal authorities such as statutes and court cases, and explains how those authorities support the position advocated by the party who wrote the memorandum. Often written to support a motion. Mens rea: Mental component of criminal liability. Typically, to be guilty of a crime, a defendant must be found to have committed the act (called “actus reus”), and to have the requisite (required) criminal intent or mens rea (mental component such as recklessness or malice). Miranda warning: A warning that the police must give to a suspect in custody before interrogating (questioning) the suspect if the police want to use the suspect’s answers as evidence in a trial. The Miranda warning requires that the suspect be told that she has the right to remain silent, the right to have an
Chapter 27: Looking Up the Law
attorney present when being questioned, the right to a court-appointed attorney if a private attorney is unaffordable, and the fact that any statements made by the suspect can be used against her in court. Misdemeanors: Crimes, less serious than felonies, punishable by no more than one year in jail. (The defense lawyer told the defendant, You were, as you know, originally charged with possession and sale of marijuana, a felony, but I got the D.A. to agree to simple possession, a misdemeanor—time served, a fine, and a couple hundred hours of community service—if you plead today. What do you think?’”) Mistrial: A trial that ends before the full proceeding has been completed because of some prejudicial error or wrong that has occurred. (“When the judge heard evidence that the D.A. had spoken with several jurors during court recesses, the judge declared a mistrial, and the defendant’s case was reset for trial.”) Motion: A request to the court for an order or ruling. Some motions are made orally, others in writing. Depending on the ruling sought, a motion can be made before, during, or after trial. (“The defense made a motion to suppress the lineup based on the grounds that police conduct made the identification impermissibly suggestive.”) Motion for a continuance: See continuance. (“The D.A. and defense lawyer, still engaged in plea negotiations, jointly made a motion to the court for a continuance, which the court immediately granted. The trial was consequently recalendared approximately 45 days later.”)
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Motion in limine: A request for a court order excluding irrelevant or prejudicial evidence in advance of it being offered in open court, typically made in jury trials. Movant: Party making or bringing a motion. Moving party: See movant. Mug shot: Photo taken of the defendant, typically by police, during the booking proceeding after arrest. Mugging: To be mugged has two meanings: (1) to be robbed, or (2) to have your “mug shot” or photo taken during booking. Murder: The unlawful killing of another person when the killing (1) was deliberate and lacked legal justification, or (2) the result of wilful behavior that disregarded the inherent risk to human life (such as shooting a firearm into an inhabited building), or (3) occurred while the defendant was committing an inherently dangerous felony (called the “felony-murder rule”). Most states divide murder into three degrees, with first degree murder being the most serious offense and third degree murder (often called manslaughter) being the least serious of the three. No contest: A plea entered by the defendant in response to being charged with a crime, whereby the defendant neither admits nor denies guilt of the crime, but agrees to submit to punishment (usually a fine or jail time) as if guilty. The reason why this sort of plea is typically entered is that it often can’t later be used as an admission of guilt if a civil trial is held after the criminal trial.
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Nolo contendere: See no contest. Comes from the Latin meaning, “I will not contest it.” Not guilty: A verdict that the defendant has not been proven guilty of the offense charged—issued by a judge or jury after trial. Although a not guilty verdict is often taken to mean that the judge or jury finds the person innocent, it really only means that the judge or jury were unable to find the defendant guilty. Notice: Notification. To give someone notice of a court hearing is to let them know when and where it will take place and other basic information they need to adequately prepare for it. Notice of Motion: A document that notifies an adversary about when and where a motion will be made, what the reason for the motion is, and what supporting documentation will be relied on in making the motion. Objection: Taking exception to or not agreeing with some statement made by or document filed by an adversary. Typically refers to the response the prosecution or defense makes in court when they don’t want some testimony or exhibit admitted into evidence during trial: they then “make an objection.” Off-the-record remarks: Comments by judges and/or lawyers made in court or in other formal settings such as depositions that are intended to be private and therefore do not become part of a case’s official record. Opening statement: A statement made by an attorney or self-represented defendant before the evidence is actually introduced to preview the evidence and set the stage for the trial. Many people think of the opening
statement as a kind of roadmap to the rest of the proceedings. Opinions: Appellate court judges’ written explanations for and justifications of their decisions. O.R. (own recognizance): A way the defendant can get out of jail, without paying bail money, on the defendant’s promise to appear in court when next required to be there. Sometimes called “personal recognizance.” Order: A ruling or decision by a court. A court order can be made orally or in writing. In a judge trial, a verdict of guilty may be written up as a court order. Overrule: Deny. When the judge overrules an objection, the judge denies the objection and the evidence objected to is allowed in. Own recognizance: See O.R. Party (parties): The prosecution and the defendant or defendants are the parties to a criminal case. Percipient witness: A witness who perceived the facts she testifies about. A percipient witness is an ordinary witness, as contrasted with an expert witness who may testify—because of the wittness’s special knowledge or training—about things she did not actually observe. Peremptory challenge: An opportunity to challenge (dismiss or excuse) a potential juror during jury selection without having to give a reason. Parties each get a limited number of peremptory challenges. (“The defense lawyer, Loretta Nay, used one of her three peremptory challenges to excuse (dismiss) Juror number 1, Janet Alan, because of a hunch that Janet would be sympathetic to the police.”)
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Perjury: A crime committed by lying while under oath (while testifying during trial, on a sworn affidavit or in a deposition or interrogatories). Petitioner: A party who makes a formal written request to a higher court asking it to review the ruling of a lower court. Petty theft: Taking property valued less than a certain amount specified by statute (in some states $500). Where the property is worth more than that amount, the crime would be considered “grand theft.” Plea: The defendant’s formal answer to criminal charges. Typically, defendants enter one of the following pleas: guilty, not guilty, or no contest. Although this plea may be entered at any time during the case, or not at all, it usually comes shortly before the case is scheduled to come to trial. Plea bargaining: The negotiation between defense and prosecution (and sometimes the judge) of the settlement of a criminal case. (“Defendant Charlie Keith got a lighter sentence when prosecutor Ronnie Mick agreed to plea bargain the assault charges to disturbing the peace (a less serious offense) in exchange for Keith’s guilty plea.”) Pleading: Written document setting out the criminal charges. Points and Authorities: See Memorandum of Points and Authorities. Prejudice: Bias or discrimination. Prejudicial error: A wrong decision by the judge that in retrospect deprived a convicted defendant of a fair trial and therefore justifies a reversal of the case by an appellate court. (“Judge Pickholtz made a prejudicial error by allowing Officer Janus to describe the cocaine that he had seized from the defendant’s apartment. The
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seizure had previously been found to be an unconstitutional violation of the defendant’s Fourth Amendment rights, and therefore no mention of the illegally-seized evidence at trial should have been permitted. Because the jury’s verdict may have been influenced by the mention of the cocaine, the error was prejudicial and the verdict should be reversed and a new trial ordered.”) Preliminary hearing: A court proceeding in which the prosecution must present enough evidence for the judge to justify holding the defendant to answer for the crime(s), or the case is dismissed. If the case is dismissed, charges may be refiled. Preponderance of the evidence: The burden of proof in most civil actions (amounting to something more than 50%). Contrasted with the much higher prosecution burden in criminal cases, beyond a reasonable doubt. Present sense impression: An exception to the hearsay rule that finds out-of-court statements presumptively reliable and therefore admissible if they are made about an event while or just after the event occurs (since the party making the statements wouldn’t have time to fabricate them). Presentence report: A written summary of an investigation conducted by a probation officer, social worker, or psychologist working to help the judge determine a defendant’s sentence. (“At the direction of Judge Shelly, the probation officer Nettie Solomon prepared a presentence report that included the circumstances of the crime, the defendant’s personal history, including past criminal record, and statements from the victims and one witness.”)
