Overview
Have you ever wondered why the American criminal courts system is so complex? You
might be surprised to know that the U.S. legal system was borrowed from medieval
England, whereby court cases were usually settled by referring to precedents set in
other cases similar to them. In medieval communities, members of the village had a
great deal of social responsibility and control over the justice system. People during
the Middle Ages took religious offenses seriously, and churches ran their own kind of
court, tackling crimes from heresy to murder. Repeat offenders of lesser crimes were
banished from their towns, and those who had committed more grievous offenses
were imprisoned. Nobility were hanged for crimes of treason. Although much has
changed since these earlier forms of medieval justice, the American criminal courts
system does draw from these concepts. It is not a static system; it is constantly
evolving to meet the needs of the American society.
The creation of Megan’s Law is one example where the public recognized a need to
increase awareness to make the public safer. In 1994 a young girl, Megan Kanka, was
assaulted and murdered by a known sex offender who had moved in across the street
but was unknown by Megan’s family. The wording of Megan’s Law varies by state, but
across the country it requires law enforcement to release the information and location
of sex offenders to the public.
The U.S. criminal courts system seeks to provide equality and justice by drawing from
the dialogue between modern society and historical tradition.
Introduction
If you have ever served jury duty, you know that when the judge enters the chambers,
everyone in the courtroom must stand. This tradition dates back to King Henry II, who
sent judges all over England to serve as representatives of the throne. Having
courtroom attendants rise to acknowledge the judge was representative of attendants
honoring the king.
The American criminal courts system is a complex institution that is rooted in history
and tradition. To understand the contemporary criminal courts system in the United
States, it is necessary to be familiar with the history of how the American court system
started. This includes the influence of common law heritage on the system and how it
has evolved over the years.
Common Law Heritage
Have you ever wondered how a law comes to be? How does society decide what is wrong or
right?
Select each item to learn more.
Origins of Common Law
Current American law is based on the legal system of Medieval England. Laws in that era
were based primarily on existing customs and interpretations made by a judge, which is why
they were often called judge-made laws. An action must attract condemnation before laws are
designed to eliminate it. Common law is also known as precedent.
When the United States gained independence from England, the new nation did not do
away with the English-based legal system. Even after the American Revolution, the
United States depended on the English law system to uphold the American court
system. Lawyers and judges cited English cases and practiced English law because that
was the form they knew. Additionally, the appellate decisions from most American
courts were not being documented on a regular or reliable basis.
Common Law Heritage
Have you ever wondered how a law comes to be? How does society decide what is wrong or
right?
Select each item to learn more.
Current American law is based on the legal system of Medieval England. Laws in that era
were based primarily on existing customs and interpretations made by a judge, which is why
they were often called judge-made laws. An action must attract condemnation before laws are
designed to eliminate it. Common law is also known as precedent.
When the United States gained independence from England, the new nation did not do away
with the English-based legal system. Even after the American Revolution, the United States
depended on the English law system to uphold the American court system. Lawyers and
judges cited English cases and practiced English law because that was the form they knew.
Additionally, the appellate decisions from most American courts were not being documented
on a regular or reliable basis.
Reception Statutes
At first, every state except Louisiana enacted reception statutes. These statutes
usually stated that the common law of England, judge-made law, is the law of the
American state unless it conflicts with domestic law or conditions. Because of this
adoption, many contemporary U.S. courts still cite pre-Revolution cases when
discussing the evolution of a judge-made common law principle.
Contemporary Law
As American law and society advanced, however, the practice of citing English
decisions gradually decreased. Today, contemporary lawyers have no need to rely
on English cases because of the long history of American court decisions. Although
lawyers no longer make as many direct references to the English legal system,
American law is still influenced by it. In fact, a small number of important English
statutes that were in effect at the time of the Revolution have been independently
reenacted by the United States and are still extremely relevant today. For example,
many lawyers accept the Statute of Frauds, a statute from pre-Revolution English
law, and regularly cite it for their arguments in court cases today.
Common Law Concepts of the Current Legal System
Two common law concepts that are important in the current American legal system include
the following:
Select each item to learn more.
Stare Decisis
Stare decisis is the principle on which most American court decisions are built.
Deciding a case on precedent means that a judge must apply the rules of law found in earlier
cases, provided the facts in the current case are similar. Stare decisis establishes consistency
in the application of the law. If a precedent has not been set, a judge must render a decision
based on the merits of the current case alone. Stare decisis may not apply when
circumstances and social standards change and require the law to change accordingly. Some
decisions can be overturned in total or in part, demonstrating how laws can change to fit
changing times.
For example, in 1973, a precedent was set by the case Roe v. Wade. Before this case, it was
against the law for a woman to have an abortion. This violates the constitutional right to
privacy under the Due Process clause in the Fourteenth Amendment. Since this decision,
women can have abortions for any reason until the point at which a fetus can survive outside
of the womb (about 28 weeks).
Codified Law
Codified law is the record of written codes (statutes) created by the government.
Examples of codified law in today’s society include federal laws passed by Congress
or by state legislatures. Conversely, common law is uncodified. By 1900, most
states had their own set of codified laws.
When codified law is enacted, legislators must bear in mind two important
concepts: fair notice and ex post facto law. Fair notice means that citizens must
be given ample warning that a particular behavior has been outlawed. In other
words, a citizen cannot be held liable for actions that are not defined as illegal
through the codification or court process. An ex post facto law is a law applied to an
action that occurred before the law was codified or before a precedent was set. Laws
cannot be applied retroactively.
Historically, common laws are sometimes referred to as
judge-made laws
.
Letting the previous decision stand, provided the facts in the current case are
similar, is illustrated by
stare decisis
.
Warning citizens that an action may be outlawed is illustrated through
fair notice
.
Contemporary courts in the United States still cite pre-Revolution cases when
discussing the evolution of judge-made common law principle.
True
False
Current American laws are based on the legal system of Medieval England.
True
False
8 of 22
Review
American law is steeped in tradition, from the way courtrooms operate to the ways in
which the law is interpreted. The creation of new, codified laws in the United States
also draws upon common law heritage and statues from the English legal system in
Pre-Revolutionary times. In a criminal case where the accused person is charged with
a crime, both stare decisis and codified law help shape the judge’s or jury’s decision,
applying the rules of law from previous cases and the written codes of the government
regarding similar criminal cases.
Introduction
The criminal courts system comes into play when a situation requires a law to
eliminate or change it. In Texas prior to 1923, counties carried out their own
executions whenever a defendant was sentenced to the death penalty. After 1923,
executions were conducted by electric chair until judicial challenges to capital
punishment resulted in a moratorium on capital punishment in 1964. Since then, the
law for the death penalty in Texas has been revised and changed based on the
influence of public opinion.
Throughout the history of the U.S. court system, laws have been developed and then
revised. This process is made possible by the unique design of a courts system that
allows for revisions based on the needs of the society. Understanding the impact
criminal law has on the courts system and the terminology used helps you to see the
law as an ever-changing, growing body of knowledge.
U.S. Law in Constant Change
The law is always changing. The law is a growing body of knowledge that evolves at
different rates and sometimes in different directions according to how society evolves.
Likewise, laws differ from one state to another. To better understand how state laws vary,
you can visit your state’s official government website. We'll discuss more about U.S. laws
and the relevance of their evolution here.
Select each item to learn more.
Relevance
One of the strengths of U.S. law is its ability to change to keep up with the rapidly changing
social and technological world in which we live. Current laws are updated regularly, and old
laws that might no longer be relevant are removed from the codes.
Example
For example, laws that are changed as a result of a referendum at the ballot box
can conflict with existing statutes. Recently, groups in Washington State have
submitted a petition in June 2012 to overturn the current same-sex marriage law.
Such discrepancies can be resolved in the courts based on judicial decisions. New
statutes and appellate decisions also influence the way in which related laws are
interpreted. These circumstances contribute, over time, to the development and
metamorphosis of the law, making it a dynamic entity.
New Laws
In addition, new laws are enacted to keep up with the ever-changing environment in
which we live. Because criminals have become a large presence in the computer and
technology world, new laws relating to computer crime have been created because
the common theft statutes didn’t fully cover these crimes. As a result, new
legislation, which clearly defines computer crimes and the punishments for
committing these crimes, has been developed.
The Internet and other technologies have necessitated many new laws that are
currently under debate, including laws about taxing online purchases, e-annoyance
laws, intellectual property laws, laws regarding Internet gaming, and so forth.
For a new law to come into existence, it requires a lot of support, not only from
legislators but also from citizens and advocacy groups.
Example of Legal Response to Social Change
Laws develop in response to social changes and issues. For example, Megan's Law,
which allows notification of the public regarding the presence of sexual offenders in
their neighborhoods, was created in 1994. Each state has adopted its own version of
Megan's Law, which you can locate on your state's government website. On the
State of Pennsylvania's website, there are points of access to Megan's Law, which
list the locations of convicted offenders.
Other laws that have developed in response to social and technological change
include California laws prohibiting the use of the tranquilizer Rohypnol and
prohibiting the recruitment of members into a gang.
These laws are often created when existing laws do not adequately address new
forms of questionable behavior. The impetus for such laws often comes from victims
or nonprofit organizations. Megan's Law was sponsored by a citizen's group that
argued its case, gathered support, and lobbied for the law's passage.
The Link between Law and Crime
A crime is an act that violates a law. Committing a crime can lead to punishment under the
law. For an act to be considered a crime, it must meet three important requirements:
Select each item to learn more.
Actus reus (Latin for guilty act)
Mens rea (Latin for guilty thought)
Concordance between the two (Actus reus and Mens rea)
Actus reus
Actus reus means that act must be committed voluntarily and break an existing criminal
statute. There is no requirement that the act harm anyone; the act itself constitutes a crime.
Let's learn more about involuntary and voluntary violation:
Select each item to learn more.
Involuntary Violation
A man is driving down a neighborhood street and has a heart attack. This heart attack causes
him to lose control of his car and run over the foot of a pedestrian. The injury caused by the
driver would be considered involuntary.
Voluntary Violation
A robber enters a bank, holds up the teller, and then has a shift of conscience. He decides he
doesn’t want to rob the bank, so he leaves without harming anyone and without taking any
money. The attempt to rob the bank constitutes a crime.
Mens Rea
Actus reus establishes that a criminal act has been committed. The next element of a
crime that has to be proven is mens rea. Mens rea states that a person must have
a guilty state of mind when committing a crime, meaning that accidental actions
cannot be considered crimes. The intention to commit an act must be present; the act
must knowingly be committed. Blameless individuals should not be punished for their
actions. To understand the difference between actus reus and mens rea, think of the
two concepts this way: actus reus requires that a person commit an act, and mens
rea requires that the act is intentional.
Rules of Mens Rea
Learn about the special forms of the mens rea rule here.
Select each item to learn more.
Forseeability
Foreseeability means that the consequences of an act can be anticipated. An individual
can be guilty of a crime if he or she foresees any possible consequence of an action. For
example, driving under the influence of alcohol or drugs has a foreseeable consequence
because people know that driving while intoxicated poses a danger. Reckless behavior can
constitute a crime.
Negligence
Negligence is a factor in a crime when a level of care expected by society is not
provided, which constitutes carelessness. For example, leaving a child in an
overheated car with the windows up may constitute negligence.
Felony Murder Rule
The felony murder rule applies if someone dies as a consequence of another crime
being committed. In this case, the person committing the crime can be convicted of
murder even if the intention to commit murder was absent. For example, if an
individual is speeding in a car in an attempt to evade police and kills an innocent
bystander as a result of this reckless driving, the speeding driver can be criminally
charged. Currently, 46 states have a felony murder rule, and felony is usually
charged as murder in the first degree. Many states recognize the merger doctrine.
This doctrine states that a criminal assault will not serve as the choice felony under
the felony murder rule. Like Megan’s Law, the wording of this law varies from state
to state.
Concordance between Actus Reus and Mens Rea
For an act to be considered a crime, a criminal must have committed the act
intentionally. If someone accidentally confuses his duffle bag with another person's in
the airport and takes the other person's duffle, he committed an act by taking the
other person's duffle, but he did not intend to do it. He would have rather taken his
own clothes home and not someone else’s. This act meets the criteria for actus reus,
but not for mens rea.
On the other hand, someone can intend to commit a crime but not actually commit
the act. If Jane wants to break into the storage unit next to hers, but she gets the
numbers mixed up and breaks into her own storage unit, even though she intended
to break into the other storage unit, she did not commit a crime because she broke
into her own unit.
The guilty act and the guilty state of mind must merge for an event to be considered
a crime.
Strict and Vicarious Liability
There are two other types of criminal offense that don’t require mens rea to be considered
crimes.
Select each item to learn more.
Strict Liability
Under strict liability, a person can be considered liable for an act whether or not he or
she meant to cause harm. Statutory rape is a strict liability offense. It doesn’t matter whether
the offender knew his victim was underage. It is only necessary to prove the offender
engaged in sexual activity with the minor.
Vicarious Liability
In the case of vicarious liability, an employer may be held liable for the actions of his
or her employees. If an employee of a liquor store sells alcohol to a minor, the employer is
held criminally responsible for this action, whether or not the employer was aware of the act.
The Effects of Criminal Law on the Courts
Criminal law determines how the courts respond to actions and behaviors. In many cases,
several criteria must be met for the courts to prosecute a case. Criminal law delineates the
following criteria:
Select each item to learn more.
Grounds for Charges
The offenses that constitute grounds for criminal charges:
The courts make sure that when a crime consists of several elements, each element is proven.
For a person to be charged with first degree murder, for example, the act must have been
willful and premeditated.
Violation Codes
The penal codes that apply to a specific violation:
The courts reference the codes that define the elements of a specific crime and the
punishment for that crime to determine which penalty will apply in the case. For
example, a speeding ticket may be punished by a fine or by a period of community
service.
Trial Procedures
The processes and procedures that can be used in criminal trial proceedings:
The U.S. Supreme Court and other appellate courts make decisions about the
acceptance of certain procedures in court. The constitutionality of certain laws may
be interpreted in different ways and significantly affect trial outcomes.
Two Criminal Court Models
A legal system can operate on the philosophy that its first responsibility is to protect
defendants’ rights to due process or on the philosophy that its first responsibility is to reduce
crime. Herbert Packer, the scholar who defined these perspectives, indicated that these
definitions represent extremes and that the American criminal justice system represents a
blend of the two philosophies. Two models exist for how cases progress through the courts.
Select each item to learn more.
Crime Control Model
According to the crime control model, the purpose of the court is to punish guilty
parties as promptly and efficiently as possible in an attempt to reduce crime.
Individuals tried under this model are usually believed to be guilty; otherwise they would not
be arrested. As a result, innocent defendants are sometimes wrongly accused and punished.
This system believes that legal safeguards for defendants, like strict search and seizure rules,
should be minimized because defendants use such safeguards to escape punishment. Under
this model, plea bargains are used not only to ensure that the system is not bogged down with
cases but also to ensure that the guilty parties are punished.
The main objective of the crime control model is to minimize crime by making sure criminals
are punished for their wrongdoings.
Due Process Model
The due process model views the courts as forums in which judges and other justice
workers must protect defendants’ rights to due process from overzealous police and/or
prosecutors. Therefore, all defendants are innocent until proven guilty.
In the due process model, safeguards such as strict search and seizure laws and the right to a
lawyer are upheld and are necessary to prevent the false accusation of a defendant. Plea
bargains are considered an easy way out of a trial and a disservice to parties who give up the
rights to which they are entitled in a full trial.
The due process model focuses on reducing crime by providing programs that help offenders
avoid future criminal activity.
For each item, select the best answer.
The due process model mainly focuses on controlling crime to minimize crime by
making sure criminals are punished for their wrong doing.
True
False
For an act to be considered a crime, the one committing the act had to have criminal
intention.
True
False
With
the crime control model
, the purpose of the court is to punish guilty parties as promptly and efficiently as
possible in an attempt to reduce crime.
With
the due process model
, all defendants are innocent until proven guilty.
Under
strict liability
, a person can be considered liable for an act whether or not the person meant to
cause harm.
Under
vicarious liability
, an employer may be held liable for the actions of his or her employees.
Review
Laws in the United States constantly change due to changes in society. Public opinion
and advances in technology can influence changes in the law. For instance, the
proliferation of the Internet over the last few decades has led lawmakers to create
new laws to help regulate online purchases and intellectual property.
When a person accused of a crime steps into the courtroom, the laws that dictate
whether or not a crime has been committed will have been revised many times based
on past criminal cases to ensure a fair judgment is reached. For a crime to have been
committed, the act must meet the requirements of mens rea and actus reus. Knowing
what constitutes a crime in America can help you understand how and why the courts
respond to certain acts and behaviors.
Summary
The American legal system is an intricate entity that is influenced by common law
heritage, modern courtroom proceedings, and social change. The system has
adopted stare decises and codified law, which originated from precedents set back in
medieval England, However, it is a modern system that draws influence from many
sources and is constantly evolving as laws are created, reassessed, and repealed.
The modern American court system is a blend of two models—the crime control model
and the due process model—according to legal scholar, Herbert Packer. While the
modern court system aims to preserve the rights of the accused, it also attempts to
do so in an expedient manner.
Module 01: Quiz

Due No due date

Points 15

Questions 15

Time Limit 30 Minutes
Instructions
Quiz
This quiz relates to the following
module objectives:







Explain the relationship between common law and the American legal system
Define terms related to development of laws
Define terms related to crime
Explain why American law is constantly changing
Explain the impact criminal law has on the courts
Describe the effects of changing laws on the court system
Outline elements of crime
Read the following before entering your
Quiz:



You will be able to enter this quiz one time.
You will have 30 minutes to complete the quiz.
If you lose your Internet connection during your assessment, log on again and re-enter.


To pass this course, you must earn at least 70% of the total possible points for the course. If you
are concerned about your knowledge of the information covered by Module 1, please go back
and review the material prior to entering Quiz 1.
This is an open book assessment. In the context of this assessment, that means you may only
use the eText, Module Presentations and personal paper notes based on these. Searching the
internet for answers, accessing previous assessments, or using additional resources of any
kind is not permitted. Please see the Academic Code of Conduct for more information.
Course Resources
(pp. 1–29)(pp. 30–
Module 1: Presentation
52)
Module 1: Reading
Submitting Your Quiz:

