CHAPTER TWO/PART
TWO: Criminal Justice Process
I. Criminal Justice
A. Definition -- consists of everything that may
happen to a person from arrest until freedom from state control.
B. Handout -- fig. 4
II. Arrest
A. Definition -- person suspect for a crime is
taken into custody. Once in custody one
is under arrest whether told or not.
B. The Process
1. Warrant
-- or a court order which commands that the person be placed under arrest.
2. Warrant Requirements
a.
filed with judge or magistrate
b. usually police but could be the
victim and/or witness
c.
person making complaint must swear to facts of alleged crime.
3. Probable
Cause -- a reasonable belief (don't need all the evidence to convict a
person) that a person has committed a crime.
a.
evidence to arrest does not have to convict the person at a trial.
b.
requires more than mere hunch or suspicion, there must e some fact that a crime
may or has taken place. (continuum of
certainty)
4. Drug Courier
Profile -- used to establish probable cause
III. Search and Seizure
A. 4th
Amendment -- from book
1. Respect of Privacy -- a high American value
-- freedom from unwarranted snooping and spying.
2. Unreasonable Searches and Seizures --
probable cause
3. Governments must maintain the right to gather
information -- to protect society against crime.
4. Searches and Seizures are unreasonable unless
authorized by a
valid
warrant or meet federal and/or state exceptions to the Fourth Amendment
B. Searches With a Warrant
1. Definition -- court orders and the need must
be proven and sworn too
2. Affidavit -- a sworn statement of the facts
and circumstances.
a.
time and place (10 days)
b.
particular items seized and areas to be searched (usually vague)
c.
daytime
3. Only search what the warrant specifies.
4. Third party searches -- information that is
turned over to or gained through a third person
1. Search to a Lawful Arrest -- once a
person is arrested -- then they can search him and area immediately around
suspect (weapon or evidence).
2. Stop and Frisk -- suspicious behavior
and likely to be armed. (safety of officers and bystanders). Conceal weapons Terry
v.
3. Consent -- if a person agrees, a
search may be conducted without a warrant and without probable cause. Usually only one's own belongings but could
be parent-child/teacher-student.
4. Plain View -- an object connected with
a crime -- in plain view from a place where the officer has a right to stand
then it may be seized.
5. Hot Pursuit -- police may enter a
building without a warrant after a suspect -- may seize evidence in pursuit of
felon.
6. Vehicle Search -- reasonable
suspension that a car may contain contraband the car may be searched (based on
probable cause).
7. Emergency Situations -- like bomb
threat, smelling smoke, hearing screams.
(Don't want to shackle the police from doing their jobs)
8. Border and Airport Searches -- agents
are authorized to search without warrants and without probable cause including
a persons belongings (i.e., hijacking)
D. Exclusionary Rule
1. Courts -- have the responsibility of deciding
whether evidence was legally obtained.
2. Individual Rights -- any evidence found by
the court to be unreasonable obtained will not be allowed as evidence. The Exclusionary rule just applies to
evidence not to defendant.
IV. Interrogations and
Confessions
A. Introduction
1. Standard practice for police to question the
accused.
2. Fifth amendment -- privilege against
self-incrimination -- right to remain silent and can't be forced to testify
against himself.
3. Sixth amendment -- right to an attorney.
B. Court Cases
1. Escobedo v.
a. voluntary confession was
inadmissible in court if defendant was denied access to attorney.
b.
no confession is admissible if it is gain under duress.
2. Miranda v.
a. confessions
can't be used if the person within informed of his constitutional rights.
b.
Miranda warning (in the book)
c.
Does not affect the validity of an arrest.
C. Results of Court Cases
1. The police do not have to read a person there
rights when they are arrested.
2. if they wish to use statements made be
accused then
rights
must be read.
3. custodial interrogation -- is the key --
before the accused is interrogated a person must know his right or confession
won't be allowed.
V. Proceeding Before Trial
A. Booking and Initial Appearance
1. Booking -- making a formal record of the
arrest -- fingerprints
and
photographs, then depending on case -- fingernail clippings, handwriting
and blood sample.