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Presumption of innocence: One of the most sacred principles in American criminal justice, which holds that a defendant is innocent until the prosecution proves each element of the crime charged beyond a reasonable doubt. Pretrial conference: A meeting between the prosecutor, the defense, and (usually) the judge before trial to identify undisputed facts, share witness lists or any other required reciprocal discovery, and sometimes try to settle (plea bargain) the case. Pretrial conferences may be conducted by the judge in or out of court. Pretrial motion: A request to the court made before trial for an order or ruling. Typical pretrial motions include a motion for continuance, motion to strike a prior conviction, motion to exclude evidence that was illegally seized, or evidence of lineup that was unfairly conducted. Prior inconsistent statement: A procedural rule that allows certain out-ofcourt statements to be admitted into evidence for the purpose of discrediting a witness by showing that the witness gave a contradictory account of something on a prior occasion. (“The defense lawyer impeached (discredited) the witness at trial with a prior inconsistent statement the witness made under oath at the preliminary hearing.”) Priors: Past convictions, no matter how old. Privileged: Confidential. (“Counsel objected to the prosecutor’s asking the witness, Dr. Davids, to reveal a discussion he had with his patient, the defendant Madhu Rose, on the grounds that the conversation was ‘privileged.’”)
Privileges: Legal rules and principles that keep certain information confidential and thus out of court or discovery proceedings. Some common privileges include confidential communications made to a spouse, doctor, lawyer, psychotherapist, or clergyperson. Pro bono: Legal services performed pro bono or on a pro bono basis are done for free or a reduced fee. (Comes from the Latin “pro bono publico,” meaning “for the good of the public.”) Because most criminal defendants are entitled to be represented by lawyers paid by the state, few lawyers offer pro bono criminal defense services. However, if the media takes an interest in a case, private lawyers will sometimes step forward and offer pro bono representation because of the media exposure they’ll receive. Pro per (also pro se): Self-represented. A Latin term used by lawyers and court personnel for someone who represents him or herself in court without a lawyer. Pro se (pronounced “pro say”): Same as pro per. Probable cause: Reasonable basis or justification for certain actions by the police that occur early on in the criminal process. Probable cause is more than a mere hunch but not so much as to be convinced beyond a reasonable doubt (the greater standard for conviction at trial). (“Even though Officer Charles was not convinced that Sally Victors murdered Greta Gaspar, the fact that she had the opportunity to do so and owned a handgun of the same type as that used in the murder provided probable cause to arrest Sally on murder charges.”)
Chapter 27: Looking Up the Law
Probative: Probative evidence is evidence that tends to prove or disprove some contested issue. The terms probative and relevant are very close in meaning, but as a general rule evidence that arguably is relevant may still be considered not probative because it doesn’t really help the judge or jury decide contested facts. Procedural law (also called procedure): Laws or rules that govern the method of how a criminal case is administered and tried in court. Procedural rules are contrasted with rules of “substantive law” that define the rights and duties of parties, and the elements of particular crimes and defenses. Prosecution: (1) To prosecute, or the prosecution of a case, means to bring a criminal case against a defendant. (“Upon the capture of the serial killer A. Tilla, D.A. Shelly Shulam announced that her office would prosecute Tilla swiftly and to the limits of the law.”) (2) The prosecution can also refer to the government’s team (the defense team’s adversary). (“Judge Diana Rogers said that after h earing the defense argument on the motion in limine, she wanted to hear the prosecution’s response.”) Prosecutors (often called D.A.s): Lawyers who work for the government to bring and litigate criminal cases. Public defenders (in some jurisdictions called Legal Aid lawyers): Lawyers paid by the state or county to work full time representing indigent or poor clients who are assigned to them by the local courts. Quash: Nullify. (“The prosecutor moved to quash (requested that the judge render null and void) the defendant’s subpoena of breathalyzer calibration records from the lab.”)
597
Rap sheet: A defendant’s arrest and conviction record as maintained by one or more criminal justice agencies. (“At the defendant’s sentencing hearing, the prosecutor argued that the punishment should be severe in part because the defendant’s rap sheet stretches from his arm (held high above the prosecutor’s head) to the floor.”) Reasonable doubt: Lingering doubt following serious consideration of a matter; not just any possible doubt. (“The jury refused to convict defendant Sims, contending that despite significant prosecution evidence, they still had reasonable doubt that he committed the murders.”) Reasonable doubt is the same thing as not being convinced of a defendant’s guilt beyond a reasonable doubt. Rebuttal evidence: Evidence offered to contradict evidence presented by the adversary. Recess: A break in a hearing or trial. Reciprocal discovery: Laws in some states that require the prosecution and defense to exchange certain information before trial, such as lists of all witnesses to be called at trial and reports of any expert witnesses. As a general rule, the prosecution has to give the defense more than the defense has to give the prosecution, because the defense’s right to not turn over evidence is to some extent protected by the Fifth Amendment right against self-incrimination. Reckless (or child) endangerment: A crime consisting of putting another person at risk of serious injury or death. Record: The official written transcript of court proceedings and evidence in a
598 Criminal Law Handbook: Know Your Rights, survive the system
case. When something goes on the record, it appears in the official transcript. If some aspect of the case is off the record, such as a brief procedural question at sidebar (the judge’s bench), it will not appear in the official transcript. Recross-examination: Additional crossexamination of witnesses called by an adversary on redirect examination. Recuse or recusal: When a judge takes herself off a case because of a conflict of interest, the judge is said to recuse herself and the act is considered a recusal. Redact: To delete or cover up part of a document because it refers to inadmissible evidence. Redirect examination: Additional direct examination questions of a witness by the party who called that witness just after that witness has been cross-examined by the adversary. Regulations: Rules made by administrative agencies. Relevancy: A connection or applicability to the issues in the case. Relevant evidence is evidence that helps to prove or disprove some fact in connection with the case. Relief: A party’s desired legal remedy. (“The prisoner sought relief in the form of an order requiring the prison cafeteria to provide vegetarian meals.”) Respondent: The name for the defendant (responding party) in cases where the plaintiff is called a “petitioner.” Response (or Responsive Pleading): A general term for a legal document in which a party responds to an adversary’s pleading, motion, or brief. Retainer agreement: Contract between a lawyer and client.