When you are finished with this quiz, click the Submit for Grading button.
Attempt History
LATEST
Attempt
Time
Score
Attempt 1
23 minutes
12 out of 15
Score for this quiz: 12 out of 15
Submitted Mar 23 at 1:59pm
This attempt took 23 minutes.
Question 1
1 / 1 pts
The medieval judge was entrusted with all of the following EXCEPT ________ and was
trusted to apply them to solve disputes between citizens.
Correct!
opinions determined by the community
morals
collective wisdom
values
Question 2
1 / 1 pts
American Common Law is derived from which country's medieval system?
Correct!
England
Canada
Australia
Wales
Question 3
1 / 1 pts
Why do some say that the process of lawmaking is "non-democratic"?
because not all the laws are voted upon
because only two political parties are really involved
Correct!
because public support is not needed for laws to be passed
because the president need not agree
Question 4
1 / 1 pts
In addition to laws, which other rules have been developed over time to oversee offensive
conduct?
tortious conduct rules
regulatory administrations
Correct!
administrative regulations
Roberts' Rules of Order
Question 5
1 / 1 pts
How can interested citizens directly convince the legislature to enact a new law?
by voting for the appropriate person
by filing the appropriate state lawsuit
by filing the appropriate federal lawsuit
Correct!
by influencing legislators to sponsor laws
Question 6
1 / 1 pts
Which term describes law that is based on codes or statutes?
common
Correct!
codified
drafted
written
Question 7
1 / 1 pts
Which of the following terms describes a law that is NOT in written form?
central
Correct!
common
court
codified
Question 8
1 / 1 pts
Which model in the criminal justice system focuses on swift and efficient punishment to
reduce crime?
Correct!
the Crime Control model
the Due Process model
the Ex Post Facto model
the Criminal Justice model
Question 9
1 / 1 pts
An offense that usually consists of a violation of a state statute or local ordinance is called
a(n) ________.
felony
Correct!
infraction
misdemeanor
injunction
Question 10
1 / 1 pts
Which legal term describes the concept that citizens must be informed beforehand that an
action is illegal?
forewarning
informing
Correct!
fair notice
codification
Question 11
0 / 1 pts
How does criminal law specify the procedure for trials to be conducted?
The defendant chooses his or her own procedure.
Correct Answer
The appellate courts specify the procedure through rulings.
The prosecutor and the defense attorney agree on a procedure.
You Answered
The judges decide the procedure in every individual case.
Question 12
0 / 1 pts
Which of the following is NOT one of the three main types of defenses that can be used in
criminal law?
Correct Answer
presumption of innocence
alibi
You Answered
excuse defense
justification defense
Question 13
1 / 1 pts
The process of developing and revising laws is made possible by the unique design of a
court system that allows for changes based on the ________.
growth of the population
Correct!
needs of the society
culture of the populace
ecological make-up of people
Question 14
0 / 1 pts
Which concept is important in determining whether a defendant had the proper mens rea?
conspiracy
You Answered
actus reus
ex post facto
Correct Answer
forseeability
Question 15
1 / 1 pts
________ describes the "guilty" state of mind in a crime.
Actus reus
Criminal code
Common law
Correct!
Mens rea
Quiz Score: 12 out of 15
Overview
Steven is on trial for the murder of a man named Joseph. At first glance, the case
constitutes a crime and punishment under the law. It appears that Steven committed
an unlawful act voluntarily and had the full intention of doing so. Based on this
evidence alone, Steven has fulfilled the definition of committing a crime.
The criminal court system intends to provide justice to those involved in the court
process. Let’s take a closer look at the events that unfolded on the night that Joseph
was killed. Steven was alone inside his one-bedroom apartment in the city. It was late
at night, and he was almost asleep when he heard someone break the padlock on the
door and enter his apartment. The man moved directly up to Stephen’s bedroom and
forced the locked door open. Joseph had broken into Steven’s home with the intent to
injure and possibly kill Steven. Once he had gained entry into the room, the intruder,
Joseph, first tried to strangle the unsuspecting homeowner, but when it was clear that
Steven might overpower him, Joseph removed a revolver from his back pocket and
shot at Steven twice. To protect himself from serious bodily harm, Steven dislodged
himself from his potential killer, moved to his kitchen, and stabbed Joseph with a
kitchen knife. As Steven moves through the court process, his lawyer is likely to use
the fact that the act was self-defense to prove that Steven is not legally guilty for his
actions and should not be found guilty of murder under the law.
Introduction
For an act to be considered a crime, the perpetrator of the act must have a guilty
state of mind. To prove that an individual lacked a guilty state of mind when the act
was committed, defense attorneys might use one of a number of legal defenses.
George is a man accused of murdering his wife, similar to the case of Scott Peterson,
who was convicted of killing his wife and their unborn child. However, in George’s case
his wife, who suffered from depression, threatened George with a knife—George’s
attorney might make an argument of self-defense. What if George’s wife just
happened to be holding a knife while an argument broke out? In that case, what if
George had a history of mental illness? His attorney might then cite an insanity
defense. Prosecuting crimes is not always as simple as it seems.
Legal Defenses
For an action to be considered a crime, the actor must have mens rea, a guilty state of
mind, There are ten legal defenses used to argue that an individual lacked mens rea. If a court
recognizes a legal justification, an individual may not be held legally responsible for his or
her actions.
Infancy and Insanity
The infancy and insanity defenses are based on the idea that the accused was not capable of
determining right from wrong. Learn more about each defense here.
Select each item to learn more.
Infancy
When a juvenile is too young (typically younger than seven years) to be able to form
the mens rea necessary to commit a criminal act, the defense may be infancy. For example, if
a five-year-old child suffocates her little brother out of anger, infancy could be used as a
defense.
Courts decide on a case-by-case basis whether a child knows right from wrong. As we know,
laws are modified to accommodate social change. Based on current trends of young children
committing crimes such as bringing weapons to and using weapons in school, courts today
are less inclined to use the infancy defense than in the past. An increasing number of young
children are being tried in court, and some are certified to be tried in adult courts.
Insanity
When an individual is proven to have a mental illness that impairs the ability to form mens
rea, the insanity defense can be used. To use the insanity defense, it must be proven that the
individual suffered from such impairment when the crime was committed.
Other considerations include the American Law Institute test, which says that an individual
must be able to comprehend criminality and conform to legal standards, and the Irresistible
Impulse test, which states that an individual who is “irresistibly compelled” to commit a
crime may not be liable even if he or she knows right from wrong. These considerations are
all based on a reduced capacity to reason. For example, a Virginia jury found Lorena Bobbit
temporarily insane when she cut off her husband’s penis. She was released after three months
of psychiatric evaluation.
A few states have abolished the insanity plea as a legal defense. There is significant
discussion about whether criminals are avoiding punishment by claiming they are not guilty
by reason of insanity. Increasingly, courts are convicting defendants who are found insane
and sentencing them to psychiatric facilities.
Involuntary Intoxication and Self-Defense
The involuntary intoxication and self-defense defenses are based on the idea that the accused
was manipulated into committing a crime. Involuntary intoxication involves chemical
manipulation, and self-defense maintains that the threat of physical violence gave the accused
no choice but to commit a crime. Learn more about each defense here.
Select each item to learn more.
Involuntary Intoxication
When intoxication makes it impossible for an individual to form mens rea, and that
individual’s intoxication was involuntary, the defense may be involuntary intoxication. For
example, if a drug was slipped into your drink at a party and you were unaware that it
happened, you could claim that your intoxication was involuntary. In this case, you would not
be liable for any crimes you committed while under the influence. Note that voluntary
intoxication is not a defense for committing a crime. Becoming intoxicated voluntarily is a
conscious choice.
Recently, the involuntary intoxication defense has been used for acts of violence committed
while the offender was using a prescription medication, such as Zoloft. Because in these
cases a physician prescribed the use of an FDA–approved drug, involuntary intoxication
applies. There is controversy, however, about whether the use of certain prescription drugs
causes uncontrollable violent behavior.
Self-Defense
When an individual uses force to protect himself or herself from death or serious
bodily harm, he or she is entitled to plead self-defense. Essential to this defense is
the concept of proportionate force, meaning that an individual can use force for
self-protection but cannot use force that is greater than necessary to avoid the
threat. Deadly force cannot be used against less serious threats, such as threats
against property.
For example, if a man defends himself from a home intruder by hitting the intruder
over the head with a baseball bat, self-defense would likely apply. However, if the
homeowner beats the intruder to death, this defense may not apply.
Prevention of a Felony and Coercion/Duress
The prevention of a felony and coercion/duress defenses are based on the idea that a crime
was committed to protect others or to prevent harm.
Select each item to learn more.
Prevention of a Felony
This is an acceptable defense when an individual protects others from harm or prevents a
violent felony. Also known as the defense of others, using force is permissible if the
defendant believes that force is necessary to protect others. If the perpetrator is injured as a
result of the protective action, the individual who defended the victim is protected. This
defense is only valid if the individual who takes the defensive action is certain that others are
in danger.
Coercion/Duress
An individual can claim coercion or duress if he or she acts in response to a rational
fear of immediate death or serious bodily injury. An example of duress is if a kidnapper
demands ransom from a child’s parents and says the child will be killed if the parents do not
pay money that they have embezzled. In this circumstance, the parents would not be
prosecuted for embezzlement if they felt their child’s life was in danger. The coercion/duress
defense cannot be used to justify murder, however, because under the law one life is not
considered more valuable than another.
Necessity
The necessity defense is based on the idea that a crime was committed to prevent a greater
tragedy or crime. For example, John and his pregnant wife were on the way to the hospital for
delivery and were in an accident with another car. The wife was going to have the baby soon,
so John left the scene of the accident to get his wife to the hospital. The necessity defense
might be used to prevent John from being convicted of leaving the scene of an accident. John
committed a crime to prevent possible danger to the health of his wife and new baby. Four
elements must be present for this defense to be effective:
Select each item to learn more.
The crime must be committed to prevent a significant and imminent evil (in this case, potential problem
delivery).
The defendant must not have a reasonable legal alternative available (in this case, there was no time to
The criminal act must not be disproportionate to the evil it sought to prevent (in this case, the health of
wife and baby were more important than leaving the scene of an accident).
The defendant must have acted with good faith, believing the act was necessary to prevent the evil (in t
case, John did not think there was sufficient time to stay at the scene or wait for an ambulance for his w
Entrapment
Entrapment occurs when a government agent takes action that creates an opportunity
for a crime to occur. For example, if a police officer plants drugs on an individual who
would not have otherwise come into possession of these drugs, that individual can
claim entrapment.
Entrapment can be difficult to prove because law enforcement agents rarely
intentionally put law-abiding individuals in criminal situations. Sting operations
intended to catch those already involved in crime do not fall under the definition of
entrapment.
Syndromes and Mistake of Fact
The syndromes and mistake of fact defenses are based on the idea that a mental state—
whether a psychological problem or a misunderstanding—was responsible for the crime.
Learn more about each defense here.
Select each item to learn more.
Syndromes
The syndromes defense is when specifically identified psychological syndromes are used to
justify a crime. Syndromes that have recently been used as a defense include battered
woman’s syndrome, battered child syndrome, post-partum depression, and post-traumatic
stress disorder. When the defendant has been significantly affected by a psychological
syndrome, his or her ability to form mens rea may be compromised.
For example, in 2001, Andrea Yates was convicted of drowning her five young children. She
claimed that she was not guilty because of the effects of post-partum depression. Although
this defense did not hold up in court and she was convicted of murder and sentenced to two
life sentences in prison, it increased awareness of post-partum depression.
Mistake of Fact
When an individual commits an act that could be a crime but is based on an honest
misunderstanding of the situation, the mistake of fact defense may be used. For example, if a
traveler at an airport inadvertently picks up the wrong bag at baggage claim because the bag
is similar to his or her own, it is unlikely the traveler would be accused of theft. However, the
traveler would be expected to report the incident and take reasonable action to correct it.
Ignorance of a law is not considered mistake of fact except in certain complex situations,
such as interpreting the tax code.
Entrapment
When the idea and motivations for committing a crime were planted by a
government agent
Coercion/Duress
When an individual’s actions were in response to rational fear of immediate death or
serious bodily injury
Infancy
When the accused is too young (typically younger than seven) to be able to form
the mens rea necessary to commit a criminal act
Self-Defense
When the individual's actions were meant to protect himself or herself from death or
serious bodily harm
Insanity
When the individual’s state of mind at the time of a crime meant he or she could not
form mens rea to commit a criminal act
For the legal defense of
prevention of a felony
, actions were taken by an individual to protect others or avoid the occurrence of a
violent crime.
For the legal defense of
necessity
, actions were taken based on the need to prevent a greater evil or tragedy.
For the legal defense of
mistake of fact
, actions taken were based on an honest and reasonable error that was corrected
and from which no additional harm or damage occurred.
For the legal defense of
involuntary intoxication
, actions occurred when an individual was drugged without his or her knowledge.
Review
A defense of infancy may be used in a case when a child unintentionally holds his
sibling under water while playing, leading to the sibling’s drowning and death. The
child may not know right from wrong or realize the effect of his actions. However, a
case where the accused is able to use one of the legal defenses does not always mean
the accused lacks a guilty state of mind. For instance, intoxicated persons can still
form mens rea, and some matters of self-defense do not require a level of force that
would end in murder. Legal defenses are only meant to argue that an individual lacks
a guilty state of mind, which must be proven in the court system.
Introduction
After his arrest for the robbery of a local jewelry store, Alex is now part of a lengthy
process under the law that gives him the opportunity to prove or disprove his
innocence in the crime. If Alex is able to prove his innocence during his initial
appearance—a preliminary hearing—before the judge, then the case will be dismissed.
Otherwise the case will move forward in a number of possible steps, including a set
trial date. Knowing these steps will help you better navigate through the initial stages
of the American court system.
Court Hearing
An arrest has been made. Now what happens?
Select each item to learn more.
Preliminary Hearing
Step 1: After an individual is arrested, a preliminary hearing (also called a probable
cause hearing) is held before a judge. This hearing determines if there is enough evidence to
hold a trial. In some states, a grand jury is used to decide if a criminal indictment will be
issued. The term grand jury refers to the number of people who serve on the jury. In a grand
jury, there are 16 to 23 members, as opposed to a trial jury, which has six to twelve members.
Step 2: If there is enough evidence, a trial date is set. The case is dismissed if the judge finds
inadequate evidence.
Arraignment
Step 3: The charges against the accused are read in court.
Step 4: The accused enters a plea of guilty, not guilty, or nolo contendere (no
contest). If the defendant chooses to not enter a plea, that defendant neither admits
guilt nor disputes a charge, and the court enters a plea of not guilty. No contest
pleas cannot be used against a defendant in civil court.
Step 5: The judge questions the defendant to ensure that he or she understands the
charges and reads the defendant his or her rights.
Step 6: The judge sets bail.
The court can regulate the police by excluding evidence that was gathered
improperly and by excluding charges that it deems inappropriate.
True
False
The case cannot be dismissed until arraignment.
True
False
The accused can enter only a plea of guilty or not guilty.
True
False
A grand jury has a greater number of jurors than a trial jury.
True
False
0
Remaining
<>
Preliminary Hearing
Depending on how much evidence there is, the case is either dismissed or a trial
date is set.
Also known as a probable cause hearing.
Arraignment
Charges against the accused are read in court.
The judge questions the defendant on whether he or she understands the charges
against him/her.
Review
Let’s follow Alex’s case as it moves through the criminal courts system. Knowing what
to expect during this preliminary trial and arraignment period will help Alex’s
attorney’s better prepare for the stages of the court system. After his arrest, Alex will
first have to attend a preliminary hearing for his case. At the hearing, a judge will
read the charges against Alex and set a trial date. Alex will have the opportunity to
enter a plea, and the judge will make sure that Alex fully understands the charges
against him. The judge will read Alex his rights and set bail.
Introduction
Imagine being the judge in Robert’s case. Robert is accused of kidnapping his son. In
the court proceedings, the evidence is laid before you from both sides. Robert’s
attorney presents a man who is an upstanding citizen with no previous criminal
history—a man who believed his son was in danger while his son lived with his mother,
Robert’s ex-wife. Based on the structure of the criminal courts system in the United
States, the judge and jury will hear Robert’s side as the defendant and also the
opposing side of the prosecution.
Defining Adversarial Systems
The legal system in the United States is an adversarial system. An adversarial
system is a legal system in which two advocates (lawyers) each represent their party
(defendant or plaintiff) before an objective group of people (a jury and/or judge).
Under this system, justice is served when the most effective adversary convinces the
judge and/or jury that his or her perspective on the case is correct.
Consider the adversarial system as a form of battle like an NFL football game. In the
football game, one of the teams will win, but this cannot be predicted beforehand.
This is the same as the court system.
Basis of the Adversarial System
The adversarial system is based on the following premises:
Select each item to learn more.
Justice is served best when opposing points are presented and argued in court.
The exchange between the defense and prosecution is a checks-and-balances system that enables exam
of both sides of the case.
An accused individual is innocent until proven guilty.
The adversarial system reflects the ethos and beliefs of the free market system, and the competition bet
the two sides encourages the truth and best solution to emerge.
The basic features of an adversarial system enforce the checks-and-balances premise on which it is part
based. The concept of cross-examination is based entirely on the adversarial structure of common law i
U.S. courts system.
In a criminal adversarial proceeding, it is not necessary for the prosecutor or judge to question the accu
the accused chooses to give up the right to remain silent, however, he or she is required to testify. He o
then questioned by his or her own representative and may also be cross-examined by the opposing part
accused risks committing perjury during this line of questioning.
The rules of evidence are also a result of the adversarial system. Evidence is a tool judges use to gain li
inquisitorial powers because the rules allow judges to exclude evidence based on their beliefs regarding
trustworthiness and relevance to the legal issue at hand.
According to some scholars, the adversarial system’s competitive focus reflects the
American free market ethos.
True
False
It is not necessary for the prosecutor or judge to question the accused during a
criminal adversarial proceeding.
True
Fals
In a(n)
adversarial system
the judge serves as a neutral party who oversees the
legal proceedings
. This is the opposite of what happens in a(n)
inquisitorial system
.
Review
During Robert’s trial, the prosecution paints a picture of a woman, Robert’s ex-wife,
who is dedicated to family with no history of violence in the past. None of Robert’s
son’s school teachers, neighbors, or other family members expresses concerns or
complaints about the way Robert’s ex-wife treats their son. The prosecuting attorney
also points out that Robert could have gone through the proper legal channels to
ensure his son’s safety. The jury will have to consider the facts from each side before
making a decision. The strength of the adversarial system is that it allows both parties
in a case to present each side of the story, giving a complete picture of the alleged
offense.
Introduction
Francine is accused of assault with a deadly weapon. Based on the criminal court
system in the United States, Francine’s rights are protected under due process. After
her arrest, the police needed to have probable cause to detain her. During Francine’s
trial, the government was tasked with ensuring fairness by upholding her
constitutional rights. Due process ensures that it is highly unlikely Francine will be
executed for her crime, as the severity of the punishment should match the severity
of the crime. The notion of due process helps protect individuals accused of a crime
until they are proven guilty.
Concepts of Due Process
“No person… shall be deprived of life, liberty, or property without due process of law.”
(The Fifth Amendment, United States Bill of Rights)
Due process is a concept rather than a strict definition, encompassing ideas of fairness,
accountability of the government, protection of individual rights, and public scrutiny of the
legal system to ensure justice. The concept applies to civil rights in three general areas: life,
liberty, and property.
Select each item to learn more.
Life
Due process, as applied to the right to life, means the government cannot execute an
individual accused of a capital crime without having first exhausted all courts’ appeals
processes and a petition for a stay of execution. The goal of due process in this situation is to
ensure that all possible evidence has been reviewed to minimize the chance that an innocent
person will be put to death
Liberty
Due process, as applied to the right to liberty, affects all American citizens. For example, a
citizen cannot be detained without probable cause, and law enforcement officials must have a
legal reason (or a reasonable suspicion, in certain cases) for searching and arresting an
individual. Due process in the legal system entitles defendants to legal counsel and a trial by
jury. In addition, prison inmates have the right to hearings and other protections before they
can incur disciplinary actions.
Property
A citizen is entitled to due process if the government wants to acquire an individual's
personal property. For instance, the government can exercise its right to eminent
domain (a controversial issue) and acquire personal property—for example, to build
a new public school—only if specific legal guidelines and procedures are followed,
which would ensure the citizen has time to make the necessary preparations to
vacate the property.
Specific Provisions of Due Process
Specific provisions in the United States Constitution are intended to protect the due process
rights of the accused.
Select each item to learn more.
Reasonable Doubt
Reasonable doubt is when, after consideration of all evidence and comparison of facts, the
jury cannot say with certainty that a conviction is warranted. Reasonable doubt exists when
facts and thoughtful deliberation cannot remove the possibility of doubt in a given case.
Fourth Amendment
The Fourth Amendment protects individuals against unreasonable searches and seizures.
Fifth Amendment
The Fifth Amendment protects defendants against self-incrimination. Under the well-known
Miranda warning, for example, all defendants have the right to remain silent.
Sixth Amendment
The Sixth Amendment provides defendants the right to a speedy and public trial and the right
to counsel.
Fourteenth Amendment
The Fourteenth Amendment extended the provisions of the Bill of Rights to the state level.
Citizens are protected from infringements on their rights by state governments in addition to
the federal government.
Due process is a concept that incorporates fairness, protection of the individual, and
accountability of the government.
True
False
The government maintains the right to acquire personal property at any given time,
regardless of whether the citizen has taken time to prepare to vacate the property.
True
False
Review
If, during the criminal proceedings, the government were to seize Francine’s house or
other personal property, that action would violate the concept of due process. Police
also must have probable cause before detaining Francine after her arrest. Although
Francine has been charged with a very serious crime, she is still entitled to have her
rights protected under the law. Members of the criminal courts system must follow
specific guidelines and Constitutional amendments to ensure that Francine’s individual
rights, and all rights of people who are accused of a crime, are protected.
Summary
In cases where the defendant claims self-defense, such as Steven’s, defense attorneys
will offer the legal defense of self-defense for his criminal action to protect a potentially
innocent individual. These types of cases illustrate that while the defendant’s action
was voluntary, this definition can change depending on circumstantial issues. The
adversarial system of U.S. courts also allows both parties in a case to present each
side of the story to provide the fullest account of what happened.
The outcome of this case will be determined based on current beliefs in society and
guided by the traditional structure of the law, which directs the penalties of the case.
To ensure due process, Steven’s life, liberty, and property will be protected during the
proceedings.
Module 02: Quiz

Due No due date

Points 15

Questions 15

Time Limit 30 Minutes
Instructions
Quiz
This quiz relates to the following
module objectives:






Define terms related to crime
Describe legal defenses
Describe the events that take place after an arrest
Describe the adversarial system
Define terms related to adversarial system
Summarize due process
Read the following before entering your
Quiz:





You will be able to enter this quiz one time.
You will have 30 minutes to complete the quiz.
If you lose your Internet connection during your assessment, log on again and re-enter.
To pass this course, you must earn at least 70% of the total possible points for the course. If you
are concerned about your knowledge of the information covered by Module 2, please go back
and review the material prior to entering Quiz 2.
This is an open book assessment. In the context of this assessment, that means you may only
use the eText, Module Presentations and personal paper notes based on these. Searching the
internet for answers, accessing previous assessments, or using additional resources of any
kind is not permitted. Please see the Academic Code of Conduct for more information.
Course Resources
Module 2: Reading
(pp. 290–322)
Module 2: Presentation
Submitting Your Quiz:

When you are finished with this quiz, click the Submit for Grading button.
Attempt History
LATEST
Attempt
Time
Score
Attempt 1
16 minutes
11 out of 15
Score for this quiz: 11 out of 15
Submitted Apr 2 at 9:53am
This attempt took 16 minutes.
Question 1
1 / 1 pts
Which is the legal term to describe "acting in a careless manner"?
Correct!
negligence
mens rea
foreseeability
actus reus
Question 2
0 / 1 pts
When a defendant's actions were in response to rational fear of immediate death or serious
bodily injury, this is called ________.
insanity
Correct Answer
coercion
entrapment
You Answered
self-defense
Question 3
1 / 1 pts
Which of the following is an example of involuntary intoxication?
The defendant became intoxicated on over the counter medicine.
The defendant was not of the legal drinking age.
The defendant didn't mean to drink as much as he did.
Correct!
The defendant's drink was spiked by another person.
Question 4
1 / 1 pts
Which of the following is NOT one of the bases of the adversarial system?
It relies on the rules of evidence.
Justice is best served through courtroom argument.
It upholds checks and balances.
Correct!
The accused is guilty until proven innocent.
Question 5
1 / 1 pts
In an adversarial system, the outcome of the trial:
often favors the defendant.
often favors the plaintiff.
is usually disputed by the public.
Correct!
cannot be predicted before the trial occurs.
Question 6
1 / 1 pts
Which concept might undermine a strategy of self-defense?
conspiracy
Correct!
duty to retreat
equal power
equal force
Question 7
0 / 1 pts
The defense of ________ can be claimed when an individual engages in action that is a
response to a rational fear of immediate death or serious bodily harm.
You Answered
self-defense
mistake of fact
insanity
Correct Answer
coercion
Question 8
1 / 1 pts
________ is the legal defense based on the principle that coming to the defense of others is
permissible if the defendant believes that force is necessary to protect others.
Correct!
Prevention
Self-defense
Entrapment
Duress
Question 9
1 / 1 pts
What happens at a preliminary hearing?
Correct!
The police demonstrate probable cause.
The charges are read for the defendant.
The defendant enters a plea.
The judge makes a decision.
Question 10
1 / 1 pts
Booking includes recording all of the following EXCEPT ________.
offense involved
Correct!
bail amount
time of the arrest
identity of the arrestee
Question 11
0 / 1 pts
Which is the first official hearing after arrest?
nolo contendre plea
Correct Answer
preliminary hearing
conviction
You Answered
arraignment
Question 12
1 / 1 pts
Which is a guiding principal of U.S. law?
Correct!
The defendant is considered innocent and must be proved guilty.
The defendant is presumed guilty and must prove his innocence.
The defendant has no presumption of guilt or innocence.
The defendant is presumed guilty but the prosecution must also prove all the elements of the
crime.
Question 13
0 / 1 pts
Ideally, how competitive should the U.S. judicial system be in practice?
You Answered
fiercely competitive and often unpleasant
Correct Answer
more cooperative than competitive
more competitive than cooperative
not competitive at all
Question 14
1 / 1 pts
Which two constitutional amendments cover due process?
fourth and fifth
fourth and fifteenth
fifth and fifteenth
Correct!
fifth and fourteenth
Question 15
1 / 1 pts
When applied to the right to ________, due process means the government cannot apply
capital punishment without having exhausted all appeals and related options.
property
liberty
Correct!
life
happiness
Quiz Score: 11 out of 15
Overview
The U.S. Constitution, the backbone of the criminal courts system, was not a
document that originated entirely from the minds of the men who penned it. In
actuality, many other documents and legal systems helped contribute to the ideas
within this document. Several concepts in the Constitution would be new, but even
these ideas were associated with the design of consolidated government and built on
federal relationships that had been previously established. For example, the due
process law of the Constitution can be traced back to the Magna Carta of 1215. The
Manga Carta was the foundation of English government and protected citizens from
tyrannical political figures who wished to misuse their power. The men who wrote the
Constitution drew on these and other “checks and balances” concepts to create a
division of power influenced by their British history and heritage.
Did you know that the phrase “innocent until proven guilty” can be traced back to
Islamic and Roman law and was coined by an English lawyer in the seventeenth
century? The criminal courts system as we know it today has undergone many
changes. It is a reflection of modern day society, but the criminal courts system also
draws from a wide range of historical influences. This system is a comprehensive
approach to fighting crime. As an institution of the law, the court system directly
upholds social control and sanctions those who violate laws with criminal penalties.
These concepts have been around for centuries, dictated and guided by social change.
Introduction
Gerald is an English farmer during the 1600s who owns a number of livestock and a
modest piece of land. Gerald is accused of stealing seven pigs from one of his
neighbors, Henry. In the Anglo-Saxon courts, Gerald would have no right to any kind
of counsel, and his neighbor might not need a substantial amount of proof to prove
that Gerald is guilty of this crime. In contrast to how Gerald’s case would have been
treated in the Anglo-Saxon courts, it is clear that the modern court system has evolved
significantly from this older method of criminal proceedings.
The Magna Carta
The Anglo-Saxon courts form the basis of the current American system. Both the
Anglo-Saxon and current American court systems are rooted in adversarial philosophy
and are based on the premise that a defendant is innocent until proven guilty.
However, the current American system has mechanisms in place for greater protection
of individual rights than the Anglo-Saxon system did.
In 1215, King John, under pressure and threat of war from England's land barons,
signed the Magna Carta, which acknowledged individual rights to one's property and
to due process. The concepts of the Magna Carta were brought to America by the early
colonists and served as the basis for the U.S. Constitution. The Anglo-Saxon system
differed from the current American system in several ways: The defendants had no
right to counsel, proof of guilt was not well-defined, and the government could call as
many witnesses as it felt necessary to prove its case.
Over the next few screens, we will look back at the events that led to the development
of the current American court system.
Concepts of the Magna Carta
The Magna Carta was intended to limit governmental powers and put common-law rights
into writing. Although the Magna Carta acknowledged basic rights, the legal system was not
as refined as it is today. For example, trials were not based on the same premises as today’s
trials. There were three common types of trials in Anglo-Saxon times:
Select each item to learn more.
Trial by Ordeal
In trial by ordeal, the accused was subjected to some sort of ordeal, such as being
exposed to fire or being bound and thrown into a body of water. Defendants who survived the
ordeal were presumed to be innocent. The belief at the time was that God intervened on
behalf of an innocent person, illustrating the influence of religion at that time in history. The
Pope banned this approach to justice in 1215, the same year the Magna Carta was signed,
speeding up the transition to jury trials.
Trial by Compurgation
Trial by compurgation required both parties to obtain compurgators, or people
who would vouch for their innocence. More often than not, the defendant would find
12 of his neighbors who would attest to his honesty or innocence. Trial by
compurgation is the basis for our current jury system.
Trial by Battle
In trial by battle, defendants or their representatives (usually champion fighters)
were placed in physical conflict with the accused. Like trial by ordeal, this type of
trial illustrates a strong religious influence. Anglo-Saxons believed that God aided
the victor in battle, who then won the trial. If the defendant lost the battle, he was
executed and his estate was awarded to the Crown. If the accuser lost, he was
incarcerated as a false accuser.
Some legal historians liken trial by battle to the current American court system, in
which attorneys engage in battle on behalf of their clients, but by using legal
knowledge and evidence rather than physical means.
History of Juries
Early juries were typically a body of neighbors who were known to both parties, summoned
by a police officer to provide answers to a question. Early juries were more like the witnesses
of today because they just provided their version of the issue at hand. There were two types
of early juries: accusing juries, which named criminals to be found and tried, and trial
juries, which heard specific cases. The Crown held ultimate control over jurors and had the
power to fine and imprison jurors who rendered questionable verdicts. Learn more about the
history of juries.
Select each item to learn more.
1066
English courts began to use juries to settle land disputes. The use of juries spread slowly
(over centuries) to other types of trials. During the transition period, trial by ordeal, battle,
and compurgation coexisted with the developing jury system.
Fourteenth and Fifteenth Centuries
Juries relied on outside witnesses to augment their knowledge of a case. In 1670,
the landmark trial of William Penn and William Mead ended the practice of jurors
being punished for rendering a verdict that disagreed with the opinion of the Crown.
Eighteenth Century
Juries consisted entirely of individuals with no prior knowledge of the case.
Juries, Then and Now
Let’s take a look at a comparison of early and contemporary juries.
Select each item to learn more.
Early Juries



Jurors knew both the defendant and the plaintiff.
Jurors provided their versions of the events in question.
Jurors were punished for questionable verdicts or verdicts that did not agree with the
opinion of the Crown.
Contemporary Juries



Jurors are unknown to both defendant and plaintiff.
Jurors base decisions on evidence provided during the trial.
Judges can set aside verdicts, but jurors are not punished for their decisions.
Colonial and Early American Courts
The following are important facts about colonial courts in America:
Select each item to learn more.
Courts were overseen by the Crown until the Revolutionary War.
Early judicial functions were usually fulfilled by a panel consisting of the governor and his assistants. S
criminals were sent back to England for trial.
Some states were too small to form juries, and court sessions were held only three or four times per yea
courts served many functions, including legislative and executive duties.
Religion had a strong influence on the law.
Local courts were created in the seventeenth century to handle small criminal and civil cases.
Some state laws have strong foreign influences, such as Louisiana’s Napoleonic Law and Spanish and
Mexican law in the Southwest.
As the American population grew and legal needs changed, the system adapted. Courts became more
specialized and certain crimes were tried in specific courts.
1
Juries were used to settle land disputes.
2
King John signed the Magna Carta.
3
The practice of punishing jurors for their decisions was eliminated.
4
Courts became more specialized to meet diverse needs.
Most of early American law was based on secular ideas.
True
False
The laws of some states are influenced by foreign law.
True
False
Until the Revolution, American courts were overseen by the King of England.
True
False
Courts remained the same as the American population grew.
True
False
Review
The modern court system is different in many ways from the Anglo-Saxon courts on
which it was based. Gerald, the man accused of stealing his neighbor’s pigs in the
seventeenth century, might have been subjected to a number of trials. If he had been
accused of this crime before 1215, he may have been exposed to a fine as punishment.
After 1215, Gerald would have had to supply someone who would vouch for him and
attest to his innocence. If this option was not available, Gerald would be forced to
battle with his neighbor or have someone else battle for him. If Gerald lost, he would
be executed. Though these proceedings are very different from how the modern court
system works, these early courts set a precedent for due process and trial by jury in
the modern court system.
Introduction
Frank is accused of stealing his neighbor’s new television. When the defendant, Frank,
appears before the court in modern day United States, the case begins in a state trial
court. At the conclusion of Frank’s trial, Frank has the opportunity to appeal the
outcome if he believes that the proceedings of the trial court were conducted
improperly. The modern court system is set up so that it allows both the defendant
and the victims to feel as though they have opportunities to make their case and
ensure justice has been served.
Important Concepts
The U.S. court system can appear complicated, but it is actually systematic and logical.
Before detailing the specific features of the court system, let’s summarize the basic
concepts that form the foundation of its organization.
Regardless of how courts are named, they operate according to a dual system of
federal and state courts.
Federal and state courts typically function independently of each other, but state cases
are frequently appealed to federal courts.
Trial courts hear cases initially, and appellate courts hear only those cases that
have been tried and are then appealed because the defense or prosecution believes
the trial was conducted improperly. These two levels of courts form hierarchical
jurisdiction, meaning that cases must be tried in a trial court before they can be
heard in an appellate court.
State Courts
Even though courts may take various names depending on the state in which they are located,
the general function of the courts remains the same. Note that cases tried in the two courts of
original jurisdiction go to the appellate court when the case is appealed.
Sources of state law include state constitutions, state penal codes and local ordinances, and
laws enacted by state and local governments.
State Court Jurisdictions
State courts have varying levels of jurisdiction:
Select each item to learn more.
Courts of Original Jurisdiction
Trial courts are also known as courts of original jurisdiction because they are
where the trial process originates. There are two types of courts of original jurisdiction:
courts of general jurisdiction and courts of limited jurisdiction.
Courts of Limited Jurisdiction
Courts of limited jurisdiction try only misdemeanors, which are less serious
crimes than felonies, such as shoplifting and small claims suits. These courts also try traffic
tickets and small civil cases. Courts of limited jurisdiction are not courts of record, meaning
that no official transcripts of trials are kept.
Courts of General Jurisdiction
Courts of general jurisdiction try both misdemeanor and felony cases. In addition,
courts of general jurisdiction may try larger civil suits. Courts of general jurisdiction are
courts of record, meaning that official transcripts of court proceedings are kept. Courts of
general jurisdiction can serve as appeals courts for courts of limited jurisdiction. Such appeals
are known as trials de novo.
State Appellate Courts
State appellate courts hear only cases that have already been tried in a court of original
jurisdiction and that the defense or prosecution believes have been handled inappropriately.
Cases presented in appellate court are not based on presented evidence; rather, attorneys
argue points of law. If a state appellate court finds a case to be invalid, the appellate court
will reverse and remand the case back to the court of original jurisdiction to be
retried under strict directions from the appellate court. The same evidence is used, depending
on the instructions from the appellate court, but a new jury is selected.
Federal Courts
Federal courts try cases for crimes, such as treason and mail fraud, that are considered federal
offenses. In addition, federal courts try cases of felonies committed on Native American
reservations, cases involving two states in which neutral jurisdiction is needed, and cases
involving navigable waterways.
Jurisdictions within the federal system are called circuits, which are geographic divisions
consisting of state groupings. Like state courts, federal courts consist of levels that create
hierarchical jurisdiction.
Jurisdictions are called circuits
Federal Courts
State Courts
Hear cases of felonies committed on Native American reservations
Federal Courts
State Courts
Hear cases involving navigable waterways
Federal Courts
State Courts
Some courts are courts of record and some are not
Federal Courts
State Courts
Include courts that try misdemeanors
Federal Courts
State Courts
May base decisions on local ordinances
Federal Courts
State Courts
1
district court
2
U.S. court of appeals
3
U.S. Supreme Court






















































Thirteen Federal Courts
Federal Court Hierarchy
Each federal circuit has three levels. The levels are:
Select each item to learn more.
District Courts
Federal district courts are the courts of original jurisdiction in the federal circuit, and
are therefore the courts in which all federal cases are first tried. District court judges are
appointed for life by the U.S. president with approval from the Senate.
U.S. Courts of Appeals
U.S. courts of appeals are also known as circuit courts of appeals and are the
intermediate level of appeals in the hierarchy. Typically, three randomly selected
judges hear cases in a U.S. court of appeals.
U.S. Supreme Court
The U.S. Supreme Court is the highest court of appeals in the nation. It can serve
as a court of original jurisdiction in cases where a state is a party in the case or in
cases that involve an international figure. To be heard in the Supreme Court, a case
must present a significant federal issue and have exhausted the possibilities for
resolution either in a lower court or by some other remedy. The Supreme Court is
the only court that can declare a law unconstitutional. For example, the death
penalty is unconstitutional in many states and is a subject of much debate within
U.S. law.
Court Hierarchy
The courts are set up in a hierarchy that defines the jurisdiction of each court in
relation to others. The decisions of the state supreme courts are binding on lower
state courts (appellate and trial) of the same state. The decisions of the supreme court
of one state court, however, are not binding on the courts of other states.
For federal courts, decisions of higher federal courts are binding on lower federal
courts. State courts are usually bound by all decisions about constitutional issues. The
U.S. Supreme Court is the ultimate appellate court.
If a case is to be appealed, it must go from the trial court to the lower appellate court;
it cannot go directly to a higher appellate court. Criminal convictions in state courts
can be appealed to federal courts only if there is a constitutional right in question.
courts of original jurisdiction
where the trial process originates
courts of limited jurisdiction
only try small misdemeanor cases
courts of general jurisdiction
try both felony and misdemeanor cases
state appellate courts
only hear cases that have been tried in a court of original jurisdiction
Review
While Frank’s trial for stealing from his neighbor would follow a progression within the
court system to determine whether or not he is guilty and the severity of his
punishment if he is found guilty, the type of case would dictate the court jurisdiction
for his trial. The specific laws and constitutions that govern the actions of the court
for Frank’s case may also vary from state to state, as each determines the appropriate
penalty to exact justice. After the outcome of the trial, Frank also has the opportunity
to appeal the outcome if he feels the court proceedings were conducted unfairly.
Summary
The modern day court system draws upon the principles of the Anglo-Saxon courts,
but today, the concepts of justice and fairness are more sharply defined. In modern
cases, the defendant has a chance to undergo a number of proceedings and is funneled
through a specific court system based on the severity of the defendant’s crime. If the
defendant is accused of committing a felony on a Native American reservation, the
federal court will hear the case. If the defendant’s case is considered a misdemeanor,
it will be heard in a state court. For a defendant’s case to reach the Supreme Court,
the case has to present a federal issue that cannot be resolved in lower courts.
Module 03: Quiz

Due No due date

Points 15

Questions 15

Time Limit 30 Minutes
Instructions
Quiz
This quiz relates to the following
module objectives:






Define terms related to the history of juries
Outline the history of courts from Anglo-Saxon courts to modern day courts
Define terms related to modern courts
Describe the difference between federal and state courts
Explain the difference between trial courts and appellate courts
Describe court structures
Read the following before entering your
Quiz:





You will be able to enter this quiz one time.
You will have 30 minutes to complete the quiz.
If you lose your Internet connection during your assessment, log on again and re-enter.
To pass this course, you must earn at least 70% of the total possible points for the course. If you
are concerned about your knowledge of the information covered by Module 3, please go back
and review the material prior to entering Quiz 3.
This is an open book assessment. In the context of this assessment, that means you may only
use the eText, Module Presentations and personal paper notes based on these. Searching the
internet for answers, accessing previous assessments, or using additional resources of any
kind is not permitted. Please see the Academic Code of Conduct for more information.
Course Resources
Module 3: Reading
(pp. 53–80)(pp. 81–106) (pp. 139–
166)
Module 3: Presentation
Submitting Your Quiz:

When you are finished with this quiz, click the Submit for Grading button.
Attempt History
LATEST
Attempt
Time
Score
Attempt 1
26 minutes
12 out of 15
Score for this quiz: 12 out of 15
Submitted Apr 12 at 4:28am
This attempt took 26 minutes.
Question 1
1 / 1 pts
Which ancient form of justice required the accused to prove their innocence by surviving a
life-threatening physical experience?
trial by compurgation
Correct!
trial by ordeal
trial by jury
trial by battle
Question 2
1 / 1 pts
Which term describes a system of justice in which a case may move from a trial to an
appellate court?
limited jurisdiction
original jurisdiction
hierarchical justice
Correct!
hierarchical jurisdiction
Question 3
0 / 1 pts
A criminal trial conducted by the military is called a(n) ________.
official hearing
defense panel
Correct Answer
court martial
You Answered
military tribunal
Question 4
1 / 1 pts
________ courts are used to determine the facts of a case.
Supreme
Correct!
Trial
General
Appellate
Question 5
1 / 1 pts
Which are the federal courts of original jurisdiction?
circuit courts
common courts
Correct!
district courts
state courts
Question 6
1 / 1 pts
The writ of ________ is an order from a higher court that requires a lower court to send a
case and a record of its proceedings to the higher court for review.
per curiam
en banc
Correct!
certiorari
centorum
Question 7
1 / 1 pts
What does "en banc" mean?
that one judge writes the opinion
that one judge hears the case
that the case is heard on appeal
Correct!
that all the judges hear the case together
Question 8
1 / 1 pts
Which term describes what an appellate court should do when granting an appeal?
direct and rehear
return and rehear
Correct!
reverse and remand
admonish
Question 9
0 / 1 pts
The estimated number of state courts in place today is ________.
Correct Answer
16,000
8,000
You Answered
5,000
25,000
Question 10
1 / 1 pts
Which type of court does NOT hear any trials?
Correct!
appellate court
Supreme Court
district court
trial court
Question 11
1 / 1 pts
Where are the majority of criminal and civil cases heard?
federal courts
appellate courts
Supreme Court
Correct!
state courts
Question 12
1 / 1 pts
How can courts be the same from state to state?
The courts are funded similarly.
The courts all use the same naming system as the Federal courts.
The state laws in the courts are similar.
Correct!
The courts include a trial and an appellate level.
Question 13
1 / 1 pts
Why is the trial of Penn and Mead important?
Penn and Mead became the first modern judges.
This trial was where the Magna Carta was signed.
This trial was the first American jury trial.
Correct!
This trial resulted in jurors no longer being at risk for their decisions.
Question 14
0 / 1 pts
Which type of system were Anglo-Saxon courts?
authoritarian
You Answered
courts of battle
Correct Answer
adversarial
retributory
Question 15
1 / 1 pts
In court parlance, the minimum number of judges required to decide a particular matter is
called a ________.
Correct!
quorum
perimeter
threshold
frontier
Quiz Score: 12 out of 15
MODULE 4
Overview
Gabriel and Linda are both members of the criminal court system. As they step into
the courtroom for their clients’ cases to be heard, they have the same motive. Both
Gabriel and Linda are working toward a favorable outcome for the people they are
representing, but only one will succeed. That is because these two attorneys are
representing different sides of the same case. Gabriel represents the prosecution for
the case, and Linda represents the defense. In this case, Linda will defend Paul, who
is accused of driving under the influence; Gabriel will try to prove Paul’s guilt and
recommend suspension of Paul’s license as a way to help keep the streets safe.
Paul knows that if he is charged with driving under the influence, he could face
thousands of dollars of legal fees and have his license revoked. This charge will also
end up on his criminal record and appear in his employment history. Paul has decided
to plead guilty in this case, as his intoxication level and the police report clearly show
beyond reasonable doubt that he was inebriated at the time of his arrest. However,
Linda’s job is to illustrate that Paul is an upstanding citizen and, because this is his
first offense, ensure that he is not fined or charged in a way that is too harsh for his
crime. Linda will attempt to convince the judge and jury that Paul can be rehabilitated
successfully into society, will stay off the roads while intoxicated, and is fully deserving
of a “second chance.”
Introduction
Ryan is a government-appointed During a trial, the prosecutor represents the victim.
True
False
A prosecutor must have probable cause to file charges against a suspect.
True
False
and is currently serving his second year. Ryan will serve as representative for the
state in a criminal case concerning a drunk-driving accident. The defendant in the case
appeared to have been driving under the influence when he swerved into a
neighboring lane and injured another driver on impact. Ryan will need to consider all
the evidence before filing charges. Filing charges is just one of the many duties a
prosecutor must fulfill when working in the American court system.
The Prosecutor’s Role
The prosecutor is an elected position in many jurisdictions. In some states, the
governor appoints the prosecutor with the consent of the state senate. Prosecutors
are appointed for five-year terms and are responsible to the state’s attorney general.
Examples of prosecutors are the U.S. Attorney General, states’ attorneys general, and
district attorneys.
The prosecuting attorney represents society rather than individual victims, and
presents the state’s case against the defendant in criminal and civil cases.
The Prosecutor's Duties
One of the prosecutor’s duties is to represent the cause of justice. To do this, the prosecutor
selects the most effective method for approaching a case. In some circumstances, for
example, the cause of justice might best be served by dropping the charges or entering a plea
bargain.
The prosecutor is also responsible for allocating legal resources wisely, fairly, and in a
manner that supports justice. In making decisions, the prosecutor must weigh cases based on
the seriousness of the crime and the available supporting evidence.
In addition to the very broad responsibility of supporting justice, the daily tasks of a
prosecutor include:
Select each item to learn more.
Planning and supervising investigations
Preparing cases
Prosecutorial Discretion
Prosecutorial discretion is the prosecutor’s right to select the most appropriate course of
action in a particular case. The prosecutor may ask for a plea bargain, dismiss the charges, or
refile charges, based on the circumstances. Having this right allows the prosecutor to tailor
his or her approach to cases to their individual circumstances and to make the best decision in
the public interest. Learn about the implications of prosecutorial discretion:
Select each item to learn more.
Implications
As a result of prosecutorial discretion, prosecutors have considerable influence. Prosecutors’
decisions are rarely reviewed. In contrast, a judge’s decision is almost always reviewed by a
higher court as part of the appellate process.
A significant factor in every prosecutor’s discretion should be his or her own sense of
morality. Although prosecutors do not have unlimited discretion, judgment and ethics play a
significant role in the prosecutor’s duties.
Influences on Prosecutorial Discretion
Several factors influence prosecutorial discretion and prosecutors’ resulting decisions.
Decisions prosecutors face are not straightforward, so they must carefully choose the cases
they pursue. Some of the factors that guide this choice are legal (for example, mandatory
sentencing) and others depend on the particular case at hand (for example, quality of
evidence).
Select each item to learn more.
Mandatory Sentencing
Though they vary from state to state, mandatory sentencing guidelines have reduced a judge’s
ability to alter sentences based on the advice of the prosecutor. Mandatory sentencing
guidelines require judges to impose a specific sentence for certain repeated crimes. As a
result, efforts to modify sentencing must be done before trial through plea bargaining or
choices regarding the types and numbers of charges brought against the accused. This
responsibility lies with and is at the discretion of the prosecutor.
Quality of the Evidence
If evidence is weak, the prosecutor may elect not to pursue the case, leaving legal
resources for stronger cases. For a prosecutor to have a legitimate case, the
evidence must indicate at least probable cause that the crime happened and that the
suspect was the perpetrator. Most prosecutors choose not to pursue a case if they
don’t have enough evidence to win.
Merits of the Case
A prosecutor may believe that the case is not winnable for a variety of reasons. It
may not be in the interest of justice or the public to pursue certain cases. A
prosecutor takes into account the characteristics and merits of each case when
deciding whether to pursue it.
Availability of Resources
Legal resources for pursuing cases are limited. Only a certain number of cases can
be heard; as a result, prosecutors must be selective in the cases they bring to trial.
Available resources must be allocated to those cases that, if tried, will most benefit
the public good
Policies of the Prosecutor’s Office
Policies can vary among prosecutor’s offices, and some offices choose not to
prioritize certain cases. Some offices have no drop policies that allow prosecutors to
proceed with a case (for example, a domestic violence case) even if the victim wants
to drop the charges.
Public Opinion
The prosecutor’s office may consider how the public views a case or the case’s
circumstances because the office has a high profile and is routinely scrutinized by
the media. For example, in a case in which a man watched a little girl be sexually
assaulted and killed without intervening, the public wanted him to be held legally
liable for not acting. However, at that time of the incident he was not required by
law to act. Considerations such as public opinion play a role in prosecutorial
discretion and how the prosecutor’s office may choose to pursue this case.
How Do Prosecutors File Charges?
After deciding to file charges, the prosecutor must decide which charges and how many
counts of each charge will be filed. A prosecutor follows these steps in determining the
charges to file:
Select each item to learn more.
Consider Evidence
Evidence for charges must show there is at least probable cause that the crime was
committed and that the suspect is the perpetrator. Some experts believe that evidence must
show more than probable cause. The prosecution bears the burden of proof, meaning
that the prosecutor must show and convince a jury, beyond a reasonable doubt,
that the accused committed the crime. Evidence plays a significant role in the prosecution’s
consideration of a case’s merit.
Initiate Charges
The prosecution initiates charges by filing one of two documents. The first,
an information, is a document filed with the courts that lists the charges against
the defendant. It is used when the defendant agrees to waive his or her rights to
prosecution by indictment. An indictment, the second document, is issued by
a grand jury and states that enough evidence to press charges has been found. An
indictment is required in cases that are punishable by death or imprisonment for
more than a year (unless it is waived by the defendant, as stated above).
Determine Charges
The prosecutor takes many factors into consideration when deciding what charges to
file against a defendant. These factors include the quality and quantity of evidence,
the wishes of the victim, the impact the charges may have on other pending cases,
and the deterrent effects of the case on other possible offenders. During a trial, the
prosecutor represents the victim.
True
False
A prosecutor must have probable cause to file charges against a suspect.
True
False
What rights does a prosecutor have under prosecutorial discretion?
Prosecutorial discretion gives the prosecutor the right to pursue a case as he or she sees
fit. This means he or she can pursue, dismiss, or modify the charges placed against the
accused.
Review
Before Ryan steps in the courtroom, he completes research on the defendant, a 40year-old man named Sam. Sam has never received a DUI in the past and has no
criminal history. However, Sam’s high level of intoxication during this incident leads
Ryan to consider his reckless judgment and decide that Sam deserves to be punished
to the fullest extent of the law. Ryan weighs these facts carefully, and they influence
his decision making regarding the case. Ryan’s job is to represent public interest and
determine what charges to file as the most appropriate course of action to ensure that
justice is carried out under the law.
Introduction
Alan is a prosecuting attorney. Today he is prosecuting a case in which the defendant
is accused of assault. To fulfill his duty as the prosecutor, Alan needs to collaborate
with other members of the court proceedings, such as the defense. The defense
attorney has her client’s interest in mind, and her goal during her interactions with
Alan is to present the defendant’s circumstances favorably. Based on their
interactions, Alan may dismiss the charges, refile the charges, or work together with
the defense attorney to decide on a plea bargain.
The Prosecutor and Other Courtroom Participants
Prosecutors cannot act alone to bring justice. They must work with other groups involved in
the judicial system. In most states, the probation department works closely with prosecutors
in court. Communication and teamwork among all the groups involved are essential for
effective prosecution. Learn more about the groups prosecutors work closely with.
Select each item to learn more.
Law Enforcement Officials
Law enforcement officials include the police, probation officers, and parole units. The actions
of law enforcement officials affect prosecutors, while the policies of the prosecutor’s office
influence law enforcement practices. Prosecutors rely heavily on law enforcement officials to
reliably and legally collect and preserve evidence. Reciprocally, the policies of the
prosecutor’s office influence the type of evidence officials collect and the laws on which they
focus. Prosecutors also base their decisions, in part, on the reports of probation and parole
officers.
Federal Agencies
Similar to local law enforcement officials, federal agencies play a role in the collection and
preservation of evidence. Federal prosecutors must work effectively with these agencies to
legally and reliably collect evidence.
Defense Counsel
One of the prosecutor’s responsibilities is to seek out all facts related to a case in a process
known as discovery. Discovery means that all evidence—including that favorable to the
defense—must be collected in the interest of justice. The prosecutor’s relationship with the
defense attorney is critical to this process. The primary role of the defense attorney, which
will be discussed later, is to represent the defendant.
Judges
Judges make decisions about sentencing and grant continuances based on the current demand
for prosecutors and the availability of space in jails and prisons. Prosecutors must consider
these aspects of a case.
Grand Juries
The purpose of a grand jury is to determine whether there is enough evidence to warrant a
trial. As such, the grand jury is an inquisitorial body, meaning that it has the legal
authority to investigate and explore the crimes within its jurisdiction. Employing a grand jury
is not necessary to file charges; grand juries are often reserved for federal crimes, serial
crimes, or crimes involving public officials. A petit jury is the more common jury of 12
individuals that hears cases presented in the courtroom.
The process in which the prosecutor seeks out all facts related to a case is known as
a discovery
. Known as
an inquisitorial
body, a grand jury has the legal authority to investigate and explore crimes within
its jurisdiction. A more common type of jury, consisting of 12 individuals is known
as
a petit
jury.
The prosecutor relies heavily on police to collect and preserve evidence for a case.
True
False
Discovery means that the prosecutor must seek out all facts, even those that favor
the defense.
True
False
A petit jury decides whether there is enough evidence to warrant a trial.
True
False
The prosecutor cannot use police reports as evidence.
True
False
Review
During the proceedings in this case, Alan may also have to factor in the impact of the
report of the incident by the law enforcement official who arrested the defendant. Alan
knows that the details in the report and other evidence that the police collected will
help him prosecute his case. Alan also knows how important it is to keep the lines of
communication open among all players in the courtroom so he can present the best
case possible and bring a sense of justice to the victims involved.
Review
During the proceedings in this case, Alan may also have to factor in the impact of the
report of the incident by the law enforcement official who arrested the defendant. Alan
knows that the details in the report and other evidence that the police collected will
help him prosecute his case. Alan also knows how important it is to keep the lines of
communication open among all players in the courtroom so he can present the best
case possible and bring a sense of justice to the victims involved.
Introduction
Sarah is a prosecutor for a case involving a DUI. The cameras at the traffic checkpoint
show images of the defendant, Stan, stumbling out of his car when he is questioned
by the police. Although this case may appear simple, Sarah still needs to collect a
great deal of evidence to prove her case. For more serious, complex criminal cases,
this process of acquiring sufficient evidence can sometimes take many months.
A prosecutor’s job is far from easy. After filing the charges, the prosecutor has many
other responsibilities to attend to, including acquiring evidence and ensuring that
evidence is admissible in court.
Circumstances Influencing Prosecutors
The prosecutor’s role presents numerous challenges. Consider how the following
circumstances might influence a prosecutor’s responsibilities:
Select each item to learn more.
As prosecutors deal with more complex crimes, the process of collecting evidence may extend over lon
periods of time and require sensitive work, such as tracking suspects. Such activity requires prosecutor
work closely with law enforcement officials to avoid obtaining evidence that is inadmissible because o
technicalities.
Victims are not always supportive of prosecution and may request to drop charges. In this situation, the
prosecutor must decide whether to comply with the victim’s request or pursue the charges in the public
interest, contrary to the victim’s wishes.
When a prosecutor makes an unpopular decision, he or she must educate the public by explaining the ra
for the decision.
Because the prosecutor must collect evidence that provides due process for both parties in a lawsuit,
prosecuting attorneys must act in a neutral manner during the investigative stage and consider all evide
fairly. If the case is not settled by plea bargaining, the prosecutor must take on a more adversarial role d
the trial. Prosecuting attorneys must be able to differentiate between these two roles.
After the Case
The prosecutor’s work is not finished after a trial concludes. He or she remains involved in
the following posttrial activities:
Select each item to learn more.
Appeals Process
Criminal cases are frequently appealed to a higher court. In death penalty cases, appeal is
mandatory. It is a prosecutor’s responsibility to defend the state’s case in the appellate courts.
Acquittal
An acquittal occurs when the jury is unable to find ample evidence to convict the
defendant. The defendant is not declared innocent, but the prosecution has not proved the
defendant's guilt beyond a reasonable doubt. The prosecutor may ask jurors how they reached
their decision.
Hung Jury
A mistrial is the result of a hung jury, which occurs when the jury cannot reach a
consensus on a verdict. Both the prosecutor and the defense attorney want to speak with
jurors when a mistrial occurs to gain information that will be helpful if the prosecutor decides
to retry the case.
Posttrial Evidence
Sometimes, evidence that could have convicted a defendant becomes apparent after the trial.
In these cases, defendants are protected under the Fifth Amendment of the U.S. Constitution,
which prohibits double jeopardy (trying an individual twice for the same crime). An acquittal
holds, regardless of evidence that may be presented after trial.
When a case ends in an acquittal, this means that the prosecution failed to prove
beyond a reasonable doubt the guilt of the
defendant
.
Sometimes the
victim
is not supportive of the prosecution, and so the prosecutor must decide to comply
with the request to drop charges or pursue it in the interest of the
public
.
0
Remaining
Previous Next
Hung Jury
The jury is unable to come to a decision about the case.
Acquittal
The jury does not have sufficient evidence to convict the defendant.
Appeals Process
The case is presented to a higher court.
What are some factors that influence the prosecutor’s work?
The amount of evidence needed to prove guilt can vary from case to case. The
prosecutor may have to collect a large amount of evidence, which will impact the
duration of the case.
The victim also influences the prosecutor. Sometimes the victim and prosecutor may
have differing views about the guilt or sentencing of the defendant.
Outside opinion also plays a role in the prosecution. A case may have popular public
support, or alternatively, public outrage.
Review
In this case, Stan has asked that the charges against him be dropped. However,
because Stan is a professional truck driver and possesses a commercial driver’s license
(CDL), Sarah has decided to move to revoke his CDL and suspend his regular license
for a period of time. This decision is very unpopular with the public because Stan is
regarded favorably in his small, rural community. In this case, it may be difficult for
Sarah to remain neutral, but it is her job to educate the public and explain how Stan’s
suspension from the road will help keep them safe.
Introduction
Adam is a public defense attorney. He has just been assigned to defend Justin, a man
accused of armed robbery. Upon their first meeting, Adam provides Justin with advice
and explains the possible legal consequences of Justin’s actions. As they move forward
in the case, Adam will develop a defense strategy and advocate for Justin’s rights to
ensure fairness throughout the trial, regardless of whether or not Justin is guilty of
the crime.
The Defense Attorney’s Role
The defense attorney’s role in the court system, like that of the prosecutor, can be complex.
The primary roles of the defense attorney are the following:
Select each item to learn more.
Providing Legal Advice
The defense attorney provides counsel to his or her client by informing the client of his or her
rights, recognizing violations to those rights, and pursuing the legal strategy that best
supports the client’s interests.
Arguing for Legal Innocence
It is important to note that legal innocence and factual innocence are not the same.
Legal innocence involves protection of the defendant’s legal rights. This approach is
a means of protecting those who are truly innocent.
Recognizing Violations of the Defendant’s Rights
A violation of the defendant’s rights can mean that the defendant is legally innocent.
For example, when a defendant is not provided due process at the time of his or her
arrest.
Arguing for Reduced Penalties when Appropriate
In some cases, the best legal strategy for the defense may be to negotiate a plea
bargain or seek lesser charges.
Professional Standards for Defense Attorneys
The relationship of the defense attorney to other courtroom participants encompasses several
professional and ethical considerations. Although the defense and prosecution may appear
adversarial in the courtroom, it is likely that they have worked cooperatively outside the trial.
At times, the roles of the defense attorney may conflict with one another.
Select each item to learn more.
Advocate
The defense attorney advocates for his or her client’s legal rights. Judgment and sound
decision-making skills are necessary for the defense attorney to represent the client
effectively while respecting the goals and ethics of the legal process.
Officer of the Court
As an officer of the court, the defense attorney must make ethical decisions that
influence both the case and the legal system. The defense attorney may experience
conflict between the roles of client advocate and officer of the court, resulting in
conflict within the courtroom group. In this position, the defense attorney must use
sound judgment and base his or her decisions on ethics and facts.
Public versus Private Defense Attorneys
If a defendant is unable to afford an attorney, the court appoints counsel provided by the
government. There are two types of counsel provided by the state:
Select each item to learn more.
Assigned Counsel
For each item, select the best answer.
The defense attorney is required to fulfill his or her responsibilities within the
framework established by legal ethics.
True
False
The defendant is not provided with an attorney if he or she cannot afford one.
True
False
The defense attorney must always balance the interests of his or her clients with
respect for the legal system.
True
False
The goal of the defense attorney is always to argue for the innocence of his or her
client.
True
False
0
Remaining
<>
Public Defender
Works only for the state
More likely to defend serious criminal cases
Private Attorney
Typically the more lucrative of the two positions
May be assigned clients from the state in addition to private clients
Review
In this case, Justin agrees with Adam’s defense strategy. The prosecution has a
substantial amount of evidence against Justin, including video surveillance tapes and
a number of eye witnesses who have agreed to testify against Justin; therefore, Adam
suggests they try for a plea bargain. If Justin wanted to pursue an unrealistic outcome
for the case, such as pleading not guilty and having all charges dropped, this would
be a significant challenge for Adam, although not an uncommon situation for any
defense attorney. Although Adam knows Justin is guilty of the crime, it is his job to
make sure that Justin has a fair plea bargain.
Summary
As the prosecutor, it is Gabriel’s job to convince the judge or jury to convict the guilty;
likewise, it is his job to make sure he does not convict the innocent. As the criminal
defense attorney, Linda’s role is to defend her client, regardless of whether or not he
is innocent or guilty, and ensure that Paul’s rights are respected. As Gabriel presents
the facts surrounding the crime, Linda employs this information in favor of her client.
In this instance, Paul walks away with a suspended license based on his lack of past
criminal history. He is also required to pay a fine of $1,000 to discourage him from
drinking and driving in the future. Paul now knows that additional convictions will
increase his possibility of serving jail time and paying much higher fines, so it is likely
he will stay off the roads when drinking and stay out of trouble from now on.