2. Appearance before a Judge
a.
your rights will be read to you
b.
advised of exact charges
c.
obtains or appointed an attorney
d.
misdemeanor -- a plea will be entered
e.
bail -- set by judge -- the amount of money necessary for release.
f.
presentment -- the process of initial appearance in felony case.
g.
in a felony case the plea is entered at the arraignment
B. Bail and Pre-trial Release
1. Release -- most arrest cases result in one's
release after bail, assurance that the defendant return to for trial (none on
murder case).
2.
Bail Bond -- a bonding company pays the court after the defendant pays
10% to the company court keeps money.
3. 8th Amendment -- excessive fines
4. Personal Recognizance -- must promise to
return for trial and is considered a good risk.
a.
nature and circumstances of crime
b.
family and committee ties
c.
financial resources
d.
employment background
e.
previous criminal record
5. Conditions to Assure Return for Trial
a.
third party custody
b.
maintaining a job
c.
reside a certain address
d.
reports of hereabouts on a regular basis.
C. Preliminary Hearing -- a screening session to
determine if the evidence is sufficient enough to convict or go to trial.
1. Defendant Rights
a.
an attorney
b.
cross examination
c.
call witnesses in his favor
2. Probable Cause
a.
if not found, defendant is released
b.
prosecution may submit to a grand jury.
D. Grand Jury
1. Definition -- a commission of 16-23 persons
who determine if a person who has committed a crime should stand trial.
2.
Explanation
a. the fifth
amendments requires a grand jury indictment prior to a federal proceeding.
b.
must establish that a crime was committed and the defendant did it.
c. the defendant and attorney are
not present; the prosecutor must satisfy the grand jury. (not all evidence
necessary).
E. Felony Arraignment and Pleas -- after an
indictment, defendant must enter a plea.
1. Guilty-if a plea is guilty then date for
sentencing
2. Not Guilty Plea -- if not guilty, trial date
will be set and judge or jury trial
3. Nolo Contedere -- doesn't admit guilt but
doesn't contest the charges --is a guilty plea but can't be used as evidence in
civil trial.
F. Pre-trial Motion and Exclusionary
Rule--Action taken by defendant to get case dismissed or to gain an advantage
in case.
1. Motion for Discovery -- A request for
evidence in possession of prosecutor
2. Motion for Continuance -- seeks more time to
prepare the case
3. Motion for Change of Venue -- request to
change the location of the trial to avoid jury bias.
4. Motion to Suppress Evidence -- which contest
the use of some evidence bez it was obtained illegally.
5. Police should not benefit from violation of
the constitution right-deter police misconduct
G. Plea Bargaining -- A process of pretrial
negotiations granting concession to the defendant in exchange for a guilty
plea.
1. Theory-avoid expense
2. Practice-lighter sentence
3. Decision-judges decision on fairness
VI. The Trial--Right to a speedy and public trial (rights in
Constitution are those reserved to the accused)
A. Right to Trial by Jury (6th) -- is applicable
in federal and state courts.
1. How many jury trials -- very few cases
2. How are hey chosen --defendant can wave their
right to a jury trial.
3. Number on a Jury -- jury panels are selected
from tax or voters list are representatives of the community.
4. Juries are 12 persons who must reach a
unanimous verdict
5. Juries are less then 12 and don't have to
reach unanimous verdict -- (
B.
Right to a Speedy and Public Trial -- Speedy was not defined-some states
have set date and time limits.
1. Definition of Speedy -- if not speedy then
case will be dismissed.
2. Waiving Speedy Trial
a.
illness of witness
b.
more time to prepare
3. Necessity for Speedy Trials
a.
passing time dimes recollection
b.
defendant loss of liberties, and innocent until proven guilty.
4. Public Trials -- public is freely admitted,
but judges can limit or exclude entirely if prosecution and defense agrees.
C. Right to Confront Witness --A person has the
right to confront (face to face) the witness against him, and to cross examine.
1. Contempt of Court --
2. Restrictions-disorderly conduct
D. Freedom from Self-Incrimination - -One cannot
be forced to testify against themselves.
1. Fifth Amendment
2. Immunity Laws -- force a witness to answer
all questions even those which incriminate
3. If right is waved -- he is open to all
questioning.
4. Lawyers can't make reference inferring that a
refusal to take the stand means that the defendant is guilty
E. Right to An Attorney -- Those accused shall
enjoy the right to counsel.