Sanctions (to sanction): Penalties (often fines) imposed by the court on one or both of the parties for improper conduct during the case. Seal: To conceal from public record. In some instances, for example, a person’s arrest or criminal records may be sealed, meaning without a court order to inspect them they may not be viewed. (“The criminal record of crimes defendant Cyndi Summer committed as a juvenile was sealed.”) Sentence: The full panoply of punishments that a judge metes out in a criminal case. (“Judge Deyda sentenced Defendant Laney Su to five years in state prison after the jury convicted Su on drug charges.”) Sentencing guidelines: Laws that either suggest (permissive) or dictate (mandatory) the sentence a judge is required to give for specific crimes. Standing: To have legal standing is to have a sufficient stake in a legal dispute to have a right to go to court and ask for legal relief. (“The passengers in Rich’s car did not have standing to complain about the way that the police officer searched Rich’s pockets.”) Statute: Law enacted by a legislature, often contrasted with common law (judgemade law). Statute of limitations: The legal time limit in which criminal charges can be filed against a defendant for a particular crime. A few crimes, such as murder, do not have a statute of limitations, and the statute of limitations for criminal acts against children typically is much longer than for crimes against adults.
Chapter 27: Looking Up the Law
Stipulation: An agreement between parties. For example, the prosecution and defense may stipulate to the admissibility of certain testimony or an exhibit. (“Defense and prosecution lawyers met to negotiate a plea bargain and stipulated to continue the next scheduled court hearing to permit further discussions.”) Stop and frisk: A police officer’s brief and limited pat down of a person’s outer clothing; an intrusion that is less invasive than a full-scale “search.” Strike: To delete testimony from the official court record. (“In the rape trial of defendant, when the witness began recounting the victim’s past sexual history, the prosecutor immediately moved to strike the witness’s testimony, and the motion was granted.”) S.U.: Straight up. When a prosecutor writes “s.u.” on a defendant’s file, it may mean the prosecutor will not plea bargain the case. Subpoena (subpena): A court order compelling someone to appear in court. Subpoena duces tecum: A court order compelling someone to appear in court and bring along with them certain tangible objects or documents. Substantive law: Rules defining crimes and rights and duties of parties (as opposed to procedural laws, which govern case administration). Suspended sentence: A sentence (punishment) that the judge hands down but does not require the defendant to serve right away or at all if certain conditions—such as successfully completing probation—are met.
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Sustain: Uphold. When a judge sustains an objection, it is upheld and the evidence objected to is not allowed in. Testify: To give testimony. Testimony: Evidence given under oath, in court or in a deposition. Time served: The time a defendant spends in jail awaiting resolution of his or her case. If convicted, the time served may be credited toward the ultimate sentence. Tort: A legal claim of civil (noncriminal) wrong (other than a breach of contract), often referred to as a personal injury. Some actions, such as assault and battery, can be both crimes and torts. Transcript: A written record of a court proceeding or deposition. Treatise: A legal reference book, usually covering an entire legal subject. (“As part of preparing the defense case, the defense lawyer consulted a respected treatise on drunk driving defense.”) Trial: The in-court examination and resolution of a criminal case. (“My lawyer, Kate Johnson, told me that my case probably won’t go to trial because more than 90% of criminal cases are settled by plea bargains before they go to trial.”) Trial notebook: A notebook or binder lawyers set up to help them organize their case. U.S. attorneys: Prosecutors for the federal government. Vacate: To overturn a lower court’s decision. (“The state Supreme Court vacated the guilty verdict after deciding that the trial judge had not allowed the defendant a sufficient opportunity to cross-examine the police officer.”)
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Venue: The geographic area in which a court has authority to hear a case. Verdict: The jury’s (or judge’s in a judge trial) final decision in a criminal case: guilty or not guilty. Voir dire: The process of questioning and selecting a jury. The judge, the prosecution, and the defense all question potential jurors for the purpose of deciding whether the jurors will render a fair verdict. Waive: Give up. (“Marguerite Lorenzo waived her right to a jury trial after deciding a judge would likely be more sympathetic than a jury would be to her defense that the breathalyzer machine malfunctioned.”) Waive time: Give up one’s rights to have a criminal case against him be prosecuted according to speedy trial rules. (“My lawyer said I should waive time, that it’s routine to do so, and that I will not suffer any ill consequences by doing so.”)
Warrant: Order from a judge or magistrate authorizing the police to arrest someone (arrest warrant) or to search a particular location for evidence (search warrant). White collar crime: A name for a type of crime that typically involves money or property gotten through deception, including fraud, forgery, embezzlement, counterfeiting, and computer tampering. Witness: A person who testifies in court. Wobbler: A crime that can be charged as either a misdemeanor or a felony. Writ: A court order directed by a higher court to a lower court or governmental official ordering some type of action to be taken. ■
Index
A Absence, being tried “in absentia,” 347 Accessory after the fact, 255 Accessory before the fact, 254 Accomplices, 252–54 testimony by, 255 ADA protections for prisoners, 553 Adjudication, 524 Administrative regulations, researching, 577–78 Admission of petition, 524 Admissions by the defendant, 375 “Admit and explain” story, 230–31 Adults, trying juveniles as, 532–35 Aggravating factors and harsher sentences, 461–62 Aiders and abettors, 254 Airports, warrantless searches in, 69 Alibi defense, 295–96 Allegheny Academy, 538 Allocution, 463, 467–68 All-purpose judge system, 9 Alternate jurors, 433 Alternative sentences, 479–80 Americans with Disabilities Act, 553 Appeals, 490–95 brief for, 495 defined, 490 of diversion program denials, 145 “good trial record” for, 492–94 juvenile offenders, 540 length of appeal process, 492