Public and Private Attorneys









A client receives assigned counsel when the state provides counsel from a list of
available lawyers. Lawyers serving as assigned counsel are paid a flat fee for representing a
client. These lawyers typically have private clients in addition to those assigned by the state.
Public Defender (PD)
A public defender is an attorney who works only for the state. Public defenders have
no private clients.
Challenges Defense Attorneys Face
A defense attorney faces several challenges:
Select each item to learn more.
Some defense attorneys have clients who disagree with their defense strategy.
Keeping communication privileged between client and lawyer is difficult if it poses a legal and ethical
dilemma (for example, if the client decides to commit perjury on the stand).
Attorneys appointed by the court often lack experience, have heavy caseloads, and have limited resourc
trying the case.
Defense attorneys may feel moral and ethical conflict about defending criminals who committed repuls
crimes.
Defense attorneys are often a target of public outrage for representing individuals who have committed
heinous crimes.
The defense attorney is required to fulfill his or her responsibilities within the
framework established by legal ethics.
True
False
The defendant is not provided with an attorney if he or she cannot afford one.
True
False
The defense attorney must always balance the interests of his or her clients with
respect for the legal system.
True
False
The goal of the defense attorney is always to argue for the innocence of his or her
client.
True
False
eview
In this case, Justin agrees with Adam’s defense strategy. The prosecution has a
substantial amount of evidence against Justin, including video surveillance tapes and
a number of eye witnesses who have agreed to testify against Justin; therefore, Adam
suggests they try for a plea bargain. If Justin wanted to pursue an unrealistic outcome
for the case, such as pleading not guilty and having all charges dropped, this would
be a significant challenge for Adam, although not an uncommon situation for any
defense attorney. Although Adam knows Justin is guilty of the crime, it is his job to
make sure that Justin has a fair plea bargain.
Summary
As the prosecutor, it is Gabriel’s job to convince the judge or jury to convict the guilty;
likewise, it is his job to make sure he does not convict the innocent. As the criminal
defense attorney, Linda’s role is to defend her client, regardless of whether or not he
is innocent or guilty, and ensure that Paul’s rights are respected. As Gabriel presents
the facts surrounding the crime, Linda employs this information in favor of her client.
In this instance, Paul walks away with a suspended license based on his lack of past
criminal history. He is also required to pay a fine of $1,000 to discourage him from
drinking and driving in the future. Paul now knows that additional convictions will
increase his possibility of serving jail time and paying much higher fines, so it is likely
he will stay off the roads when drinking and stay out of trouble from now on.
Ss
Which of the following is the responsibility of the defense attorney and not the
prosecutor?
undermines the effort to establish guilt
How are public defenders compensated for additional effort on complex cases?
they are not compensated
MODULE 5
Overview
If you think of a courtroom as a stadium and a trial as a sporting match—like football,
basketball, or soccer—the prosecution and the defense represent the two opposing
teams. In the midst of this match, the judge serves as referee.
Just as sports fans want to see referees who make fair judgments on a play and do
not show bias toward one team by calling extra penalties, so too do all parties involved
in a courtroom—prosecution, defense, and jury—want to see an arbiter who will
maintain order and fairness during a trial. Judges are usually either appointed to the
position or elected and must demonstrate their ability to be an impartial party and of
merit to the justice system before even having the opportunity to serve as a judge.
Serving in the role of judge is not an easy task, nor is it one that is limited to action
in a courtroom during a trial. Judges must remain neutral when hearing cases, even
ones of a heinous nature, and have a variety of responsibilities to fulfill before and
after a trial. People who serve as judges often have extensive legal experience as
attorneys and undergo more training once they become judges. Judges must learn to
see the bigger picture when presiding over a case and interpreting the law.
Introduction
On September 27, 2011, the prosecution made their opening arguments against
Conrad Murray, pop singer Michael Jackson’s personal physician at the time of
Jackson’s death. Conrad Murray was accused of gross negligence and involuntary
manslaughter. In this case, Judge Michael E. Pastor was tasked with uncovering the
facts and interpreting the law. In the proceedings, Judge Pastor heard arguments from
both the prosecution and the defense.
Judges, like Judge Pastor, must weigh evidence carefully and work to ensure fairness
to both sides in a trial. However, judges have more responsibilities than just presiding
over cases; they have many jobs they must do before and after a trial occurs to help
facilitate justice. Judges also come from a variety of backgrounds, and an increasing
number of women and minorities now serve as judges. Having a wider variety of
people serving as judges can help overcome biases that might exist within the law
and court system.
The Judge’s Role
The judge is involved throughout the case. A judge is involved in many major decision
points during the legal process.
The Judge’s Role
The judge is involved throughout the case. A judge is involved in many major decision points
during the legal process.
The Judge’s Responsibilities
Learn about the responsibilities of a judge—before and after an arrest and prior to and during
a trial.
Select each item to learn more.
Prior to Arrest
Before a suspect is arrested, a judge must sign a warrant for the arrest. Typically, a law
enforcement official has to demonstrate probable cause before a judge will issue a search or
arrest warrant. In some cases, an arrest may be made without a warrant, which places a
burden on the defendant to show that no probable cause existed.
After Arrest, Prior to Trial
The judge becomes more visible and his or her roles more familiar to the public in
the pretrial period. During this time, the judge sets bail based on the advice of the
prosecuting and defense attorneys. He or she presides over the preliminary hearing
to determine whether there is enough evidence to hold a trial. The judge reviews
and rules on pretrial motions, which are requests to conduct the trial in a certain
manner. Examples of pretrial motions include requests to exclude evidence and
requests for a change of venue for the trial. At this time, the judge approves any
plea bargains and oversees the jury selection process.
During Trial
The judge manages daily events in the courtroom during a trial. Some even manage
mundane managerial tasks, such as making photocopies. He or she decides the type
of media coverage a trial will have and whether to prohibit the public from viewing a
trial to protect a vulnerable participant, such as a child. The judge ensures the trial
runs smoothly by ruling on objections raised by attorneys and holding sidebar
conferences as needed. He or she decides the appropriate penalties and sentences
when a conviction is made. During bench trials, in which there is no jury, the judge
is responsible for determining guilt in addition to serving as referee.
After Trial
In the case of an appeal, an appellate judge hears the case. It is important to
remember that multiple judges may be involved in one case as it progresses through
the levels of the court system.
Background and Education of Judges
Most judges serve in the state in which they were born and attended law school,
although this is not required. Most states require an individual to have a law degree,
admission to the state bar, and a specific amount of experience to be considered for
a judgeship.
In some states, a legal background is not necessary for certain judicial levels. For
example, lay judges (those with no law degrees) can serve as Justices of the Peace
(JPs) in some states and hear minor cases for which a jail sentences cannot be
imposed. However, a lack of legal education can present problems, such as a limited
knowledge of basic legal issues or the rules of evidence. This can lead to wrong
interpretations of the law and incorrect decisions.
Differences among Judges
Each judge is unique. Judges come from different backgrounds and walks of life, hold
different beliefs and philosophies, and practice different religions. Unfortunately,
sometimes these differences can impact how a judge perceives justice and fairness in
his or her court.
Take a moment and read a student’s observations about two different judges and how
their personalities made a big difference in the courtroom.
One Student's Observations
Many people may think that the sole duties of a judge are to supervise court proceedings and sentence
criminal defendants...They probably would not imagine that the typical court case involves a lot of
interaction between the judge and the defendant...From [months of] observations, I have noticed that
the defendants in one courtroom interacted more with their judge than did the defendants in the other
courtroom. The courtroom, which involved more communications was led by the friendlier of the two
judges, [Judge A, who]... speaks kindly to [his] courtroom and seems to be helpful and/or sympathetic...
The other judge [is] Judge B.
Judge A is a man of approximately fifty to fifty-five years of age. Upon entering the courtroom,
he does not require everyone in the room to stand while he approaches the bench. Instead, he simply
sits down and asks everyone how they are this morning. He then requests that people show, by a raise
of hands, the offenses with which they have been charged. As people raise their hands for their
respective offense, Judge A will inform the court what the minimum sentence is for the particular
offense. He makes it very clear to the court that if at all possible, he will try to give the defendant the
minimum sentence required if they choose to plead guilty.
Judge A calls up his cases one at a time, while joking with the court in between cases. Such
joking includes talking about the game the other night or, if numerous names are called consecutively
and all of the defendants obviously have failed to appear, Judge A will call Hannibal Lector to the bench
just to see if everyone is listening for his or her name. After the defendant stands in front of the court,
Judge A will ask the defendant if he or she wishes to say anything. This may account for the higher
magnitude of interaction in [this courtroom].
Judge B is a forty-five- to fifty-year-old woman. Before entering the courtroom, she has the bailiff
summarize the rules of her court. The bailiff then shows the court a video whereon Judge B appears to
explain further rules and procedures. Upon entering the courtroom, everyone in the room is asked to
stand and pledge allegiance to the flag. Judge B greets the court and then proceeds to call up cases.
She will call seven to nine cases at one time and have all of the defendants stand before her. Judge B
will then address each defendant independently until she is finished with the group, after which she will
call up the next group. She does not make any small talk with the court; she simply states the charge,
asks for a plea of guilty or not guilty, and then gives the sentence....
The apparent friendliness of Judge A and Judge B seemed to affect the degree of
communication between defendants and their respective judge. The defendants in Court A seemed to
request community service in lieu of fines or jail sentences much more frequently than those defendants
observed in Court B....Although some defendants in Court B asked for community service, most did not
request it unless it was offered to them....Some defendants in Court A even went as far as to ask the
judge for advice....The defendants in Court A seemed much more relaxed, more talkative, and less
scared than the defendants
in Court B....[Judge A] also told the court that he may suggest that certain defendants speak to the
district attorney before entering a plea [and] asked the court to trust him and follow such a suggestion
because it could be to their advantage....Judge A also displayed fairness when interacting with
individual defendants as they stood before the court....Judge A usually asked if the defendants were
able to pay their fines. If a defendants replied that he would be unable to fulfill such a responsibility,
Judge A would offer him community service or a payment plan. Such helpful and sympathetic behavior,
as exhibited by Judge A, may be a partial explanation why most defendants did not hesitate to ask for
community service or for lighter fines. Judge A made the defendants feel like he was on their side and
would be as fair to them as possible.
Source: Written by Sophie Kim (1993). Used with permission.
Influence of Females and Minorities in the Court
In lower-level courts, women and minority judges are becoming more common. Now, about
23 percent of the judiciary system is female, and about 12 percent is minority. Minority and
female judges are more likely to gain their positions through appointment than through
election.
Select each item to learn more.
Women as Judges
Justice Laverne Johnson of the Navajo Nation Branch is one of a growing number of women
in the judiciary. Since the 1970s, the number of female judges has steadily increased. Some
researchers suggest that women judges bring new perspectives to justice and may be more
sensitive to some parties in their courtrooms. One prominent researcher, Carol Gilligan
(1982), found that women “speak in a different voice”; that is, they answer moral dilemmas
by using empathy and compassion, whereas men focus on the rights of the individuals
involved. According to Gilligan's findings, women judges bring a nurturing, collaborative,
and cooperative spirit to the practice of law. Most recently, Sonia Sotomayor and Elena
Kagan were nominated and elected to the position of Associate Justice of the Supreme Court
in 2009 and 2010, respectively.
Racial Minorities as Judges
Racial minorities are still largely unrepresented in the court system, and very few hold
judicial positions. Men and women from minority populations have a unique understanding
of their communities and can therefore see biases in the law that other judges might miss.
Ideally, the American court system should represent the U.S. population, a population
composed of many racial groups. It is therefore important that people from minority
communities have a voice in creating and enforcing the law. Two African American judges
have served on the U.S. Supreme Court: Thurgood Marshall, who served from 1967 to 1991,
and Clarence Thomas, who succeeded Marshall after his retirement in 1991.
A judge is required to preside in the state of his or her birth.
True
False
Minority and female judges are more likely to gain their positions through
appointment rather than election.
True
False
1
A judge signs a warrant for the suspect’s arrest.
2
A judge rules on pretrial motions, such as the venue and evidence used for the trial.
3
A judge manages the everyday tasks of an ongoing trial.
4
An appeals judge hears the case.
Review
In the highly-publicized case against Conrad Murray, Michael Jackson’s physician,
Judge Pastor was not only involved in the criminal proceedings in the courtroom; he
was also required to sign a warrant for Conrad Murray’s arrest and set bail before the
trial was held. During the trial, Judge Pastor ruled the evidence that could and could
not be admitted into Murray’s case based on his interpretation of the law.
After any case, an appellate judge may need to listen to a case undergoing appeal. All
judges have a variety of responsibilities, both in and out of the courtroom, and come
from a variety of backgrounds. The trend toward an increasingly diverse set of judges
in the American court system seems to be a positive step in increasing fairness in the
courts to both sides of a case, as women and minorities may provide a different
perspective to identifying areas of bias within the law.
Introduction
Thomas is a young lawyer who hopes to be a judge years down the road in his career.
Thomas knows the different ways to become a judge, including appointment or
election. Depending on the type of judgeship he seeks, Thomas needs to consider the
requirements of becoming a judge, including steps he can begin doing now in his
career to prove his merit for when he becomes a judge. For Thomas, knowing all this
information about becoming a judge helps him to make smart choices early in his legal
career.
Methods of Judicial Selection
In the colonial era, judges in America were appointed by the King of England. These judges
were therefore under the king’s control. Since the inception and independence of the United
States, the selection and responsibility of judges has evolved greatly. Today there are several
different methods for selecting a judge that vary based on the type of judge being selected.
It wasn't until the twentieth century that states began to select judges based on merit rather
than appointment by higher legal authorities. During the evolution of the selection process,
many states adopted their own methods of selecting judges.
Select each item to learn more.
Type of Judge
Selection Process
Position Tenure
Federal Appellate Judge
appointed by U.S. president and subject to Senate approval
life, unless impeached or unable to perform duties
State Appellate Judge
merit system; appointed by state governor; elections
varies from 5 to 15 years, except Massachusetts (until 70 years of age) and Rhode Island
(life)
State Trial Court Judge
elections; 12 states use merit system (selection by committee)
varies from 2 to 15 years, except Massachusetts and New Hampshire (70 years of age) and
Rhode Island (life)
Federal appellate judges are selected through
the U.S. President
.
When judges are selected and appointed based on evaluation by a committee it is
done through
the Missouri or merit plan
.
State appellate judges are selected through
elections
.
Federal appellate judges are appointed for life unless impeached or unable to perform duties.
True
False
It wasn’t until the 20th century that states began to select judges based on merit
rather than through appointment by higher legal authorities.
True
False
Review
If Thomas wants to eventually become a judge, he has to begin proving his fairness
as a lawyer early in his career, before he is qualified to be considered for judicial
selection. Depending on the type of judgeship he seeks, Thomas may one day be
elected by the voters, appointed by his state’s governor, or even appointed by the
President of the United States. Becoming a judge means that Thomas will have great
impact on the judicial system; to be trusted in that position, he has to prove that he
can act as a neutral party and is an expert at interpreting the law.
Introduction
Darlene Byrne is a family court judge in Austin, Texas. She works with clients,
attorneys, and volunteers to resolve issues dealing with adoptions, custody, and
visitation. Before she was a judge, Byrne practiced as an attorney in the court system
for well over a decade. Judge Byrne’s role as a judge is very different from her previous
role as an attorney. She is now a representative of the law and needs to be a mediator
of the law to fulfill her duties as a judge. Many training opportunities are available to
new judges like Judge Byrne, and requirements for training vary from state to state.
Methods of Judicial Training
The process for training judges in the United States is far less rigorous than in other
countries, where schools offer specific judicial tracks for those interested in becoming judges.
In the United States, most judges’ courtroom experience is limited to their work as attorneys.
The position of judge, however, requires a different perspective than that of an attorney. As a
result of pressure from legal scholars and research results regarding the quality of judges,
judicial education programs have been established. Today, 30 of the 50 states require judges
to participate in some type of training.
Select each item to learn more.
National Judicial College (NJC)
The NJC was established in the early 1960s. It offers three- to five-day seminars that cover a
variety of topics. Nevada, New Hampshire, and Wyoming require new judges to attend NJC
training. Some judges attend an NJC seminar as part of their continuing education.
Administrative Office of the Courts (AOC)
The AOC is another source of judicial training for general jurisdiction court judges.
Thirteen states require AOC training.
Individual State-Sponsored Training Programs
State-sponsored programs generally provide training specific to the jurisdiction in
which the judge will serve. They cover topics such as court processes and paperwork
specific to the jurisdiction.
Federal Judicial Center
Established in 1967, the FJC is the focal point of the United States’ federal court education
and research. In addition to providing orientation and training to federal judges, the center
conducts studies on the federal court system and makes recommendations about court
operations.
The Challenges Judges Face
Aristotle, a Greek philosopher and scientist once said, “the law is reason, free from passion.”
This is not to say that judges cannot be passionate about their work. What Aristotle meant
was that law, or the practice of law, is free from individual biases and objections. Judges
must subtract themselves as participants of law and transform themselves into mediators or
counselors of law.
As these individuals are charged with the act of making decisions that have dire impacts on
others, judges are expected to function with a high standard of integrity and to make
decisions that reflect discretion and ethics; few regulations control judges. Most judges
demonstrate a strong ethical connection to their responsibilities. Learn about some of the
challenges judges face.
Select each item to learn more.
Public Outrage
Judges sometimes face discontent and anger from the public when they make unpopular
rulings. Recently, public outcry arose over the outcomes of the Casey Anthony trial, the Jerry
Sandusky trial, and the most recent Supreme Court decision regarding the Patient Protection
and Affordable Care Act (March 23, 2010; upheld June 28, 2012).
Remaining Fair and Unbiased
The practice of law requires those who make decisions in the legal system to remain fair and
unbiased. The ethics of judicial conduct require that judges apply the law in an unbiased and
fair manner, which may obligate a judge to set aside his or her personal opinions and beliefs.
If a judge cannot remain dispassionate because of personal involvement or beliefs, the judge
is expected to disclose the conflict and remove himself or herself from the case. Judges are
also expected to avoid activities that could make them seem biased. For example, a judge’s
membership in an activist group could raise questions about his or her impartiality on issues
related to the group’s cause.
Pressure for Interviews
Judges are prohibited from participating in interviews and otherwise commenting on current
cases. Commenting on a case can give the appearance that the judge is biased. In addition, the
judge must keep details of the case confidential, even from friends and family members.
Remaining Neutral: Ex Parte Communications
Ex parte communications are communications with individuals outside the
courtroom. Judges typically refrain from discussing cases and avoid contact with individuals
who may try to influence their opinion.
Participating in a media interview while a case is being tried is considered bias behavior for a
judge.
True
False
The process for training judges is more rigorous in the United States than it is in
other countries.
True
False
What are some of the challenges judges face?
One of the biggest challenges a judge faces is remaining fair and unbiased in his or her
decisions. Public outrage may occur if people feel that the judge did not give a fair
ruling. As a result, the judge’s contact with those outside the courtroom must support
the goal of remaining fair and unbiased.
Review
Judge Byrne must operate with a high standard of integrity and also remain fair and
unbiased, even in cases where the charges seem especially heinous. Judge Byrne’s
perspective toward a case must be different from the one she possessed as an
attorney because the neutral position of a judge is of critical importance in the court
system.
For all new and current judges, many training opportunities are available, and training
requirements vary by state. For Judge Byrne, Texas judges are required to attend one
judicial education program each year or complete judicial education, depending on the
type of judge they are. This ongoing training can help judges maintain neutrality and
fairness in the courtroom.
Summary
If you look at a courtroom trial as the equivalent of a sporting match, the prosecution
and defense represent the two opposing teams and the judge is the referee. No matter
how terrible the crime, a judge must maintain order in the courtroom and be careful
not to show bias toward one side or the other.
To become a judge, a person must demonstrate merit before being appointed or
elected to judgeship. A judge is responsible for upholding fairness and integrity in the
courtroom and when interpreting the law. Judgeship often requires further training
beyond a person’s legal experiences as an attorney to help the judge maintain fairness
in the courtroom.
MODULE 6
Overview
You have probably seen this scene many times before in your favorite TV crime show:
During her closing argument, the defense attorney turns to the jury and appeals to
their emotions. She speaks passionately about her client and asks the jury to relate
to her client’s decision-making process and how they would have behaved in a similar
situation. She also asks the jury to examine the evidence in a way that favors her
client.
However, the defense attorney isn’t the only person who will appeal to the jury to
sway the decision in that side’s favor; the prosecution will also try to convince the
members of the jury to see the evidence in light of their side. The members of the
jury do not necessarily have any legal training; they represent the citizens and
“ordinary” people in a democracy who must remain impartial in a trial to help render
a fair verdict based on the facts of the case. Regardless of the case, juries always
have a difficult decision to make. The people in the criminal courts system need to
work together to facilitate an experience for the jury that allows them to weigh the
facts of a case clearly from all sides.
In addition to the jury, the defense, the prosecution, and the judge, other members
of the courtroom play a role in a criminal trial. Knowing who these other parties are
and the purpose they serve in the courtroom will help you understand some of the
nuances of a criminal court case.
Introduction
Faith just received a juror summons in the mail. She has never served jury duty before
and is unsure of what to expect. She worries that she will not be able to keep up with
all the legal jargon the attorneys use if she is selected to serve on a case.
The members of the jury are ordinary citizens in the community, selected and
approved by both the prosecution and defense on a case. Although jury members are
not expected to have the same knowledge and legal expertise as the courtroom
attorneys or the judge, they are expected to base their decisions on the facts of the
case and on the law.
Functions of the Jury
Participating on a jury is a fundamental element of democracy and an obligation of the
citizens living in a democracy. Early juries in America were selected from the citizenry to
balance government control in the court system. This concept still exists today: a suspect is
entitled to a trial by a jury of peers. A jury comprised of ordinary citizens reflects the
“conscience of the community.” Let's learn more about jury duty and jury charge:
Select each item to learn more.
Jury Duty
In the United States, jurors are selected through a compulsory act known as jury duty.
Citizens must participate in jury duty if they are called to do so. Anyone who does not attend
the call to jury duty faces strict penalties, including possible jail time.
Jury Charge
When an individual is chosen to serve on a jury, he or she is given a document known as
a jury charge. This document outlines instructions for the jurors on the law and how the law
applies to the case which they are trying. The jury charge also provides definitions of the
legal concepts involved in the case. Law is often a complex practice and can confuse the
average citizens on a jury. By clarifying complex issues, the jury charge assists the jurors in
their decisions.
Jurors’ Role
Jurors always have been triers of fact. In the past, jurors were responsible for deciding
both the facts of a case and the related law. Today, jurors decide only the facts and the judge
decides the applicable law. Jurors listen to testimonies and evidence and, based on these
facts, decide whether the defendant is guilty. The role of the juror is often criticized in the
media. Jurors can face public criticism, especially for cases that are highly publicized or
controversial.
For example, the Casey Anthony jurors faced widespread criticism after their “not guilty”
verdict. In fact, a restaurant in Clearwater, Florida, banned the jurors. The restaurant owner
placed a handwritten sign on the door of the restaurant claiming, “Pinellas County
Jurors Not Welcome!!!” Many of the jurors claimed that after the case they suffered from
stress and fear.
Early juries in America were selected from the citizenry to balance government
control in the court system.
True
False
Juries were formed as, and continue to be, a protection against government control
and a reflection of the principles of the community.
True
False
Jurors today decide on both the facts of the case and the applicable law.
True
False
An individual selected for jury duty can decline the call without penalty.
True
False
Jury duty
is when an individual is selected to be in the jury of a court case under a
compulsory act.
Jury charge
is when an individual who chooses to serve on a jury is given a document outlining
instructions.
Jury of one’s peers
refers to members in the defendant’s community.
Review
During her experience serving jury duty, Faith’s fears about not understanding all the
legal terminology were put to ease. When selected to serve on a case where the
defendant was charged with armed robbery, the courtroom attorneys provided her
with a jury charge to help explain some of the terms they were going to use during
the courtroom proceedings. Faith was able to listen to the evidence presented by both
the prosecution and defense and make her decision about the guilt of the defendant—
along with the other jurors—based on the facts of the case.
The next time you receive a slip in the mail calling you to fulfill your civic duty as a
member of a jury, remember that you are participating in a very important part of the
United States democratic process, enabling a defendant to maintain the right to a fair
trial judged by a jury of peers.
Introduction
In 1973, Laura was a victim of assault in her small Florida town. Neighbors and
members of the community who were aware of this crime blamed Laura: she went to
a party, wore a provocative dress, and became intoxicated. Her alleged attacker,
Frank, was also attending the party, took Laura into another room, and took
advantage of her.
Public perception and legislation regarding rape or assault victims has changed
significantly over the years; today, a victim like Laura is likely to receive more support
and resources from her community and the government. When a case like this is
brought to trial, the testimony of the defendant, the victim, and other witnesses will
likely weigh heavily in the outcome of the case.
The Defendant
The defendant is the individual accused of committing a crime. Learn more about defendants.
Select each item to learn more.
Typical Defendant Profile
Defendant profiles vary depending on the type of crime committed. According to statistical
profiles, white-collar crimes are usually committed by white, middle-aged, middle-class
males while street crimes are usually committed by young males, often from a minority
group. Remember that these profiles are not the rule; women and men of all classes, races,
and ethnicities also commit crimes. And, as we shall explore shortly, the statistical profiles
raise many questions.
Corporate “White Collar” Defendants
A corporation can be charged with a crime. In such a case, the corporation is the
defendant. Because it is often difficult to determine which individual is responsible
for corporate crimes, sanctions against corporations are typically fines. The Enron
Scandal has increased public awareness of corporate fraud. In 2001, it was revealed
that Enron practiced deceptive accounting when reporting its financial situation. To
settle the case, the directors of Enron personally paid large fines. Although
corporations are often fined, directors of corporations are increasingly being held
personally responsible.
The Sarbanes-Oxley Act of 2002 (Publication Number 107-204, 116 Stat. 745) is
also called the Public Company Accounting Reform and Investor Protection Act of
2002 (or the SOX or Sarbox Act, for short). Just as its name implies, the law was
enacted to protect investors and the public from corporations that use fraudulent
accounting practices to increase their profits or make their companies look better to
investors. It came about as a reaction to several public scandals over the accounting
practices of major U.S. companies, including Enron, WorldCom, Tyco International,
and Peregrine Systems. This act establishes numerous requirements for corporations
and corporate directors.
Questions to Consider About Defendant Profiles
The fact that, statistically, minority males commit the greatest number of street crimes raises
several questions.
When a group is represented disproportionately, factors such as discrimination by criminal
justice system workers, bail policies and practices, and other factors contributing to disparate
treatment must be considered in order to ensure that justice is, in fact, being upheld. The
following are questions raised about defendant profiles:
Select each item to learn more.
Why are defendants much more likely to be male than female?
Are females treated differently from males in the justice system?
Do minorities commit more crimes than whites, or do other factors contribute to this statistic?
Are there differences in rates of arrest, prosecution, and conviction for minorities than for whites?
The Victim
No one plans to be a victim, and although the victim of a crime has no formal role in the legal
process, he or she has a central part in court proceedings. Consider the following statements
regarding victims and how each affects a victim’s role.
Select each item to learn more.
Statement 1
The victim makes the crime "real".
Concepts such as justice and harm to the public are abstract ideas. The victim brings these
concepts to life. The effects of crime on an individual reveal the true consequences of crime.
Statement 2
The long-term effects of crime on a victim are difficult to calculate.
Crime can impact victims physically, psychologically, and financially, and has longterm effects on the victim’s quality of life. While the immediate and visible effects of
crime can be observed, other possible effects are difficult to assess. It is estimated
that victimization by crime annually costs an estimated $450 billion, but the longterm costs associated with these additional factors make this estimation difficult.
You might have heard the term victimless crime. This term refers to cases in which a
person might have committed an illegal action, but the action, although illegal, did
not directly violate the rights of others. Although an individual victim may not have
been harmed during a victimless crime, there may be other damages or effects that
result from the illegal action.
Statement 3
Society has mixed reactions to victims.
When an individual is labeled a victim, others may respond to the individual in
stereotypical ways. People may avoid victims or blame them for their circumstances.
Recently, society has begun to portray victims as survivors, opening the door to
expanded victims’ rights and advocacy.
An example of the portrayal of victims as survivors is reflected in the victim
advocates organization Rape Victim Advocates, which provides both emotional and
legal counseling to victims.
Victims’ Rights
Victims’ rights have received increased attention in recent years. Increased public
awareness of crimes and victimization has resulted in legislation that protects victims
and in programs that support them. Let’s look at laws that protect victims’ rights,
programs offering victim support, and some of the questions that these programs
have raised.
Victims’ Rights: Legislation
In recent years, legislation at both state and federal levels has been passed to address the issue
of victims’ rights and to give victims a greater say in the legal process. The substantial
amount of recent federal and state legislation related to victims' rights reflects the growing
importance of this issue. To understand the laws enacted by individual states during the last
few years, visit and explore the activity in this area on the National Conference of State
Legislatures website. States vary in the rights of crime victims, but there are many specific
examples of legislation aimed at acknowledging the victim’s rights and role in the legal
process. Some examples include the following:
Select each item to learn more.
Victim assistance funds to help victims deal with the aftermath of crime (for example, funds for counse
medical assistance or to replace damaged property).
Victim notification provisions, whereby victims can receive notification when the person convicted of
them is released from incarceration. Victims can then lobby parole boards to attempt to keep convicted
criminals incarcerated.
Legal rulings allowing victims and their advocates to make victim impact statements at sentencing hear
and parole board hearings.
Court-ordered restitution by offenders to victims.
The opportunity to participate voluntarily in victim-offender mediation programs.
Victims’ Rights: Resources
Resources for victims are available at the national, state, and local levels.
Select each item to learn more.
Level
Resource
National
The for Victims of Crime (NCVC) provides information and publications on victims’ rights
and issues. The NCVC has a toll-free number: 1-800-FYI-CALL.
State
State-specific information on legislation, policies, and resources can typically be found
through the state attorney general’s office.
Local (City and Country)
Information, services, and resources specific to a particular jurisdiction are available locally
through the police and district prosecutor’s office.
Colleges and Universities
Colleges and universities frequently provide victim support services. The campus police
department, health center, and student services or student center can frequently provide
information or referrals for services.
Victims’ Rights and Due Process
Some have argued that legislation that protects victims’ rights could impede due process. The
following table provides two examples of controversial legislation.
Select each item to learn more.
Legal Process
Controversy
Victim Impact Statements
Such statements, given at the accused’s sentencing hearing, may influence plea bargaining
and sentencing. Critics question how much victims’ statements should contribute to legal
decisions.
Statute of Limitations
The statute of limitations limits the amount of time that can elapse between the time a crime
is committed and the time the victim presses charges. Recent changes in the statute of
limitations have allowed cases (primarily sexual molestation cases) to be prosecuted years
after the crime was committed. Critics say that removing the statute of limitations
compromises offenders’ rights to due process.
Witnesses
There are several types of witnesses, defined by the type of testimony each provides during a
trial. Some witnesses volunteer to testify, while others receive a subpoena, which is a
legal document that commands a person to appear in court as a witness. When subpoenaed, a
witness is required to appear as directed or face legal penalties. Let’s discuss the following
witness types to learn more about the testimony each provides.
Select each item to learn more.
Eyewitnesses
Eyewitnesses saw the events of the crime. Although research shows that juries tend to place
significant weight on the testimony of eyewitnesses, individual perceptions of the events can
be inaccurate or biased.
v Expert Witnesses
Expert witnesses possess specific knowledge that can provide significant information
regarding the case. They are typically called to help the jurors understand more
about an aspect of the case. For example, a psychologist might be called to the
stand to explain a defendant’s behavior at the time of the crime.
Character Witnesses
v
Character witnesses attest to an individual’s character by describing the positive
aspects of that person or testifying to his or her good reputation in the community.
Testimony from character witnesses is typically admissible only to demonstrate good
character, although questioning during cross-examination may be used to reveal
unknown elements of a defendant’s character.
Defendant Witnesses
Defendants can serve as witnesses on their own behalf under certain circumstances.
Doing so carries risks; for example, the defendant’s character could be called into
question. Conversely, refusal to testify on his or her own behalf can make a
defendant appear guilty, although it is illegal for prosecutors to encourage jurors to
consider refusal to testify when determining the verdict. A defendant and his or her
attorney decide whether it is appropriate for the defendant to testify, depending on
the case.
For each item, select the best answer.
One example of victims’ rights legislation is court-ordered restitution to the victim.
True
False
The victim can make a victim impact statement during a trial.
True
False
Someone who saw the crime take place is an expert witness.
True
False
The statute of limitations allows an unlimited amount of time between the
commission of a crime and the trial for that crime.
True
False
Eyewitness
A person who claims to have seen the crime in question take place
Expert Witness
An individual who provides specialized knowledge about a subject relevant to the
case
Character Witness
A person who can attest to the defendant’s positive personal traits
Defendant Witness
An individual who serves as a witness on his or her own behalf
Eyewitness
A person who claims to have seen the crime in question take place
Expert Witness
An individual who provides specialized knowledge about a subject relevant to the
case
Character Witness
A person who can attest to the defendant’s positive personal traits
Defendant Witness
An individual who serves as a witness on his or her own behalf
Review
In an assault case like Laura’s, the victim isn’t the only one affected by the crime
committed. Along with Frank, the defendant, witnesses who watched Laura and Frank
interact at the party will likely be called upon by both the prosecution and defense to
testify in court. Depending on their relationship with either Laura or Frank, different
witnesses will play a role in this case. The defense will likely call witnesses who may
attest to positive attributes of Frank’s character; the prosecution might call
eyewitnesses to the stand who can describe events leading up to the alleged assault.
These individuals will provide valuable information to the case, which helps the jury
make a more informed verdict based on the evidence and the factual testimony of the
witnesses.
Introduction
In theatre, many people help make the show a success. Everyone is most familiar with
the actors, who are visible to the public, but other people build sets, illuminate the
stage, manage the stage, and direct the show.
In the same way, many members of the court system contribute to a case. The
defendants, victims, and witnesses are just a few of the people who interact with one
another from the start of court proceedings to the finish. Other participants fulfill
smaller but equally important roles, including the bailiff, clerks, reporters, and court
commissioners.
Introduction
In theatre, many people help make the show a success. Everyone is most familiar with
the actors, who are visible to the public, but other people build sets, illuminate the
stage, manage the stage, and direct the show.
In the same way, many members of the court system contribute to a case. The
defendants, victims, and witnesses are just a few of the people who interact with one
another from the start of court proceedings to the finish. Other participants fulfill
smaller but equally important roles, including the bailiff, clerks, reporters, and court
commissioners.
Courtroom Participants
Courtroom participants can include victim-witness assistants, jury commissioners, and court
administrators.
Select each item to learn more.
Victim-Witness Assistants
Victim-witness assistants are individuals who serve as official witnesses solely for
the purpose of assisting victims. Victim-witness assistants may be staff members of an
organization specifically designated to assist victims or may be volunteers from community
organizations. Their responsibility is helping victims use the legal system effectively; for
example, helping a victim obtain a restraining order.
Jury Commissioners
Jury commissioners are responsible for ensuring that jury selection is carried out
fairly and in accordance with the law, and that it addresses any challenges to the jury
selection process. Jury commissioners are also the public relations representatives of the
courtroom and work directly with the citizens called to jury duty. Commissioners help jurors
deal with last-minute changes in the trial process and calm jurors who are angry about the
amount of time spent on the jury selection process.
Court Administrators
Court administrators and court staff are not as visible as other courtroom
participants. However, courtroom staff perform tasks that keep the court
proceedings running smoothly and in an organized fashion.
Bailiffs
The bailiff can be a member of the court staff, a sheriff's deputy, or a police officer. The
bailiff is responsible for the following tasks:
Select each item to learn more.
Provides security and maintains order in the courtroom, including physically restraining any individual
becomes threatening or disruptive.
Escorts the defendant to and from the courtroom.
Swears in witnesses.
Escorts jurors to and from the courtroom. May also escort the judge to the parking lot and other areas o
courthouse to discourage interruption from outsiders.
Takes the official verdict form from the jurors to the judge. Also relays any questions that arise during
deliberation from the jurors to the judge.
Clerks, Reporters, and Interpreters
Let's learn about the roles of clerks, reporters, and interpreters:
Select each item to learn more.
Clerks
Court clerks perform the daily clerical tasks that keep the courtroom on schedule and
functioning efficiently. They are responsible for scheduling the court calendar, entering
evidence into the trial record, and maintaining communication with other members of the
courthouse. Court clerks complete necessary paperwork and filing, and ensure that required
forms and materials are included in case files.
Reporters
Court reporters document what happens during court proceedings. The record of
what transpired in the courtroom becomes the foundation of the appeals process, so
court reporters must accurately record precise details of the proceedings. They type
in shorthand using a machine called a stenotype, which is a typewriter with only 22
keys. Today, stenotypes can translate the shorthand to standard English and provide
closed-captioning to meet the needs of the hearing impaired. Court reporters may
use video or audio recording devices, but these must be transcribed if a written
report is required.
Interpreters
Court interpreters translate the court proceedings into another language for
courtroom participants who do not speak English. For example, a court interpreter
could use American Sign Language to communicate the court proceedings to
individuals with hearing impairments. Court interpreters play a vital role in due
process; in addition to understanding the nuances and meanings of two languages,
they also understand the translations and meanings of legal terms and use them
accurately in both languages.
Court clerk
Schedules the court calendar and organizes evidence
Court reporter
Documents what happens during proceedings
Court interpreter
Provides translations for courtroom participants who do not speak English
The
bailiff
provides security and maintains order within the courtroom.
The
jury commissioner
ensures that jury selection is fair and in accordance with the law
Review
Victim-witness assistants, jury commissioners, and court commissioners play vital
behind-the-scenes roles in a court case. Although they are not the most visible
individuals in a case, these people are part of the courtroom “play” and are vital to
ensuring the goal that proceedings run smoothly. These individuals also help to ensure
that all parties involved are fully aware of their roles. A victim-witness
assistant ensures that victims are aware of their legal rights, while a bailiff institutes
order in the courtroom. If these members of staff perform their support roles correctly,
they aid in the justice of the court proceedings and help the criminal courts system
function efficiently.
Introduction
For a theatre production to be successful, many players must come together to put
on the show. Even if the crew creates beautiful, life-like sets, the playwright pens
clever dialogue, and the actors all memorize their lines perfectly, the production still
isn’t complete without an audience.
Likewise, in a courtroom when the defense and prosecution are able to present their
evidence clearly, the witnesses are able to testify without perjury, the courtroom staff
are able to make the court proceedings run efficiently, and the jurors are able to
render a verdict based on the facts of the case, then the fairness of the court
proceedings is further verified by spectators. Many court proceedings are open to the
public. Just like a theatre production, a number of spectators will be invested
personally in the proceedings and the people involved.
The Public
Court proceedings are open to the public, which helps maintain accountability in the
justice system. Spectators can include family members, interested individuals, the
media, and people and organizations with an investment in the outcome of a case.
For example, organizations such as the American Civil Liberties Union (ACLU) may
observe a trial for political and lobbying interests. The organizations may advocate on
the behalf of either the prosecution or the defense. In addition, groups of law students
may also observe trials to become familiar with courtroom procedure.
Courtroom proceedings are not open to the general public.
True
False
Members of the media may not observe courtroom proceedings.
True
Law students
may observe trials to become familiar with courtroom procedures.
Spectators
help maintain accountability in the justice system.
Review
Although spectators and the media do not have an official role in the proceedings,
these people may represent advocacy groups or members of the family of those
involved in the proceedings. They also provide validation of the fairness of
proceedings. If there were no audience for a theatre production, actors, directors, and
stage managers would not have to be accountable for their roles. Spectators in a
theatre production help actors sense the importance of maintaining accuracy; in a
criminal proceeding, spectators help maintain the sense of accountability.
False
Organizations are allowed to observe a trial for political and lobbying purposes.
True
False
Summary
When watching court proceedings on your favorite fictional crime TV show, you likely
have seen the prosecuting and defense attorneys pleading with the jury to see their
side of the case. The next time you tune in to your favorite crime drama though,
observe the other support characters—the witnesses, the court reporter, the bailiff—
who also play a role in helping to maintain fairness during the trial. The jury,
comprised of people from the general public, must listen to the facts of the case before
rendering a verdict. The defendant, the victim, and other witnesses may be called to
the stand to testify on behalf of either the defense or prosecution. The courtroom staff
members, such as the jury commissioner, the clerk, and interpreters, help ensure
court proceedings run smoothly. Last, the public also plays a role in courtroom
proceedings, as spectators can advocate on behalf of the rights of those involved in
the case.
One who makes a statement or declaration is called the
Declarant
The act of representing one's self at a trial is called
Pro se defense
Module 04: Quiz