1. Sixth Amendment
2. Gideon vs. Wainright
3. 1938 only federal crimes
4. 1972 all court cases require counsel
VII. Sentencing
A. Introduction
1. Who -- sentencing is done by the judge or in
some states by a jury
2. Critical Stage -- it decides the fate of the
defendant for years or for life.
B. Forms of Sentencing -- May choose one or a
combination of:
1. Suspended Sentence -- is sentenced but
released w/no conditions
2. Probation -- released to the supervision of a
probation officer -- agree to contact
3. Fine -- defendant must pay
4. Restitution -- defendant required to pay back
or make up a loss or injury
5. Work Release -- community work must return to
prison at night or weekends.
6. Imprisonment -- term in prison-definite
sentence
7. Factors Involved in Sentencing
a.
judges theory of corrections
b.
best interest for society
c. persistence report-description of
offenses and circumstances and complete record.
C. Purpose of Sentencing
1. Retribution -- punishment given as a form of
revenge
2. Deterrence -- to discourage further offenders
3. Rehabilitation
4. Incapacitation
D. Capital Punishment-most serve and
controversial form of sentencing.
1. What type of Crime -- Usually reserved for
murder, rape and kidnapping?
2. Capital Offenses -- are crimes which gain the
death penalty.
3. Furman v.
a.
death penalty was not ruled out
b.
Furman case forced many states to re-evaluate their law.
c. 1976 -- Supreme Court declared
death penalty not in violation of 8th amendment
d.
4. Death Penalty Today -- 35 states now have the
death penalty
a. aggravating and mitigating
factors are those which may raise and lower a sentence.
b.
judges and juries decide
VIII. Juvenile Justice
A. Introduction -- a system separate from adult
court where the attempt is to guide and not punish.
1. parens patriae -- lawyers do not decide guilt
or innocence but the court acts as a guardian.
2. hearings are closed to public and informal
and if found guilty separated from criminal.
B. Two Forms of Juveniles
1. Delinquent -- youth has committed an act that
is a crime under federal state and local laws.
2. Status Offenders -- unruly and beyond control
of legal guardians or who have committed acts that would not be a crime
3. Others -- plus cases of child neglect, child
abuse, or abandonment. (PIN'S, CHIN'S,
MIN'S)
C. Who is a Juvenile?
1. Historically
a.
age seven not a criminal
b.
juvenile was from 7-14 not a criminal unless had intent
2.
Present Day
a.
age limits between two
b.
most states the age is 18
c.
some states the limit is 16
d.
e.
anytime -- capable of committing, seriousness of crime and intent
D. Juvenile Court Today
1. Theory
a.
rehabilitates young offenders
b.
guardian in the best interest
2. Practice
a.
has failed to rehabilitate
b. deny young people the
protection and rights of adults
3. Gault Decision -- Juvenile v.
a. Background to Case -- Gerald
Gault 15 obscene phone call -- sentence to reform school until age 21
b.
Adult Sentence -- 60 days in jail in 1967
c.
Results of Gault Case
1. notified of charge
2. right to an attorney
3.
confronting witness and cross
4. right to remain silent
4. Status Offenders-- beyond control or habitually
disobedient - truancy from school - not crimes if committed by an adult
E. Procedures in Juvenile Court -- states are
different
1. Custody -- juveniles can be taken into
custody for much the same reasons as adults (status off.)
a.
Police Authority -- have full authority to release and detain
1. parents and social services
2. detain and juvenile court
b. Intake -- the formal process
which court officials and social workers decide referral to juvenile court.
2. Initial Hearing -- decides on validity of
arrest and detention
a.
States Duty
1. must prove offense was committed
2. and the youth committed it to
detain
3. danger to himself and other or is a runaway
4. assigned an attorney
b.
Procedure
3. Adjudicating
Hearing -- simply determines the facts of the case but closed to public purpose
a.
Right to an Attorney
b.
Offer Evidence
c.
Cross Examination
d.
Force prosecution to prove
e.
Decision -- delinquent or nondelinquent
4. Dispositional Hearing
a. Introduction -- after one has be
found delinquent the judge decides deposition or sentence factors
involved
b.
Factors Involved
1. Probation dept.
2. Social big.
3. Psychological bkg.
4. Family bkg.
5. School bkg.
6. Results of hearing
c.
Results of hearing
1. Probation
2. Group home
3. comm. treats. Prog.
4. State institution
d.
Probation