summary of process, 500 time for filing, 491–92 writ compared to, 496 Appellate courts, trial courts compared to, 205 Argumentative questions, 380–81 Arraignments, 215–25 delay due to bail and release, 216 dismissal of case at, 219–21 DUI cases, 511 pleas made at, 218, 222 procedures, 217–18 self-representation at, 223–25 speedy arraignments, 215 timing of, 215–23 trial compared to, 216–17 Arrest, 74–89 Arrest Report sample, 89 citation procedures, 76 citizens’ arrests, 86–88 consequences of, 74 Constitutional limits on, 76 custody order (for juvenile), 524 general legal principles, 75–79 improper arrests, 78–79 material witnesses, 75 probable cause and, 77–78 use of force, 83–86 warrantless arrests, 80–82 warrantless searches incident to, 53–55 warrants for, 79–80 Assertions of state of mind, 375–76 Assuming facts not in evidence, 381
602 Criminal Law Handbook: Know Your Rights, survive the system
Attorneys. See Defense attorneys; Prosecutors Attorney work product, raw information distinguished from, 306–7 Automatic transfer laws, 533 Autos. See Motor vehicles
B BAC. See Blood alcohol content Backyard privacy, warrantless searches and, 65–66 Badgering the witness, 380–81 Bail, 114–24 amount of, 116–20 changing amount of, 122 conditions of bail, 122–23 court-financed, 115 failure to appear in court and, 123 limits on amount of, 121–22 lowering of, 120–21 minors have no right to, 528 Motion to Reduce Bail, 396 posting and arraignment delays, 216 serving time instead of, 123–24 what is accepted as, 114 Bail bonds cash bail compared to, 115 collateral for, 114 Bailiff, duties of, 206 Bankruptcy fraud, 276 Bar, in courtroom, 202 Battered wife syndrome, 295 Behavior in court, 210–11 Bench, in courtroom, 202–3 Beyond a reasonable doubt, 341 Bill of Particulars, Motion for, 397 Biological or chemical weapons, possessing, 274 Blended sentences for minors, 539 Blood alcohol content (BAC) illegal per se laws and, 503 refusing to take a test, 506 tests for, 505, 507 Body searches, booking process and, 112
Booking process, 111–14 Borders, car searches near, 63 Boston Offender Project, 538 Briefs, appellate, 495 Burden of proof in juvenile cases, 531 prosecutor’s, 340–42 Burglary, 264–67 Business records, exceptions to hearsay rule, 376
C California Evidence Code, 363 Cameras (closed-circuit) in dressing rooms, 68 Camp for juvenile offenders, 524 Carelessness and mens rea, 246–47 Cars. See Motor vehicles Case files, 206 Case law, researching, 575–77 Case loads, public defenders and, 158–59 Cash bail, bail bond compared to, 115 Chain of custody, and evidence rules, 378–79 Challenges for cause, 432, 433 Challenging potential jurors, 432–34 Chambers, of the judge, 203 Change of Venue, Motion for, 398 Character evidence rules about, 369–70 witnesses and, 371 Charges civil compromise instead of, 138 Criminal Complaint sample, 147–48 criminal records and, 139, 140 deciding not to file, 137–38 deciding on, 133–34 dismissal of and agreement not to sue, 136 dismissing by prosecutor, 139 mechanics of charging, 139–42 Motion for Bill of Particulars, 397 Motion to Reduce Charges, 397–98 overcharging, 141–42 plea bargains, 409
Index
political considerations and, 135 statutes of limitations, 131–32 time for charging after arrest, 133 victim’s influence on, 136 who decides on, 132–33 See also Dismissal of charges Checkpoints, 59 Child custody rights, of prisoners, 555 Children consent to search and, 51 mens rea (guilty mind) and, 247, 522 See also Sexual assault cases Child support payments, prisoners and, 555 Chokeholds, 86 Citation procedures, 76 Citizens’ arrests, 86–88 Civil compromise, 138 Civil forfeiture proceedings guilty pleas and, 153 not treated as double jeopardy, 476 Civil tort actions criminal cases compared to, 129–30 double jeopardy and, 359 for improper arrest, 79 for questioning by police, 16–17 Clerks. See Courtroom clerks Client-centered decision making, defense attorneys and, 185–91 Closed-circuit cameras in dressing rooms, 68 Closing arguments, 444–45 Coercion involuntary confessions and, 30 involuntary consent to search and, 48–49 Common law, researching, 575–77 Communication between attorney and client, 191–92 Community service, 478–79 Competence to stand trial, 299 Competent clients, 194–95 “Complete denial” story, 230 Concealment and white collar crimes, 280
603
Concurrent jurisdiction, state and federal, 9 Concurrent sentences, 471–72 Conditions of bail, 122–23 Confessions “confession” story, 230 intoxication or mental limitations and, 31 involuntary, 30 Confidential information, evidence rules, 387–90 Confidentiality, attorney-client relationship and, 181–85 Conflict of interest attorney’s duty of loyalty, 168–70 public defenders and, 157 Consecutive sentences, 471–72 Consent searches, 46–51 admissibility of evidence seized, 47 intimidated by police, 49–50 involuntary consent, 48 landlord and, 50 limited consent, 49 right to refuse, 47–48 shared residence and, 50 Conspirators, 256–58 Constitution. See U.S. Constitution Constitutional law, researching, 577 Contingency fees, 166–67 Court-appointed attorneys, 154–60 for minors, 530 See also Defense attorneys Court-appointed psychiatrists, 298 Court cases, researching, 575–77 Court-financed bail, 115 Courthouse, organization of, 199–200 Court reports, 206 Courtroom behavior in, 210–11 layout and organization, 200–203 Courtroom clerks Clerk’s Office, 199 duties of, 205–6 obtaining help from, 571 Credit card fraud, 276
604 Criminal Law Handbook: Know Your Rights, survive the system
Crimes, 130–31 Crime Scene, Motion to Allow Jury to View, 401 Crime victims. See Victims Criminal cases, civil cases compared to, 129–30 Criminal complaints, 139, 147–48 Criminal defense lawyers. See Defense attorneys; Private defense attorneys Criminal procedure rules, finding, 569 Criminal records charges and, 139, 140 consequences of having, 458–59 juvenile court proceedings, 539–40 Motion to Strike a Prior Conviction, 398–99 obtaining, 311 sealing (expungement), 460 Cross-examination of witnesses, 441–42 Cruel and unusual punishment, 457, 545 “CSI” effect, 385 “Custodial” questioning requirement, Miranda warning, 24–25 Custody order, 524 Cyber sleuthing, 275 Cyberterrorism, committing, 274
D Day fine, 474 Deadlocked jury, 450 Deadly force, 84–86 citizens’ arrests and, 87 Death penalty, 481–87 Defense attorneys for appeals, 490 case-in-chief, 442–43 client-centered decision making, 185–91 communicating with client, 191–92 competent clients, 194–95 confidentiality, 181–85 court-appointed, 154–60 courtroom duties, 208–9 defendant’s right to, 352–55
