Justice Process

1. Justice Process Snack bar justice Local legal culture 13-step process

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

3. Step 1 – Legislative Process • Declare certain acts illegal • Establish penalties • Substantively create the justice system • Establish the process/the legal procedures • Outline the legal rights • Finance the system

4. Step 2 - Field Investigation • Non interventionist strategy (wiretapping, observation, interviews) • Interventionist strategy A. Informal (temporarily detain, stop and frisk, street informant) B. Formal (arrest, cite, search and seize, indict, informant/immunity)

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

6. Step 3 - Police Station Process • Booking • Interrogation • Line up identification • Mugging • Inventory • Station house bail • Contact an attorney • Police administration decision(2/3 of cases go forward)

7. Step 4 - Complaint Authorization • County Attorney/District Attorney • 43% not authorized or dismissed later • Is there good evidence? • Are there believable/creditable witnesses? • Probable Cause vs. Beyond Reasonable Doubt issues (de jure vs. de facto) • Political pressures

8. 100 Felony Complaints Sought Complaint not filed or dismissed later 43 57 left Reduced to Misd. and pled out 43 14 left Plea to a felony 11 3 left Felony Trials – 1 acquitted 2 convicted 3

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

10. Misdemeanor Case Guilty Not Guilty Sentenced Sentencing Trial Date Date Bail? Bail?

11. Felony Case Guilty Not Guilty Sentenced Sentencing Preliminary Hearing Date No Yes Bail? Trial Date Preliminary Hearing Bail? Date Bail?

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

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

14. Step 6 - Preliminary Hearing • Mini-trial • Minor Trial Court • No jurors • State presents evidence/defense cannot 1. Shred 2. Shotgun • Probable cause the standard • Judge issues a bind over/case is bound over for trial, or the case is dismissed

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

16. Grand Jury • 12 to 23 citizens • Meet in secret • Prosecution or Grand Jury appointed prosecutor presents evidence • Witnesses testify • Probable cause • True Bill or an Indictment

17. Step 7 - Arraignment • Major Trial Court. • Court Procedures: 1. Charges are formally levied by the prosecutor with the court 2. Charges and potential penalties are communicated by the court to the defendant 3. Rights are communicated and fulfilled 4. A plea is entered 5. A decision is made as to the next step 6. Bail is considered

18. Step 8 - Miscellaneous Pretrial Hearings, Motions & Strategies • Wrestling match/Chess match analogy • Possible hearings: 1. Continuance 2. Change of Venue 3. Discovery Hearing 4. Evidentiary Hearings (involk the Exclusionary Rule) 5. Amicus Curiae

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

20. Step 9 - The Trial A. Judge or Jury? 1. Duncan v. Louisiana: defendants have the right to trial by jury if the potential sentence is more than six months of incarceration 2 – Singer v. U.S.: defendants have no Constitutional right to waive a jury trial B. Jury selection process: 1. Dismissals for cause 2. Pre-emptorychallenges 3. Scientific jury selection

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

22. The Trial Continues… C. Opening Statements: 1. State 2. Defense D. The State’s Case: 1. Direct Exam 2. Cross Exam 3. Objections (sustained/over-ruled) 4. Badgering witnesses 5. The State rests

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

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

25. The Trial Continues… G. Closing Statements: 1. State 2. Defense 3. State Principle of Primacy and Recency

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

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

28. The Trial Continues… K. Decision step: 1. Judge polls the jury to determine if the deliberation process and proceedings were proper 2. Judgment of acquittal option considered 3. Pre-sentence/sentencing hearing date set 4. PSI ordered 5. Post conviction bond considered

29. Step 10 - Sentencing • Pre-sentencing hearing • Sentencing hearing • Allocution option

30. Step 11 - Post-Sentencing or Appellate Phase • Appellate or post-conviction bond considered • Possible appeals: 1. Substantive Sentence Appeal 2. Substantive Trial Appeal 3. Procedural Trial Appeal

31. Step 12 - Corrections • Administrative Phase • Supervisory Phase • Release Phase

32. Step 13 - Cleansing A. Expungement: 1. Waiting period 2. Behavioral requirements 3. Judicial branch 4. Automatic B. Pardon/Clemency: 1. No waiting period 2. No behavioral requirements 3. Executive branch 4. Not automatic

33. Pardon/Clemency Factors • Afford relief form undue hardship • New evidence of innocence • The defendant is deemed insane • The offense was a crime of conscience • The defendant has been rehabilitated

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