for DUI cases, 510–11 duty of loyalty, 168–70 and guilty clients, 192–94 incompetence and conviction, 354–55 as legal coaches, 175, 571 minors’ right to, 529–30 need for, 151–54 perjured testimony and ethics rules, 235 presence at lineup, 101–2 presentence reports and, 466–67 private attorneys, 160–70 state and federal systems, 9 “Waiver of Attorney” at lineup, 102–3 Defenses to charges alibi, 295–96 entrapment, 302 guilt not proved, 285–89 insanity, 296–300 intoxication, 300–301 jury nullification, 302–4 partial defenses, 289–92 self-defense, 292–95 Defense strategy, 229–40 “admit and explain” story, 230–31 coaching to develop story, 235–37 “complete denial” story, 230 “confession” story, 230 defendant’s version of events, 229–33 honesty and, 238–40 ignoring defendant’s version of events, 237–38 perjury and, 233–35 Delayed Miranda warning, 26 Denver Project New Pride, 538 Depositions, prosecution witnesses, 318 Derivative criminal responsibility, 252–58 Detention order, 524 Dictionaries (legal), 571–72 Diminished capacity as partial defense, 300 Direct examination of witnesses, 438–39 Disclose Identity of a Confidential Informant, Motion to, 399
Index
Discovery process, 306–13 attorney work product distinguished from, 306–7 finding harmful information, 309–12 finding helpful information, 307–9 Motion for Discovery, 399 overview, 306–7 reciprocal discovery, 312–13 Dismissal of charges and agreement not to sue, 136 at arraignment, 219–21 Motion to Dismiss after prosecutor ends case, 286, 402, 442 Motion to Dismiss Based on Improper Jurisdiction, 397 Motion to Dismiss for Vagueness, 397 by prosecutor (nolle prosequi), 139 Disposition, 524, 535–40 Dispositional hearing, 524 Diversion programs, 144–46 DNA evidence, 384 DNA tests, to challenge conviction, 563 Document authenticity, evidence rules, 386 Domestic terrorism, committing, 273–74 Domestic violence, battered wife syndrome, 295 Double jeopardy, 357–59, 402–3 Dressing for court, 210 Driving under the influence (DUI), 502–11 case examples, 511–18 checkpoints, 59 conviction and driving privileges, 505 illegal per se laws, 503 overview, 502–3 plea bargaining and, 504 refusing to answer questions, 16 sentences, 509–10 tests for sobriety, 505–7 trials for, 508 Driving While Black, 61 “Dropsy” cases, 52 Drug courts, 481
605
Drug tests federal job applicants, 67 pregnant women and, 67 public school students, 66–67 Drunk driving. See Driving under the influence Due process of law defendant’s right to, 337–40 Due Process clause, 285 DUI/DWI. See Driving under the influence Duty judges, 116 Dying declarations, 375
E Eighth Amendment, cruel and unusual punishment, 457, 545 Embezzlement, 276 Emergency (exigent) circumstances warrantless arrests and, 82 warrantless searches and, 63–64 Employers, warrantless searches and, 51 Encyclopedias (legal), 572–73 Entrapment defense, 302 Evidence consent searches and, 47 DUI trials, 508 illegal seizure of, 38–41 jury nullification and, 304 Motions in Limine, 400–401, 435–36 Motion to Preserve Evidence, 399 Motion to Suppress, 400 nontestimonial evidence, 99 in rape cases, 263 rebuttal evidence, 443 self-defense claims and expanding scope of, 294 Evidence minitrial, 365 Evidence rules, 363–90 content of testimony, 367–79 limiting instructions, 365–66 manner of testimony, 379–82 overview, 363–66
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privileged (confidential) information, 387–90 researching, 570 scientific evidence, 382–87 Excessive force, 86 Excited utterances, 375 Exclusionary rule evidence seized illegally, 38–39 improper arrests, 79 knock and notice violations, 46 Exculpatory information, prosecutor’s duty to disclose, 307 Exigent circumstances warrantless arrests and, 82 warrantless searches and, 63–64 Expert testimony, evidence rules, 377–78 Expungement, 460 juvenile court records, 540–42 Eyewitness identification, 93–107 lineups, 98–103 mistaken identifications, 96–97 motions to suppress, 105–6 photo identifications, 104–5 pretrial procedures overview, 93–95 psychology of, 96–98 showups, 103–4
F Fact-finding hearing, 524 Failure to appear in court, and bail, 123 Federal Rules of Evidence, 363 Federal system Patriot Act expands agents’ power, 274–75 sentencing procedures, 462 state system compared to, 9 Felonies, 131 charging process, 139 “Feloniously,” 251–52 Felons, consequence of being, 458–59 Fields around rural house, warrantless searches and, 66
Field sobriety tests (FSTs), 505, 507 Fifth Amendment, 144, 337–38 double jeopardy clause, 357 Final judgment rule, 491 Financial assistance to terrorist organization, giving, 274 Financial Eligibility Questionnaire, for courtappointed attorney, 154–55 Fines, 474–76 Fingerprints booking process and, 112 fingerprint evidence, 386–87 Fitness hearing. See Transfer hearings Force when making arrests, 83–86 Forensic pathologists, 387 Form books, 573–74 Foundational evidence, 365 Fourth Amendment arrest limitations, 76–78 provisions of, 37–38 search and seizure limits, 337 text of, 37 Fraud schemes, avoiding, 280–81 Free legal assistance, 157 Frisk, search compared to, 57 FSTs (field sobriety tests), 505, 507
G General acceptance rule, scientific evidence, 384 Glossary criminal law terms, 579–600 juvenile court terms, 524 “Good trial record” for appeal, 492–94 Government records, exceptions to hearsay rule, 376 Grand juries discovery and transcripts, 311 felony indictment and, 139 Fifth Amendment privilege, 144
Index
overview, 142 proceedings of, 142–43 prosecutor’s advantage at, 328–29 testifying before, 143 Grand theft, 269 Grant of clemency, 481, 562–63 “Great Writ” (habeas corpus), 497–98 Guest in the home, privacy protections for, 55 Guidelines Manual, federal sentencing, 462 Guilt, prosecution’s failure to prove, 285–89 Guilty defendants, defense attorneys and, 192–94 Guilty mind. See Mens rea Guilty pleas at arraignment, 218, 222 hidden costs of, 153 nolo contendere plea compared to, 410
H Habeas corpus, 497–98 Hallway hearings, motions, 395 Handwriting analysis, evidence rules, 386 Hate crimes, 271–73 Health screening, booking process and, 113 Hearsay confrontation clause and, 346 evidence rules, 372–76 inadmissibility exceptions, 375–76 High-speed car chases, deadly force and, 86 Home repair fraud, 276 Homicide, 258 Hotel room, warrantless searches and, 51 House arrest, 480 Hung jury, 450 Hypnosis, evidence rules, 385
I Identification requests by police, refusing, 13–14 Illegal immigrant checkpoints, 59 Immigrant detention, 275
607
Immunity for testimony, 345 Imperfect self-defense, 294 Implied consent laws, DUI cases and, 506 Incarceration, 469–74 See also Jails; Prisons Income tax crimes, 277 Incompetence of attorney, 354–55 Infant, 524 Informants, Motion to Disclose Identity of a Confidential Informant, 399 Infractions, 131 Innocence Project, 563 Innocent people, answering police questions and, 17–19 Insanity defense, 296–300 Insider trading, 276, 277 “Intelligence Court,” 275 Intentionality “knowing” or “knowingly,” 247–49 lack of as partial defense, 290 “malicious,” 250 and mens rea, 245–46 specific intent crimes and, 249–50 “willfully,” 250–51 Interpreters in court, 207 Interrogation. See Questioning by police Intoxication confessions and, 31 as partial defense, 300–301 Intoxication and driving. See Driving under the influence Investigators, interviewing prosecution witnesses, 317–18 Investigatory checkpoints, 59 Involuntary confessions, 30, 338–39 Involuntary consent to a search, 48 Involved, juvenile court, 524 Irresistible impulse, insanity defense, 297–98
608 Criminal Law Handbook: Know Your Rights, survive the system
J Jails minors put in, 529 overcrowding and early release, 472–73 prison compared to, 470–71 private jails, 480 Judges addressing of, 211 duties of, 203–5 duty judges, 116 reasons for choosing trial by, 429–31 state and federal systems, 9 Junk science, 383 Jurisdiction, state and federal, 9 Jury box, in courtroom, 202 Jury consultants, 434 Jury instructions, lesser crime instruction, 291–92 Jury nullification, 302–4 Jury trials alternate jurors, 433 challenging potential jurors, 432–34 deadlocked jury, 450 defendant’s right to, 351–52 deliberations and verdict, 448–51 duties of jurors, 207–8 instructing the jury, 446–48 juvenile courts and, 531 lesser crimes and, 290–92 minors tried as adults, 534–35 misconduct during trial, 448–49 Motion to Allow Jury to View the Crime Scene, 401 “penalty” for choosing, 430 reasons for choosing, 429–31 rules for, 451 sequestering jurors, 449 voir dire process, 431–35 Juvenile courts and procedures, 521–42 adults, trying juveniles as, 532–35 appeals and altering a decision, 540 filing of charges, decisions about, 524–27 glossary of terms, 524
history of, 521–22 jurisdiction of, 523 paternalism of, 522 rights of minors, 527–31 sealing court records, 540–42 sentencing (disposition) options, 535–40 Juvenile hall, 524
K Knock and notice laws arrests and, 83 searches and, 46 “Knowing and intelligent” plea, 416–18 “Knowing” or “knowingly,” 247–49
L Landlords, consent searches and, 50 Larceny (theft), 268–71 Law librarians, 570–71 Law libraries, 578 Lawsuits. See Civil tort actions Lawyers. See Defense attorneys; Prosecutors Legal coaches, 175, 571 Legal research administrative regulations, 577–78 constitutional law, 577 court cases, 575–77 dictionaries, 571–72 DUI laws, 511 encyclopedias, 572–73 evidence rules, 570 form books, 573–74 law libraries, 578 local court rules, 569 numbering system for reporters, 576 online resources, 578–79 people who can help, 570–71 practice guides, 574 procedural rules, 569 state vs. federal crimes, 569
Index
statutes, state and federal, 574–75 substantive law, 566–68 Lesser crimes, jury and, 290–92 Licenses (professional/business), incarceration and, 554 Lie detector tests evidence rules, 384–85 suspects should refuse, 19 Limiting instructions, evidence, 365–66 Limits on arrests, 76 Lineups, 98–103 defense attorney’s presence at, 101–2 sequential lineups, 98 suspect may demand, 99 suspects required to participate, 99 unfair procedures, 100–101 “Waiver of Attorney” at, 102–3 who may be present, 98 Local court rules, finding, 569 Loitering laws, 15–16 Los Angeles Juvenile Traffic Court, 538 Lost property and theft, 269–70 Lying to the police, 20
M Malice aforethought, murder and, 258 “Malicious,” 250 Mandamus, writ of, 499 Mandatory sentences, 458 Manslaughter, 259–62 Martindale-Hubbell, 162 Mass transit systems, warrantless searches in, 69 Material witnesses, arresting, 75 Media rights public trials, 348–49 restrictions on, 350–51 Megan’s Law, 480 Memorandum of Points and Authorities, 400 Mens rea (guilty mind), 244–47 accomplices and, 253–54
609
children and, 247, 522 See also Intentionality Mental limitations, confessions and, 31 Mercy rule, character evidence, 369–70 Minute Order form, 537 Miranda warning arrestees and, 20–22 “custodial” questioning requirement, 24–25 delayed warning, 26 dismissal of case and, 24 effects of, 27–29 failure to give, 22 inadmissible statements, 23–24 minors and, 529 the Miranda case, 22 obtaining without giving, 22–23 people not in custody and, 17 private individuals as police agents, 29 waiving rights to, 27 Misdemeanors, 131 criminal complaint filing, 139 sample of criminal complaint, 147–48 Misquoting witness testimony, 381 Mistake of law vs. mistake of fact, 246 Mistakes and mens rea, 245–46 Mistrials, deadlocked juries and, 450 Mitigating factors and lighter sentences, 460 M’Naghten rule, insanity definition, 297 Money laundering, 276 Motions, 393–405 to Allow Jury to View the Crime Scene, 401 for Bill of Particulars, 397 for Change of Venue, 398 to Disclose Identity of a Confidential Informant, 399 for Discovery, 399 to dismiss after prosecution presents case, 286, 402, 442 to Dismiss Based on Improper Jurisdiction, 397 to Dismiss for Vagueness, 397 to Examine Police Officer’s Personnel File, 399–400
610 Criminal Law Handbook: Know Your Rights, survive the system
hallway hearings, 395 Motions in Limine, 400–401, 435–36 for a New Trial, 403, 404 to Preserve Evidence, 399 pretrial motions, 396–400 procedures, 393–96 to Reduce Bail, 396 to Reduce Charges, 397–98 for a Speedy Trial, 400 stipulations instead of, 395 to Strike a Prior Conviction, 398–99 to Strike Testimony, 401–2 to Suppress, 400 suppress identifications, 105–6 after trial, 402–5 during trial, 400–402 verdict, changing, 403, 404–5 Motive, 252 Motor vehicles car and occupant searches, 58–63 high-speed car chases, 86 police officers shooting into, 84 See also Driving under the influence (DUI); Traffic violations Mug shots for photo identifications, 104–5 taken during booking, 112 Murder, 258–59
N NAA results, evidence rules, 385–86 Narcotics checkpoints, 59 National Security Administration, warrantless searches and, 65 Negotiation strategies, for plea bargains, 419–23 Neutron activation analysis, evidence rules, 385–86 New Trial, Motion for, 403, 404 No-bill, 142 No contest plea. See Nolo contendere plea Nolle prosequi, 139
Nolo contendere plea at arraignment, 218, 222 effect of in criminal cases, 224 guilty plea compared to, 410 plea bargain and, 410 Nontestimonial evidence, 99 Notice of Motion, 393–95 Nullification by judge, 303 by jury, 302–4
O Oath to tell the truth, 439 On-the-street questioning by police, 13 Opening statements, 436–37 O.R. release, 124–26 Out-of-court statements, and hearsay rules, 372–76 Overcharging, 141–42 Overcrowding and early release, 472–73 Own Recognizance Release, 124–26
P Panel attorneys, 156–60 See also Defense attorneys Pardons, 481, 562–63 Parole, 481, 560–62 Parolees, arrests and, 78 Partial defenses, 289–92 diminished capacity and, 300 intoxication, 300–301 Patriot Act new crimes created by, 273–75 warrantless searches and, 65 Perjury defendant’s version of events and, 233–34 defense attorney and, 235 witnesses and, 439 Personal knowledge rule, and testimony, 368–69
Index
Personnel files, Motion to Examine Police Officer’s Personnel File, 399–400 Petition, juvenile court, 524 Petty offenses, 131 Petty theft, 269 Photo identifications, 104–5 Pigeon drop schemes, 280 Plea bargains, 409–23 advantages and disadvantages, 410–14 attorney-client decisions about, 187–88 charge bargaining, 409 disregarded by sentencing judge, 457 DUI cases, 504 incentives for, 410–12 “knowing and intelligent” plea, 416–18 negotiation strategies, 419–23 probation revocation charge, 478 procedures for, 414–18 prosecution and, 412–13 sentence bargaining, 409 “standard deal,” 420 time for making, 409–10 Pleas at arraignment, 218, 222 attorney-client decisions about, 188–90 plea bargains and, 410 Police dogs, traffic violation stops and, 63 Police officers Motion to Examine Police Officer’s Personnel File, 399–400 state and federal, 9 See also Questioning by police Polygraph evidence, 384–85 Postconviction remedies. See Appeals; Writs Practice guides, 574 Preadjudication detention or release, 528 Preemptory challenges, 432, 433 Pregnant women, drug testing of, 67 Preliminary hearings, 324–34 defendant’s rights during, 329–31 description of, 325 outcomes of, 326
611
rules during, 326 strategies at, 332–34 as substitute for trial, 327 time for, 324–25 trial compared to, 325–26 waiver by defense, 334 Prescribed sentences. See Statutory sentencing provisions Presentence report, 464–67 Pretrial motions, 396–400 Principals, 254 Prior inconsistent statements, 376 Priors. See Criminal records Prisoners’ rights, 545–55 attacks by other inmates, 548–49 child custody rights, 555 child support, 555 courts, access to, 556–59 exercise of religion, 547 food, withholding, 548 lawsuits, 556–59 legal resources, 555–59 mail privileges, 552 marriage while in prison, 553 medical treatment, 547 outdoor exercise, 549 physical force used by guards, 548 reasonable accommodation rights, 553 rehabilitation of inmates, 551 search and seizure, 549–50 security classification status, 546–47 transfers between facilities, 551–52 violations of prison rules and, 555–56 visitation rights, 550–51 voting rights, 554 working in prison, 553–54 Prison Litigation Reform Act (PLRA), 559 Prisons adequate conditions at, 545–46 conditions as cruel and unusual, 457, 545 jail compared to, 470–71 mistreatment in, 474 number of people in prison, 546
612 Criminal Law Handbook: Know Your Rights, survive the system
overcrowding and early release, 472–73 Privacy, legitimate expectation of, 38 Private defense attorneys, 160–70 changing, 167–68 cost of hiring, 165–66 duty of loyalty, 168–69 locating, 161–64 negotiating reduced fee, 168 Retainer Agreement (sample), 176–78 retainer fee, 166 Private individuals as police agents, for purposes of Miranda, 29 Private investigators, interviewing prosecution witnesses, 317 Private security guards arrest powers of, 88 searches by, 68 Privileged (confidential) information, evidence rules, 387–90 Probable cause arrests and, 77–78 searching a car and occupants, 62–63 searching and arresting minors, 528 search warrants and, 42–43 warrantless arrests and, 81–82 Probable cause hearing. See Preliminary hearings Probation, 476–78 for juveniles, 536–37 Probationers arrests and, 78 warrantless searches of, 68–69 Probation officers, presentence report prepared by, 464–66 Probation revocation hearing, 478 Procedural due process, 337 Procedural rules, finding, 569 Prohibition, writ of, 498–99 Pro per defendant, 208 See also Self-representation Prosecution’s burden of proof, 340–42 Prosecution witnesses attacking testimony of, 286–87
interviewing by defense, 316–19 See also Witnesses Prosecutors case-in-chief, 437–38 death penalty charging decisions, 484–85 incentives for plea bargains, 412–13 rebuttal evidence offered by, 443 state and federal, 9 See also Charges Psychiatrists, insanity defense and, 298 Public defenders, 155–60, 530 See also Defense attorneys Public restrooms, privacy rights, 67 Public school officials drug testing requirements, 66–67 searching students, 66 Public trial rights, 348–51
Q Questioning by police arrestees, 20–31 people not in custody, 13–20
R Rape, 262–64 in prison, 549 See also Sexual assault cases Rape shield laws, 263, 372 Reasonable accommodation rights of prisoners, 553 Receipts for personal property, taken during booking, 112 Receiving stolen good, 270–71 Recording statements made to police, insisting on, 19 Redirect examination, 441–42 Reduce Charges, Motion to, 397–98 Referee, 524 Rehabilitation of inmates, 551 Release O.R., 124–26
Index
Relevance and evidence admissibility, 367–68 Remorse, sentencing and, 466 Reporters for case law, 576–77 Reporting a crime, duty to report, 14 Respondent, juvenile court, 524 Restitution, 474–75 Retainer fee private defense attorneys, 166 Retainer Agreement (sample), 176–78 Reverse transfer hearings, 533 Revocation of probation, 478 Robbery, 267–68 Robbery case, sample prosecution, 4–8 Roving wiretaps, 274
S “Same offense,” double jeopardy and, 358 Scared Straight program, 536 Scientific evidence, evidence rules, 382–87 Sealing arrest and conviction records (expungement), 460 juvenile court records, 540–42 Search and seizure, 37–71 Affidavit for Search Warrant, 70 car and occupant searches, 58–63 consent searches, 46–51 constitutional background, 37–41 emergency (exigent) circumstances, 63–64 illegal seizure of evidence, 38–41 minors and, 528 miscellaneous types of warrantless searches, 64–69 plain view doctrine and, 51–52 prisoners and, 549–50 search warrants, 41–46 Search Warrant (sample), 71 “sneak and peek” searches, 275 stop and frisk searches, 55–58 warrantless searches incident to arrest, 53–55 Search warrants, 41–46 anticipatory warrants, 42
613
described, 41–42 invalid warrant and validity of search, 43–44 items not listed in warrant, 44–45 knock and notice laws, 46 probable cause and, 42–43 Securities fraud, 276 Self-defense claims, 292–95 Self-incrimination, grand juries and, 144 Self-representation, 170–75 appeals and, 491 at arraignment, 223–25 plea bargaining and, 421 as pro per defendant, 208 qualified right to, 355 sentencing hearings and, 464 untruthful testimony, 234 version of events, developing, 232–33 Sense-enhancing technology, warrantless searches and, 67–68 Sentencing, 456–87 aggravating factors and, 461–62 allocution, 463, 467–68 alternative sentences, 479–80 community service, 478–79 death penalty, 481–87 DUI convictions, 509–10 federal Guidelines Manual, 462 fines, 474–76 incarceration, 469–74 juvenile court options, 535–40 limits on, 457 mandatory sentences, 458 mitigating factors and, 460 options, 469–81 overview, 456–62 plea bargains, 409, 457 presentence report, 464–67 probation, 476–78 procedures for, 463–69 “standard sentence,” 174 statutory sentencing provisions, 456, 458 three strikes laws, 459 victim’s role, 469
614 Criminal Law Handbook: Know Your Rights, survive the system
Sequential lineups, 98 Sequestering jurors, 449 Sequestering witness, 348, 382 Sexual assault cases character evidence, 371 children and confrontation rules, 348 Megan’s Law, 480 privileged communications, 390 See also Rape Shooting into moving vehicles, 84 Showups, 103–4 Silence asserting right to, 24 defendant’s right to, 342–45 Sixth Amendment defendant’s right to a jury trial, 351 defendant’s right to confront witnesses, 345–48 hearsay and, 346 right to counsel, 353 speedy trial rights, 355 “Sneak and peek” searches, 275 Sniffer dogs, traffic violation stops and, 63 Spam and committing crimes, 276 “Special circumstances” death penalty and, 483–84 Specialized judges, 9 Specific intent crimes, 249–50 Speculation, 381–82 Speedy trial arraignments and, 215 defendant’s right to, 355–56 filing of charges and, 133 Motion for a Speedy Trial, 400 Spouses, privileged communications, 389–90 “Standard deal,” plea bargains, 420 State systems, federal system compared to, 9 Statutes, state and federal, researching, 574–75 Statutes of limitations, 131–32 Statutory rape, 264 Statutory sentencing provisions, 456, 458 Stipulations, instead of motions, 395 Stop and frisk searches, 55–58
Stop and identify laws, 13–14 Strict liability laws, 245 Strike a Prior Conviction, Motion to, 398–99 See also Criminal records Strip searches booking process and, 112 of prisoners, 550 Students (public school) drug testing of, 66–67 searching of, 66 “Submit on the record” cases, 327 Subpoena prosecution witness deposition, 318 subpoenas duces tecum, 320–21, 440, 452 Substantive due process, 337 Substantive law, 566–68 Subways, warrantless searches in, 69 Suing a police officer. See Civil tort actions Suitable placement, 524 Suspended sentence, 473 Sustained/not sustained finding, juvenile court, 524
T Talking to police. See Questioning by police Tax crimes, 277 Teen courts, 538 Telemarketing fraud, 276 Telephone calls after booking, 113 prisoners’ right to make, 551 Telephone conversations roving wiretaps, 275 warrantless searches and, 65 Terrorism Patriot Act, 65, 273–75 warrantless searches and, 69 Testimony evidence rules about content of, 367–79 evidence rules about manner of, 379–82 Motion to Strike Testimony, 401–2
Index
of prosecution witnesses, attacking, 286–87 See also Witnesses Theft, 268–71 Three strikes laws, 459 “Time served,” 473 Traffic violations checkpoints, 59 Driving While Black, 61 frisking of people, 60 Miranda warning, 25–26 ordering people out of the car, 59–60 police dogs and, 63 probable cause to search, 62–63 search of car and occupants, 58–59 See also Driving under the influence (DUI); Motor vehicles Transactional immunity, 345 Transcript of trial, obtaining, 494 Transfer hearings, for trying juvenile as adult, 532–34 Trash, warrantless searches and, 65 Trial courts appellate courts compared to, 205 state and federal systems, 9 Trial process, 428–52 closing arguments, 444–45 cross-examination of witnesses, 441–42 defense case, 442–43 direct examination of witnesses, 438–39 “good trial record” for appeal, 492–94 judge or jury trial, choosing, 429–31 jury deliberations and verdict, 448–51 jury instructions, 446–48 jury voir dire process, 431–35 Motions in Limine, 435–36 Motion to Dismiss, 442 opening statements, 436–37 prosecutor’s case, 437–38 rebuttal evidence, 443 summary, 428–29 Trial rights of the defense confrontation of witnesses, 345–48
double jeopardy and, 357–59 due process, 337–40 jury trial rights, 351–52 prosecution’s burden of proof, 340–42 public trial rights, 348–51 representation by an attorney, 352–55 silent, right to remain, 342–45 speedy trial, 355–56 True bill, 142 TV cameras in the courtroom, 350
U U.S. Constitution death penalty law validity, 482–83 due process, 285, 337–38 Patriot Act and, 275 rights of minors, 527–28 search and seizure provisions, 37–41 writ of habeas corpus, 497, 498 Use immunity, 345 Use of force when making arrests, 83–86
V Venue, Motion for Change of, 398 Verdicts, motions to change, 403, 404–5 Version of events defendant’s, 229–33 ignoring defendant’s version, 237–38 perjury and, 233–34 Victim Impact Statements, 469 Victims benefits of plea bargain, 414 restitution for, 474–75 role in plea bargaining, 415–16 sentencing hearing and, 469 Violation of probation, 477–78 Voir dire process, 431–35 Voting rights, prisoners, 554
615
616 Criminal Law Handbook: Know Your Rights, survive the system
W Waiver hearing. See Transfer hearings Waivers Miranda rights, 27 of preliminary hearing, 334 Waive of Rights sample, 107 “Waiver of Attorney” at lineup, 102–3 Walking away from a police officer, 14–15 Ward of the court, 524 Warrantless arrests, 80–82 Warrantless searches car and occupant searches, 58–63 consent searches, 46–51 emergency (exigent) circumstances, 63–64 incident to arrest, 53–55 miscellaneous types of, 64–69 plain view doctrine and, 51–52 stop and frisk searches, 55–58 Whistle-blowers, 277, 278, 279 White collar crimes, 276–81 “Willfully,” 250–51 Wiretaps, 274 Witnesses arresting material witnesses, 75
character evidence, 371 cross-examination of, 441–42 defendant’s right to confront, 345–48 direct examination of, 438–39 eyewitness identification, 93–107 immunity offers, 345 interviewing defense witnesses, 319 oath to tell the truth, 439 redirect examination, 441–42 sequestration of, 348, 382 Subpoena Duces Tecum, 320–21, 440, 452 tips for testifying, 440 See also Prosecution witnesses; Testimony “Wobbler” crimes, 131 Work product, raw information distinguished from, 306–7 Writ coram nobis, 405 Writs, 496–500 appeal compared to, 496 habeas corpus, 497–98 juvenile offenders, 540 of mandamus, 499 of prohibition, 498–99 time for filing, 499 in trial court, 405 n
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Add your local sales tax (California only)
VISA
American Express MasterCard
Total Price
Shipping: RUSH $12, Basic $9 (See below) “I bought 3, ship it to me FREE!”(Ground shipping only)
Discover Card
TOTAL
Account Number Expiration Date Signature Shipping and Handling
Rush Delivery—Only $12
Basic Shipping—$9
We’ll ship any order to any street address in the U.S. by UPS 2nd Day Air* for only $12!
Use for P.O. Boxes, Northern California and Ground Service.
* Order by noon Pacific Time and get your order in 2 business days. Orders placed after noon Pacific Time will arrive in 3 business days. P.O. boxes and S.F. Bay Area use basic shipping. Alaska and Hawaii use 2nd Day Air or Priority Mail.
Allow 1-2 weeks for delivery. U.S. addresses only.
For faster service, use your credit card and our toll-free numbers Call our customer service group Monday thru Friday 7am to 7pm PST
Phone
Fax
1-800-728-3555 1-800-645-0895
Mail Nolo 950 Parker St. Berkeley, CA 94710
Order 24 hours a day @ www.nolo.com
About the Authors
"— アメリカ刑法