Due No due date

Points 15

Questions 15

Time Limit 30 Minutes
Instructions
Quiz
This quiz relates to the following
module objectives:












Define terms related to prosecutors
Describe the role of a prosecutor
Describe prosecutorial discretion
Explain how prosecutors decide to file charges
Explain the relationship between a prosecutor and other courtroom participants
Summarize challenges for prosecutors
Describe the responsibilities of the prosecutor after a trial concludes
Define terms related to defense attorneys
Describe the role of the defense attorney
Explain the relationship between a defense attorney and the other courtroom participants
Differentiate between private and public defense attorneys
Summarize challenges for defense attorneys
Read the following before entering your
Quiz:





You will be able to enter this quiz one time.
You will have 30 minutes to complete the quiz.
If you lose your Internet connection during your assessment, log on again and re-enter.
To pass this course, you must earn at least 70% of the total possible points for the course. If you
are concerned about your knowledge of the information covered by Module 4, please go back
and review the material prior to entering Quiz 4.
This is an open book assessment. In the context of this assessment, that means you may only
use the eText, Module Presentations and personal paper notes based on these. Searching the
internet for answers, accessing previous assessments, or using additional resources of any
kind is not permitted. Please see the Academic Code of Conduct for more information.
Course Resources
Module 4: Reading
(pp. 200–231)(pp. 232–
257)
Module 4: Presentation
Submitting Your Quiz:

When you are finished with this quiz, click the Submit for Grading button.
Attempt History
LATEST
Attempt
Time
Score
Attempt 1
27 minutes
13 out of 15
Score for this quiz: 13 out of 15
Submitted May 2 at 9:39am
This attempt took 27 minutes.
Question 1
1 / 1 pts
An informal or programmatic method of steering an offender out of the criminal justice system is
called ________.
discretion
deferral
Correct!
diversion
immunity
Question 2
1 / 1 pts
What is prosecutorial discretion?
the ability of the people to elect a prosecutor
the decision to promote a prosecutor to a judge
Correct!
the decision regarding what to do in a particular case
the court's ability to remove an unethical prosecutor
Question 3
1 / 1 pts
Which term describes a defense attorney who works for the state?
Correct!
public defender
inside counsel
outside counsel
assigned counsel
Question 4
1 / 1 pts
How are prosecutors put into office?
by lottery
by public election
Correct!
by election or appointment
by judicial appointment
Question 5
1 / 1 pts
What should a prosecutor do in a case with weak evidence?
Correct!
ask the judge to dismiss
tell the defense attorney about it
tell the witnesses not to show up
ask the jury to acquit
Question 6
1 / 1 pts
What is prosecutorial discretion?
the ability to override a judge's decision if required
Correct!
the flexibility to choose among different courses of action in cases
the ability of the prosecutor to end his term early by resigning
the ability to hire the person whom the prosecutor chooses
Question 7
0 / 1 pts
How do mandatory sentences influence prosecutorial discretion?
You Answered
The judge is not influenced in any way.
Correct Answer
The judge may charge the defendant with a lesser offense.
The prosecutor may argue for a stronger sentence.
The judges' discretion is sharply increased.
Question 8
1 / 1 pts
Which is an example of how the police and prosecutor's office should work together?
Correct!
The prosecutor should help ensure that evidence is collected legally.
A prosecutor should attend every search warrant execution.
A prosecutor should be present at all police interrogations.
They should conduct all investigations jointly.
Question 9
1 / 1 pts
In which types of cases do victims often drop charges?
breaking and entering
Correct!
domestic violence
juvenile cases
drug cases
Question 10
1 / 1 pts
When a criminal case is appealed, it is the prosecutor's responsibility to defend the state's case in
the ________ courts.
acquittal
Correct!
appellate
mistrial
posttrial
Question 11
1 / 1 pts
Although professional demands call for continued appeals, if a defense attorney were to support the
wishes of a convicted client who wants who to death row-volunteer, how would they do so?
By telling the story to the media.
By assisting with appellate fees.
Correct!
By providing psychological and social support
By helping write a book about the case.
Question 12
0 / 1 pts
Are defense attorneys required to present a defense?
Not under any circumstances
Yes, but not to the level of the state
Correct Answer
No, but they typically do so
You Answered
Yes, in every instance
Question 13
1 / 1 pts
How might the role of defense attorneys as zealous advocates clash with their role as officers of the
court when clients decide to lie on the stand?
The defense attorneys are not appointed to represent the client on the new perjury charge.
The defense attorneys would have to admit that they knew their clients would lie.
Correct!
The defense attorneys have to guard their client's best interest but cannot assist in a fraud on the
court.
The defense attorneys may not wish to disclose that they have no experience with perjury charges.
Question 14
1 / 1 pts
Why do private attorneys often have more time to devote to clients?
Correct!
They have a manageable number of clients.
They are not married.
They spend longer hours on the job.
They work harder and get the job done faster.
Question 15
1 / 1 pts
What must defense attorneys do if the clients confess to committing a murder that they have not
yet been charged with?
tell the judge
tell the police
Correct!
tell no one
tell the prosecutor
Quiz Score: 13 out of 15
PreviousNext
Module 05: Quiz

Due No due date

Points 15

Questions 15

Time Limit 30 Minutes
Instructions
Quiz
This quiz relates to the following
module objectives:






Define terms related to judges
Describe a judge's responsibilities
Describe the educational and experiential requirements for becoming a judge
Outline methods of judicial selection
Outline methods of judicial training
Examine the challenges of being a judge
Read the following before entering your
Quiz:





You will be able to enter this quiz one time.
You will have 30 minutes to complete the quiz.
If you lose your Internet connection during your assessment, log on again and re-enter.
To pass this course, you must earn at least 70% of the total possible points for the course. If you
are concerned about your knowledge of the information covered by Module 5, please go back
and review the material prior to entering Quiz 5.
This is an open book assessment. In the context of this assessment, that means you may only
use the eText, Module Presentations and personal paper notes based on these. Searching the
internet for answers, accessing previous assessments, or using additional resources of any
kind is not permitted. Please see the Academic Code of Conduct for more information.
Course Resources
Module 5: Reading
(pp. 167–199)
Module 5: Presentation
Submitting Your Quiz:

When you are finished with this quiz, click the Submit for Grading button.
Attempt History
LATEST
Attempt
Time
Score
Attempt 1
22 minutes
11 out of 15
Score for this quiz: 11 out of 15
Submitted May 2 at 10:04am
This attempt took 22 minutes.
Question 1
1 / 1 pts
A short meeting held at the judge's bench between the judge and the attorneys during the trial is
called a(n) ________.
appeal
Correct!
sidebar conference
bench meeting
pre-trial motion
Question 2
1 / 1 pts
Which of the following terms mean "moving a trial to a location different from where the crime
occurred"?
Correct!
change of venue
change of location
change of place
change of trial
Question 3
1 / 1 pts
The document bearing the judge's signature that grants permission for a search is called ________.
order
information
decision
Correct!
warrant
Question 4
1 / 1 pts
When does the judge make findings of guilt or innocence?
Correct!
at a bench trial
on appeal
when the jury is deadlocked
when the jury is sequestered
Question 5
1 / 1 pts
What is the judge's responsibility prior to the arrest of a defendant?
to appoint a prosecutor
Correct!
to sign an arrest or search warrant
to appoint an attorney
to tell the defendant the charges
Question 6
0 / 1 pts
Which kind of judge does NOT have much legal experience?
a circuit court judge
Correct Answer
a justice of the peace
You Answered
a district court judge
an appellate court judge
Question 7
1 / 1 pts
Which kind of geographical area do MOST judges serve?
where the Governor appointed them
Correct!
where they were born and educated
where they got their first judicial appointment
where they got their first legal job
Question 8
1 / 1 pts
A judge with no law degree is called a ________.
Correct!
lay judge
justice
public officer
magistrate judge
Question 9
1 / 1 pts
A tendency among U.S. presidents to defer to the judgment of senators and local party leaders
regarding the qualifications of individuals for appointment to the lower courts is called senatorial
________.
Correct!
courtesy
civility
etiquette
protocol
Question 10
0 / 1 pts
Which is the usual method of selecting the state court judges?
You Answered
They are selected by the committee on merit.
They are appointed by Governor.
Correct Answer
They are elected by the people.
They are appointed by the legislature.
Question 11
0 / 1 pts
Aside from the president and the Senate, all of the following EXCEPT ________ are involved in
federal judicial selection.
Justice Department
You Answered
interest groups
Correct Answer
Congress
American Bar Association
Question 12
1 / 1 pts
Why can't courtroom attorneys take a judicial role?
Correct!
The roles of an advocate and a neutral arbiter are significantly different.
The attorneys have little experience in criminal law.
Judges typically share little with others about their experience on the bench.
The attorneys have not seen many judges in practice.
Question 13
0 / 1 pts
Until the 1960s, how much judicial training was required before taking the bench?
a trial period on the bench
You Answered
a five-day training session
Correct Answer
virtually none at all
a six-month course
Question 14
1 / 1 pts
Which day-to-day matter presents a challenge to judges in modern courtrooms?
being paid a substandard wage
combating boredom from lack of work
Correct!
understanding how to apply the law
having inadequate resources for research
Question 15
1 / 1 pts
Judges should refrain from interviews about current cases because ________.
media outlets will spin the interview to suit their own purposes
they don't understand the law
they are bad at television interviews
Correct!
they might come across as bias
Quiz Score: 11 out of 15
PreviousNext





Home
Syllabus
Modules
Grades
Secure Exam Proctor (Proctorio)
Module 06: Quiz

Due No due date

Points 15

Questions 15

Time Limit 30 Minutes
Instructions
Quiz
This quiz relates to the following
module objectives:



Define terms related to courtroom work groups
Describe the role of various courtroom participants
Explain the relationships among courtroom participants
Read the following before entering your
Quiz:





You will be able to enter this quiz one time.
You will have 30 minutes to complete the quiz.
If you lose your Internet connection during your assessment, log on again and re-enter.
To pass this course, you must earn at least 70% of the total possible points for the course. If you
are concerned about your knowledge of the information covered by Module 6, please go back
and review the material prior to entering Quiz 6.
This is an open book assessment. In the context of this assessment, that means you may only
use the eText, Module Presentations and personal paper notes based on these. Searching the
internet for answers, accessing previous assessments, or using additional resources of any
kind is not permitted. Please see the Academic Code of Conduct for more information.
Course Resources
Module 6: Reading
(pp. 258–289) (pp. 352–385)
Module 6: Presentation
Submitting Your Quiz:

When you are finished with this quiz, click the Submit for Grading button.
Attempt History
LATEST
Attempt
Time
Score
Attempt 1
26 minutes
10 out of 15
Score for this quiz: 10 out of 15
Submitted May 2 at 10:34am
This attempt took 26 minutes.
Question 1
1 / 1 pts
A(n) _______ outlines instructions for jurors.
Correct!
jury charge
interview with the bailiff
lecture from the prosecution
handbook sent to all registered voters
Question 2
1 / 1 pts
A jury that is so irreconcilably divided in opinion after long deliberation that it is unable to reach any
verdict is called a(n) ________.
invalid trial
Correct!
hung jury
mistrial
travesty
Question 3
1 / 1 pts
Any tangible item that can be perceived with the five senses is called ________ evidence.
Correct!
real
circumstantial
testimonial
direct
Question 4
0 / 1 pts
The ________ process is a defendant's constitutional entitlement to use subpoenas to obtain
witnesses, documents, and other objects that are helpful to his or her defense.
elective
You Answered
discretionary
Correct Answer
compulsory
obligatory
Question 5
0 / 1 pts
Anything that is not based on the personal knowledge of a witness is known as ________.
datum
Correct Answer
hearsay
happenstance
You Answered
circumstance
Question 6
0 / 1 pts
What is the victim's main role at a trial?
to provide direction to the prosecution
to get the defendant convicted
You Answered
to avoid an emotional outburst
Correct Answer
to personalize a bureaucratic process
Question 7
1 / 1 pts
Who is an expert witness?
someone who files lots of lawsuits
Correct!
someone with a special knowledge of the subject
a chronic victim
someone who actually saw what happened
Question 8
1 / 1 pts
Which court actor might be a volunteer instead of a paid participant in the court proceedings?
the court reporter
the judge
Correct!
the victim-witness assistant
the prosecutor
Question 9
0 / 1 pts
Who makes the record of the trial?
the judge
Correct Answer
court reporters
the attorneys
You Answered
court clerks
Question 10
1 / 1 pts
Who is the conduit between the judge and jury during the deliberations?
prosecutors
police
defense attorneys
Correct!
bailiffs
Question 11
1 / 1 pts
How were child molestation laws altered in response to the victims' rights concerns?
Molestation laws were repealed and replaced with new laws.
Molestation laws were enforced more often.
Correct!
The statutes of limitations were effectively extended.
The laws were publicized in the media.
Question 12
1 / 1 pts
________ are considered the public relations representatives of the courtroom.
Bailiffs
Victim-Witness Assistants
Court Administrators
Correct!
Jury Commissioners
Question 13
0 / 1 pts
How can a jury "speak out" against an unpopular law?
by convicting an innocent defendant
by drafting a new legislation
You Answered
by writing congress
Correct Answer
by acquitting a guilty defendant
Question 14
1 / 1 pts
Who ensures order in the courtroom?
Correct!
the bailiff
the prosecutor
the jury commissioner
the defense attorney
Question 15
1 / 1 pts
How is the treatment of "white-collar" defendants different from that of street crime defendants?
They have a better chance on appeal.
They are treated worse in prison.
They get more expensive attorneys.
Correct!
Their offenses are usually classified as civil.
Quiz Score: 10 out of 15
PreviousNext
MODULE 7
Overview
Arrests that end in conviction are the most publicized resolution of criminal cases. If
you turn on the TV and watch the news, you are likely to hear updates on the cases
of celebrities and their trials. You may remember when Winona Ryder was arrested in
December of 2001 and convicted of grand theft after stealing $5,500 worth of fashion
merchandise at a retail store in California. Winona Ryder was charged with four felony
charges and given three years’ probation. Or perhaps you might remember a more
recent criminal case, such as Paris Hilton’s DUI arrest in September of 2006 and the
subsequent criminal trouble that she entered into. This case generated a great deal
of media attention, and Paris Hilton’s various convictions and arrests were judged as
both deferential treatment and unnecessarily severe. Criminal justice professionals,
the media, and the general public were fascinated by Hilton’s arrest and the debates
that it generated.
Not all cases in the criminal justice system end in conviction. In 2002, the rap star
and record producer R. Kelly was indicted on criminal charges based on a tape showing
him engaging in sex with a 14-year-old girl. However, the case did not end in
conviction, and in March 2004, the charges against R. Kelly were dropped due to lack
of probable cause for the search warrants officers obtained for R. Kelly’s home. In the
criminal justice system, less than half of serious crimes end in conviction. Examining
similar cases will lead to a better understanding of the issues surrounding cases
dropped from the criminal justice process.
Introduction
The process by which a case moves through the criminal system is by no means
automatic, and cases move through many stages. Take R. Kelly’s case, for example.
Although the procedures for the initial arrest may have mirrored many others like it,
the lack of probable cause for the search warrant made it difficult to prosecute.
Although R. Kelly was charged with twelve counts of child pornography in the state of
Florida, the issues with the invalid search warrant resulted in the state dropping these
charges against him. Cases similar to R. Kelly’s are often dropped from the criminal
justice system due to case attrition.
Models of the Criminal Justice System
How do you envision the criminal justice system? Let’s explore some analogies for how
crimes are processed through the system.
Select each item to learn more.
Funnel
A funnel is wide at the top, where it has a greater capacity. As the funnel narrows, it has less
capacity. This analogy illustrates how attrition occurs as cases progress through the
system. More cases enter the system than reach the end of the process.
In the criminal justice system, the funneling process removes defendants who settle outside
court from the funnel, thereby limiting the number of cases that progress to trial. The
funneling system has a few disadvantages. Those who have committed less serious crimes
usually serve only a probation period and are incarcerated only if they violate probation.
Some argue that the funnel process is a means for not trying criminals and not bringing
offenders to justice. In addition to other tactics, some cases are dismissed for lack of
evidence, and some defendants settle out of court to narrow the flow of cases in the funnel.
Wedding Cake
Cases are sorted into layers similar to the many layers of a wedding cake. The
relatively few, very serious cases are the smallest layers on the top, while the more
numerous, less serious cases are the larger layers at the bottom. Cases at different
layers are treated differently and attract different amounts of attention, but cases
within each layer should be treated consistently.
Net
A net allows some offenders to exit at certain points, while others get entangled in
the net and struggle to free themselves.
Criminal Justice Process
All the participants in the criminal justice process make decisions that help determine
whether a case makes it to trial or is dropped along the way. The following are the steps of
the criminal justic process:
Select each item to learn more.
Potentially Illegal Action Occurs
Legislators and courts determine whether an action is illegal and whether an illegal action is a
civil offense or a criminal offense.
Crime Is Detected
A crime must be detected before it proceeds through the justice system. A large number of
crimes are never detected for a variety of reasons. Victims might be fearful of reporting the
crime or simply might not want the resulting intrusion to disrupt their lives. Some victims
might even be unaware that they are victims of a crime.
Police Substantiate Crime
When a potentially illegal action is reported or detected, the police must first determine
whether a crime has been committed and then determine who committed the crime. Police or
investigators from the prosecutor’s office conduct a preliminary investigation. They also
determine the level of the offense and decide whether to pursue the case.
Prosecutor Decides to Pursue Case
Prosecutors must use their discretion when deciding whether to pursue a case. They look at
the quantity and quality of the evidence and the type of illegal action that occurred. Our
judicial system is not equipped to prosecute every possible case; therefore, prosecutors must
wisely prioritize cases.
Case Goes to Court
If the prosecutor decides to pursue the case, he or she presents the case to a judge or, in some
cases, to a grand jury. At this point, the judge or grand jury can dismiss the case if there is
insufficient evidence to warrant proceeding.
Case Goes to Trial
If the judge or grand jury determines that there is sufficient evidence for the case to proceed,
it goes to trial. At trial, defense and prosecuting attorneys continue their investigations,
judges oversee courts, and juries determine outcomes.
Case Attrition Decision
Case attrition can occur at several points in the criminal justice process, from the passage of
the law to the jury’s verdict. Case attrition also depends on the relationship between police
investigators and the prosecutor.
Select each item to learn more.
What Determines Whether an Action is A Crime?
Actions are defined as legal or illegal according to the decisions of the legislature, the voting
public, and the courts. Actions that may be unethical are not necessarily illegal, and to
progress in the criminal justice system, actions must be deemed illegal. For example, one
person might not think it is right for a parent to spank a child; however, the legislators, voters,
and judges must determine if this action is illegal.
When a Crime Is Committed, Is It Detected?
Even if an action is illegal, it does not enter the criminal justice system unless it is
reported to the proper authorities. In some cases, victims do not report crimes or
might be unaware that they have been victimized, such as in cases of stolen
identity. For example, elderly citizens might be unaware that they are victims of an
insurance scam.
When a Crime Is Detected, Will It Become a Criminal Case?
A crime must be classified as such based on police investigation or by the
prosecutor’s office. If the action is not classified as a crime, the case will not enter
the system. If the action is classified as a crime, it can be discarded for several
reasons, such as lack of evidence or an official decision not to pursue it.
When a Crime Is Substantiated by Police Investigation and Reported to
the Prosecutor, Will It Become a Criminal Case?
A crime becomes a criminal case only if the prosecutor decides to pursue it. The
relationship between the police and the prosecutor is significant because the two
must work closely and cooperatively. As previously discussed, factors such as a lack
of evidence and limited resources can prevent a crime from being pursued as a
criminal case. At this point, the case might also be dropped because victims choose
not to press charges. Note that in some instances, such as cases involving domestic
violence, some prosecutor’s offices have instituted a no drop policy, which allows a
prosecutor to pursue a case based on other evidence if the victim declines to press
charges.
When the Prosecutor Pursues the Case, Will the Case Go to Court?
For a case to continue through the criminal justice system, the prosecutor must
meet the burden of proof by presenting sufficient evidence of the crime.
Under a
no drop
policy, a prosecutor can pursue charges when the victim refuses to sustain the
complaint.
A case only becomes
criminal
when a prosecutor decides to pursue it.
The
case attrition
process can occur at any time during the criminal justice process.
A crime must be detected before it can proceed through the justice system.
True
False
Legislators have no say over whether or not a potentially illegal action is considered a civil or
criminal offense.
True
False
Not all illegal actions go through the criminal justice system.
True
False
Review
More cases enter the system than reach the end of the process. This can mean that
criminals who commit less serious crimes are not incarcerated, but it can also mean
that those who committed more serious crimes have their cases dismissed because of
mistakes made during the criminal process. In R. Kelly’s case, although he may have
committed a crime, attrition occurred as a result of improper procedure during the
preliminary investigation. If the process of the law had been followed more precisely
by the officers who obtained the search warrants, R. Kelly’s case may have ended
very differently.
Introduction
The job of law enforcement officials is to keep peace and order in cities and towns.
When Judy, a police officer, gets a call about a theft that occurred in a local business
in her town, it is her duty to make the arrest and uphold the law to prevent further
arrests. In this case, Judy uses her discretion on whether or not to pursue the case.
It is up to her to decide if the case enters the criminal court system, and she may
base her decision on several factors, such as the amount stolen or the criminal history
of the person arrested.
Role of Police
The police play a significant role in the U.S criminal justice system because their
actions determine which cases enter the system. Police discretion refers to a police
officer’s decision whether to pursue a case. Let’s take a look at a potential example.
In a suburb of New York City, police dismissed all charges against a teen driver who
was charged with a fatal crash in 2010. City investigators found that Drew Smith, a
17-year-old East High School student, was driving late at night with a friend at speeds
exceeding a safe limit. The police report stated that Smith was driving 50 mph in a
designated 30 mph zone. During this time, he lost control of his vehicle and crashed
into a tree. The friend riding with him died at the scene, and Smith was arrested. At
the time of the arrest, Smith was charged with a DWI and criminally negligent
homicide because police officers found a bottle of alcohol in the car. However, when
Smith was detained, a blood toxicology test proved that Smith had no alcohol present
in his body. At his first court hearing, a county judge dismissed the charges and ruled
that Smith could not be criminally charged with speeding because speeding, without
other factors present, is not a criminal offense.
Lack of Evidence
Sometimes, an officer will not want to pursue a case to a criminal court. For example,
there might not be enough evidence, or the situation might be remedied by another
means. Let’s take a look at an example.
Police officer Eric Johnston was on patrol late Saturday night in February 2011. During
his patrol, he was working on a busy city street lined with bars and restaurants.
Around 11:30 p.m., a man approached him. The man, Joshua Levitt, claimed that he
had just been assaulted by another man, Daniel Brown. Levitt told the officer that
Brown struck him on the cheek (Levitt had a bruise on his left cheek). Johnston
questioned both individuals and onlookers who were in the vicinity during the time of
the assault. He was unable to find any witnesses to the incident, but as a precaution,
he detained Brown. At the time of Brown’s first hearing, no witnesses had come
forward. A county judge determined that there was not enough evidence to prosecute
Daniel Brown and dropped all charges against him.
Additional Responsibilities of the Police
Police officers must function within legal, social, and ethical guidelines. Many police actions
depend on police discretion. As protectors of the peace, law enforcement officers must use
their best judgment and their knowledge of state and local law. Police are also responsible for
maintaining the following:
Select each item to learn more.
Prioritization of Resources
The need to prioritize resources affects police departments just as it affects prosecutors. For
example, police departments must determine where available personnel are most needed.
They must decide which crimes demand the most attention and how to best support the
agencies with which they interface in the community.
Public Safety
Public safety also factors into police discretion. When enforcement of a law runs the
risk of causing unrest or a response that would endanger the safety of a larger
group, police may choose not to pursue the issue or develop an alternative strategy
to address it.
Community Norms
Diversity and community norms impact police discretion. A behavior that is common
in a specific community but contradicts regulations might be ignored if the behavior
is not disruptive and is an inherent part of the community’s culture. For example,
most municipalities have regulations about neighborhood block parties, especially if
alcohol is involved or streets are blocked. In many cases, however, police ignore
these regulations if the event is not disruptive.
Conversely, actions that are legal but raise concern within a community might call
for law enforcement attention.
Court System
Police officers and other law enforcement personnel are specially trained citizens
who monitor and impose law. Police work to reduce crime by patrolling communities
and enforcing the law. When an individual has violated the law, it is law
enforcement’s job to bring that individual to justice. Once police have detained a
criminal, a charge is filed and the criminal enters the court system to be tried.
Public Order
Activities that require attention to maintain public order in one location might differ
from those that require attention elsewhere. For example, in urban areas, certain
crimes might go unnoticed in the interest of pursuing more pressing issues that
represent a larger public threat. The same crimes might be considered more serious
offenses in rural areas.
Conversely, activity that represents a threat to public order in rural areas might be
of little concern to city law enforcement agents. For example, setting off fireworks
might be against the law, but police in rural areas might ignore this law, while police
in urban neighborhoods might strictly enforce it.
Points of View Regarding Police Discretion
When a police officer uses discretion, the officer chooses how he or she will approach a
violation or potential violation. Because every situation is different, officers typically make
decisions based on the unique circumstances of each situation they encounter. In reality, laws
are guidelines that provide direction for actions. Individual judgment is a factor in applying
the guidelines. The downside of discretion is that it increases the potential for selective
enforcement of the law and can raise issues of favoritism and bias.
Let’s explore some points of view regarding police discretion.
Select each item to learn more.
Equality
Individuals want the law to be applied equally, yet they usually want justice to be personalized to their
situation. This is a dilemma when officers try to apply the law fairly. Let's consider an example: If you
pulled over by an officer for not stopping at a stop sign, the officer can choose to issue a ticket or simpl
warning.
This situation can be challenging for a variety of reasons. If the officer runs your driving record, and thi
your first violation, he or she might only give you a warning. If you are a repeat offender for traffic viol
he or she might issue a ticket. Violation situations vary depending on the offender and the officer.
Law
In some circumstances, a police officer cannot use discretion and must enforce the law. For example, if
someone witnesses an armed robbery at a bank, the responding officer must arrest the suspect and bring
her to be tried in a court of law.
Justice
Justice can mean blanket application of the letter of the law to all situations, regardless of individual
circumstances. Conversely, it can mean consideration of individual circumstances and application of th
with those circumstances in mind.
For example, should someone who is speeding to get to a hospital due to a medical emergency receive t
same punishment as someone who is speeding because his or her judgment is impaired due to intoxicati
Law enforcement must take these factors into consideration when faced with these situations.
The Pros and Cons of Police Discretion
Police discretion can result in both leniency for offenders and undue control and misuse
of authority. Identifying an appropriate balance in applying police discretion is critical
for many stakeholders in society and is an ongoing research question.
If you have received a warning about speeding instead of a ticket, you probably think
the officer acted appropriately in exercising discretion in your case. Many people would
approve such discretion by an officer who stops a speeding car only to discover that
the anxiety-racked driver is a husband trying to make it to the hospital before his wife
gives birth in the back seat. Yet discretion by police often causes outrage, as when
police appear to be favoring certain individuals or groups. Let’s consider an example.
A well-known local congressman is stopped by a police officer for speeding. When the
officer runs the politician's record, he notices that there are numerous warnings and
tickets for speeding. However, this is an election year, and the police need this
congressman's support to retain their benefits and current wages. In an effort to show
support for the congressman, the police officer allows him to leave with a warning.
In the preceding example, many would claim that the officer's act is inappropriate and
favors the individual for improper reasons. The way we perceive police discretion (or
discretion by other criminal justice system actors) depends on how we perceive
justice.
Examples of Police Discretion
Let’s examine three scenarios that would require police discretion:
Select each item to learn more.
Suspicious Activity
On May 25, around 8:30 p.m., a police officer sighted a minority male wearing all black
lingering in the alley behind a business establishment in downtown Chicago. The man had his
hands in his pockets and was pacing around the back door of the business. As the police
officer watched the suspect, he noticed that he was constantly looking up and down the alley
and often ducking behind the stairs leading to the back door.
In this situation, the police officer is forced to use his or her judgment. Is the suspect on
private property? Is he potentially causing harm to another?
Answer
Upon investigation, the police officer found that the ally was public property, and the man in
question was waiting for another individual. When the officer questioned the pair, they were
heading to a concert later that evening, and both left the premises after the interrogation.
Littering
During a Saturday afternoon patrol of a local park, a police officer spotted a middleaged female walking her dog through the park. The dog was not on a leash and
relieved itself on park grounds. The dog owner did not pick up after the dog and
continued walking through the park.
In this situation, the police officer must use his or her discretion and decide whether
to intervene. Are leashes for animals required in the park? Are there signs in the
park indicating that owners must pick up after their animals?
Answer
According to park law, all owners must leash their dogs, numerous signs are posted
that state that owners must pick up after their dogs. When the police officer stops
the woman, she recognizes her error. The police officer then proceeds to give the
owner a ticket for the littering aspect of the offense, as the owner has a leash for
her dog with her and properly uses it after the interrogation.
Public Intoxication
During a patrol on a Friday night in June, a police officer noticed a middle-aged man
stumble out of a local bar. The man stumbled farther down the street and began
yelling at bystanders. The man then proceeded to threaten one of the bystanders
with violence.
In this situation, the officer must use his or her judgment and consider both the
individual’s behavior and the circumstantial evidence. What should the police officer
do?
Answer
The police officer questions the man, who has alcohol on his breath. The man admits
to drinking, but he cannot be sure as to how much. The police officer asks that the
man take a breathalyzer toxicology test. When the man refuses, he starts to run
from the officer. The law enforcement officer was able to successfully stop the
running suspect and detain him for suspicion of public intoxication and disturbance
of the peace.
Influences on Police Discretion
Numerous factors influence how the police make decisions. Let’s examine the three major
influences on police discretion:
Select each item to learn more.
Officer or Department Characteristics
Department policies and organizational structure (such as the size of the department) can
influence the way in which decisions are made. In addition, the way in which an officer views
a law can influence how he or she chooses to enforce it. Remember, the practice of law is
based on philosophy, and each person interprets the law differently. Factors like a suspect’s
demeanor and criminal record and system variables, such as a city’s need for revenue, can all
affect how an officer acts in a given situation.
Nature of the Offense or Offender
Certain characteristics of suspects can influence the way in which police exercise
discretion. Race has been cited as an influence on police discretion. Citizens who are
perceived as respectable and law-abiding have been shown to receive more lenient
treatment than those who make a less positive impression.
For example, a woman is pulled over for speeding (15 mph over the posted limit).
When the officer approaches the vehicle, he notices that the woman has two
screaming children in the back seat. During the interrogation, the officer notes that
the woman is doing everything she can to quiet her children, but to no avail. The
woman acknowledges that she was speeding and says she was trying to get her kids
home. The officer lets her off with a warning due to the circumstances surrounding
the situation: a mother caring for her children who are upset and trying to return
them home.
Offense Penalties
It has been shown that police exercise discretion in enforcing laws that mandate
penalties for certain behaviors. This type of discretion has been attributed to the
influence of community values. For example, if a rural community is highly religious
and morally opposed to the death penalty, but the death penalty is legal in the
state, the local authorities and prosecutors might seek life in prison as opposed to
capital punishment.
Briefly describe an instance of police discretion that has a direct affect on the
criminal court system.
Answers will vary. Possible factors include police judgment, the law, equality, points of
view on justice, bias, personality, department characteristics, the nature of the offense
or offender, and the penalties for an offense.
Police officers use
discretion
when dealing with how to approach a violation or potential violation.
A guideline is another name for a law that helps to provide officers with
direct action
.
While self-judgment is a technique used by officers, one of the more controversial
techniques is
selective enforcement
Review
When Judy arrives at the local mall on a call about a theft in one of the shops, she
considers a number of factors before making a determination about how to proceed
within the confines of legal, social, and ethical guidelines. In this case, the shoplifter
in question is a 22-year-old girl named Sandy who has no previous record of criminal
history. She has been caught stealing a pair of shoes. Judy works together with the
theft prevention team in the store and issues Sandy a citation, but Judy does not take
her to the police station because of her lack of criminal record. From this point forward,
the charge will be filed and Sandy will enter the criminal court system to be tried in
regard to her case.
Introduction
Steven was finally tried and just found guilty of robbing a bank five years ago. For the
original trial date, Steven “jumped bail” and did not appear at his trial. When he
recently returns to court for a similar case of robbing another bank, Steven’s bail is
set much higher. Steven is now considered a flight risk because of his history of
jumping bail. To ensure that Steven appears in court for his trial, the fine will be much
higher than the one for his first offense, and Steven will likely find it much more
difficult to secure a third party to post his bail.
Basics of the Bail System
Have you ever heard in a news report that “bail was set at $10,000”? Did you wonder what
that meant?
Select each item to learn more.
What Is the Bail System?
The bail system is a process by which an amount of money or collateral is posted to ensure
that an individual charged with a crime remains available for trial. For example, if bail is set
at $10,000, that amount of money or collateral belonging to the defendant is held. If the
defendant does not appear for trial, the defendant forfeits the amount. If the defendant
appears for trial, the bail amount is returned, regardless of the outcome of the trial.
Who Sets Bail?
Jurisdictions set guidelines for setting bail, which are followed by officials in the
judicial system. Who sets bail depends on the jurisdiction. Judges and magistrates
usually set bail. In some jurisdictions, however, a police officer or district attorney
sets bail.
Who Receives Bail?
Most defendants are granted bail, although the United States Constitution does not
guarantee it. The constitution does, however, require that the amount set for bail
not be “excessive.” This means that bail cannot be higher than what is reasonable to
ensure a defendant will appear for trial. The first known use of bail is in Stack v.
Boyle, a 1951 U.S. Supreme Court case concerning individuals believed to have
been involved in the Communist Party who violated the Smith Act. Bail can be
denied to defendants who pose a significant threat to public safety and security.
Denying bail for this reason is known as preventative detention.
How Is the Amount of Bail Determined?
Several legal and extralegal factors can affect the amount of bail. A defendant’s
previous legal history and current standing within the community and the severity of
the crime are factors that can influence the amount of bail.
History of Bail
The bail system was developed in to avoid the responsibility of detaining prisoners.
Before the Magna Carta, sheriffs could hold a person without bail and without cause.
Under the rights of the Magana Carta that “no freeman, in any manner as before
mentioned, be imprisoned or detained,” the bail system was developed to release
prisoners in a timely manner while still guaranteeing their appearance in court.
However, when the gained its independence, the colonies could no longer depend on
the English crown to enforce the law. To remedy this, each colony developed its own
bail law. While some of these laws varied among the colonies, they were all based on
the English system.
Originally, the friends or family of the accused would come forward and attest that
the accused would show up for trial. The sureties could be punished by hanging, or at
least a hefty fine, if the accused did not appear. Those accused of crimes such as
treason, murder, or arson were not eligible for bail because they posed safety threats
to the general public.
Over time, money or property rather than family and friends was used to ensure that
the accused would show up for trial.
Bonds Agent
Have you ever wondered how the occupation of bond agent developed? Because most
criminals in early colonial America left their families behind in , they had no family or
friends to provide their bail. Family and friends who were in did not want to be bound
to the accused because they could lose their property. Consequently, the accused had
to find other means to secure his or her release before trial.
Bond agents fill this need. They have only a financial interest in the accused. If the
accused does not show up, the surety (in this case, the bondsman) has the right to
use force to return the accused to court.
Bond agents often use bounty hunters to retrieve the accused. Bounty hunters are
unregulated, and bounty laws vary among states, but the process is legal. For
example, in the law requires that bounty hunters have a private investigator’s license.
Many other states also have this requirement.
Types of Bail
Four types of bail are used in today's court system:
Select each item to learn more.
Fully Secured Bail
The accused deposits either the full bail amount or property worth the bail amount with the court.
Privately Secured Bail or Surety Bail
The accused contacts a bail bond agent for a nonrefundable fee and posts a bond for the full amount wit
court. This fee is usually 10% of the total bail amount.
Unsecured Bail
This bail does not require the defendant to deposit any money or collateral with the court. If the defenda
not return to court, the full amount is forfeited and payable on demand.
Percentage Bail or Deposit Bail
The accused deposits a percentage (generally 10%) of the total bail amount with the court. If the defend
does not return to court, the full amount is forfeited and payable on demand.
Types of Release or Custody
Individuals can be released without paying bail on their own, in a third party’s custody, or
under conditions set by the court:
Select each item to learn more.
Released on Their Own Recognizance (ROR)
No bail is expected or forfeited if the individual does not return to court, but a warrant might be issued f
defendant’s arrest if he or she does not appear for trial.
Third-Party Custody
An individual such as a parent, family member, or friend promises that the defendant will return for his
hearing. This type of release is usually granted to juveniles.
Conditional Release
An individual is expected to comply with the conditions set by the court (such as avoiding the victim). T
expectations are typically set in addition to posting bond.
Percentage Bail
The accused deposits a portion of the total bail amount with the court.
Privately Secured Bail
The accused contacts a bail bond agent for a nonrefundable fee and posts a bond for
the full amount with the court.
Unsecured Bail
The accused does not deposit any money or collateral with the court.
Fully Secured Bail
The accused deposits either the full bail amount or property worth the bail amount
with the court.
When a defendant is released on his or her own promise to return for a court
hearing, it is known as
released on their own recognizance (ROR)
.
When a released defendant is expected to comply with the expectations set by the
court, it is known as
conditional release
.
When another person promises that the defendant will return for a court hearing,
this is known as
third-party custody
.
Review
In Steven’s past case, his family helped post his bond, which was lost when he did not
show up for trial. To secure his release before his current trial, Steven needs to contact
a bond agent who will post his bail. If Steven does not show up for court, a bounty
hunter will be employed to retrieve him. A bounty hunter uses a private investigator’s
license to locate Steven by any means necessary, within the parameters of the law,
to return him to the court system so he can be tried for his case. If a bounty hunter
is used, Steven will also be charged for jumping bail a second time, and his penalty
will be higher.
Introduction
Whether or not Steven, who has been accused for the second time of robbing a bank,
is granted bail depends on a number of factors. During his hearing, Steven’s
prosecutor points out that Steven is a flight risk and bail has not prevented him from
leaving the state before. Steven’s defense attorney attempts to counter this by
pointing out that Steven is no threat to society, and in contrast to his last arrest,
Steven now has a family in the state and is unlikely to flee. Even if Steven is granted
bail, he could still have issues acquiring payment for his bail.
Influences on Bail
Various members of the court help the judge decide whether to grant bail and, if bail is
granted, determine the amount of bail. Judges who set the bail amount consider the input of
their courtroom colleagues.
Select each item to learn more.
Prosecutors
Prosecutors might seek a high bail amount by pointing out the defendant’s flight risk or danger to the
community.
Defense Attorneys
Defense attorneys work in the interest of their clients by seeking bail and attempting to reduce it as muc
possible. Defense attorneys might point out their client’s indigence, lack of prior record, or personal
circumstances to support their requests for a lower bail amount.
Bond Agents
Bond agents support the courts by allowing defendants to be released when otherwise they might have
remained in jail. Local jurisdictions have bail bond boards, consisting of local elected officials, which r
the industry.
Police
In some jurisdictions and in certain cases, the police are responsible for setting bail. If the police do not
bail to an accused person, that person is entitled to a bail hearing before a magistrate, typically within 4
The charges filed by police also significantly influence the amount of bail that is set.
The Manhattan Bail Project
The Manhattan Bail Project was a study that resulted in the Bail Reform Act of 1966,
giving defendants in federal cases the right to bail whenever possible. The study
showed that effective screening of defendants resulted in a high percentage of them
returning for trial.
Bail System Challenges
The bail system has been criticized on several points, most focusing on how the system works
better for the rich than for the poor. Consider the following issues on the bail system:
Select each item to learn more.
Discrimination
The bail system discriminates against the poor because the poor are less likely to be able to
post the money or have the collateral needed for bail. In addition, bond agents are not
required to accept anyone as a client and might be less likely to accept those with little or no
capital or property.
Due Process
Bond agents have their clients sign a release form that authorizes use of skip tracers (people
who are hired to find individuals who skip town) to locate them if they do not return for trial.
Skip tracers have significant arrest powers and are not bound by the same due process
concerns that can hinder law enforcement officers.
Corruption
Some judges set excessively high bail in exchange for kickbacks from bond agents.
Collection
In some cases, courts do not follow through on collecting forfeited bonds for fear of
aggravating the bonds agent. The bond agent retains the forfeited bonds in addition to the fee.
Crime
Some defendants commit crimes to get the funds needed to pay their bail.
The bail system tends to treat persons of all income levels fairly.
True
False
The skip tracers bond agents use are bound by law to uphold due process.
True
False
What was the Manhattan Bail Project?
The Manhattan Bail Project was a study that showed effective screening of defendants
resulted in a high percentage of them returning for trial. It resulted in the Bail Reform
Act of 1966.
Review
When Steven’s trial date and a high bail price are set, Steven arranges for a bail bond
from a bond agent. However, Steven is poor and the system does not account for this
situation. He does not have enough money to supply bail to the bail bondsman and
considers committing another crime to pay for it. In this way, the system does not
favor Steven, even if he fails to return to court. In addition to court fees, he will have
to pay a significant percentage of the bond price posted to the bail bondsman for his
service. Though the system may keep Steven from leaving before his trial, it is far
from perfect.
Summary
Not every unlawful action or arrest results in a case that goes to court. From high
profile cases such, as Winona Ryder’s, to local arrests, the justice system has many
different avenues through which to resolve a case and ensure that defendants are
shown fair and ethical judgment under the law. For many reasons, a number of these
cases never make it to court because of case attrition due to lack of evidence or other
mitigating factors that make it impossible to build a case against a defendant.
Understanding the criminal court system and the process in which cases move through
this system helps criminal justice professionals become key players in the progress of
seeing that justice is served.
MODULE 8
Overview
Rudy is being prosecuted in a driving under the influence (DUI) case. This is Rudy’s
first offense, but as a manager of a small restaurant, Rudy’s income cannot feasibly
support the number of fees involved in a lengthy court case. Rudy decides to enter a
plea bargain to have his first DUI offense lowered to reckless driving. Rudy will save
money on attorney fees and be able to get out of jail immediately if the judge accepts
his plea bargain. The plea bargain will also help him resolve his case quickly.
In addition, Rudy will hire a skilled DUI attorney. Rudy’s DUI attorney may attempt to
have the charge reduced by finding a legal issue that exists in the case. His attorney
will thoroughly investigate the case, make sure that the DUI officer had a lawful basis
to stop Rudy, and confirm that the officer had probable cause to support the arrest
and that the breath and blood tests were administered correctly. Rudy’s attorney will
also illustrate any mitigating circumstances, such as Rudy’s lack of criminal history
and his stable and law-abiding lifestyle as an active member of the community. In this
plea bargain, Rudy’s attorney will work to ensure that Rudy receives community
service, pays a larger fine, or attends alcohol awareness meetings in lieu of jail time
or a more severe sentence. He will ensure that every avenue is explored, and once
the plea bargain has been arranged, Rudy will make the final judgment call on whether
or not to accept it. All parties involved will need to have a firm grasp of the types of
plea bargains available to the defendant to settle on the best option.
Introduction
Sam is a first-time offender being prosecuted for a driving under the influence (DUI)
charge. He is currently in school and can’t afford a lengthy trial, so he decides to enter
a plea bargain. His plea bargain is dependent on several factors. He will have to work
with many others aside from the judge to make the plea bargain successful and reach
an outcome that is beneficial to all interested parties. Sam’s defense attorney and the
prosecution will need to come to an agreement for Sam to receive a reduced sentence.
Sam does not wish to run the risk of an uncertain outcome and a more severe sentence
in court, so he agrees to charge bargaining, and his DUI is reduced to a misdemeanor.
Plea Bargains
A plea bargain is the negotiation process, typically between a prosecutor and a defense
attorney, in which the parties work together to obtain some concession (usually a
reduced sentence) for the defendant in exchange for the defendant’s agreement to
plead guilty. The process avoids a trial, so it appeals to both attorneys, who typically
seek to avoid the uncertain results of a trial.
An Example of a Plea Bargain
On January 8, 2011, a man named Jared Lee Loughner killed 6 people and attempted
to kill 16 others in Tucson, Arizona. Loughner, a former community college student,
went to a local Safeway where Congresswoman Gabriel Giffords would be meeting
with the public and opened fire on her and bystanders. Jared Loughner was detained
just after the shooting and was taken into custody. He was officially charged in a
federal court with attempted assassination of a member of Congress, two counts of
murder of a federal employee, and two counts of attempted murder of a federal
employee. Prosecutors also wanted to charge Loughner with the murder and
attempted murder of the victims who were not federal employees.
This attack was highly publicized and created a lot of controversy throughout the
United States. Because Loughner had been previously diagnosed with schizophrenia,
the courts determined that Loughner was insane. After many lengthy court
proceedings and hearings regarding his mental health, Loughner plead guilty to life in
prison without the possibility of parole on August 7, 2012, instead of standing trial.
This is an example of a plea bargain.
Types of Plea Bargains
The main types of plea bargains and their features are as follows:
Select each item to learn more.
Explicit Plea Bargain
Explicit plea bargains are formal bargains. In these cases, the defendant is given something in
exchange for pleading guilty to the charge. The attorneys and judge discuss and negotiate in
an explicit plea bargain. Even though the Constitution protects our right to a trial by jury, 90
to 95% of individuals convicted of felonies in the waive their right to a trial by entering a
guilty plea.
Many (but not all) of the guilty pleas result from plea bargaining. The defendant’s goal is to
gain some leniency in the sentence, offense being charged, length of prison term, amount of
fine, or type of prison facility. Defendants who do not participate in plea bargaining if it is
offered run the risk of being convicted and incurring more severe sentences.
Implicit Plea Bargain
Implicit plea bargains do not involve a direct promise of leniency. In these cases, the
defendant is given hope for leniency if he or she pleads guilty; however, there is no
guarantee or formal agreement. The defendant must decide whether to plead guilty
based on how the judge assigned the case typically rules on similar cases by
identifying the judge’s record and temperament.
The defendant makes a decision hoping to get a specific type of sentence and runs
the risk that a severe or maximum sentence will be imposed. As you can see, an
implicit plea bargain is not really a bargain. There is no discussion between
attorneys or judges.
Charge Bargaining
Charge bargaining is a common type of plea bargaining technique in which the
defendant pleads guilty in exchange for a less severe charge. In some cases,
defendants facing a felony charge might plead guilty in exchange for a lesser
misdemeanor charge that would receive a much less severe sentence. For example,
a defendant facing a first-degree murder charge that has a sentence of life in prison
might plea bargain for a lesser second-degree murder charge that has a 30-year
prison term.
Sentence Bargaining
Sentence bargaining is another common type of plea bargaining. In these cases, the
defendant pleads guilty in exchange for a lighter sentence. This type of plea
bargaining is common for defendants facing the death penalty. The defendant pleads
guilty in exchange for changing the death penalty sentence to a life sentence. This
type of plea bargain can be used in any type of crime.
Count Bargaining
Count bargaining is the final type of plea bargaining. In many crimes, the defendant
is charged with more than one crime or with several instances (counts) of one crime.
For example, if a driver acts recklessly and kills four people, the charge might be
four counts of vehicular homicide. The plea bargain might be a plea of guilty in
exchange for a reduction from four counts to one count of vehicular homicide. If a
defendant is charged with several crimes, the plea bargain might be a plea of guilty
to one of the crimes and, in exchange, the charges for the remaining crimes are
dropped.
An explicit plea bargain is a formal plea bargain in which a concession, typically a
reduced sentence, is offered to the defendant in exchange for pleading guilty.
True
False
An implicit plea bargain is a formal plea bargain in which the defendant is promised
leniency in exchange for pleading guilty.
True
False
A plea bargain in which a defendant pleads guilty in exchange for a reduction in the
severity of charges he or she faces is known as
charge bargaining
.
A plea bargain in which a defendant pleads guilty in exchange for a reduction in the
number of crimes with which he or she is charged is known as
count bargaining
.
A plea bargain in which a defendant is promised a lighter or alternative sanction in
exchange for pleading guilty is known as
sentence bargainin
Review
The resolution of Sam’s case is also beneficial to the judge and prosecuting attorney.
Although the prosecuting attorney may be able to induce a higher penalty for Sam’s
drunk-driving case, the amount of time and uncertainty involved in pursuing the case
to trial makes it unlikely that the prosecutor will do so. In this formal agreement
between both parties, Sam still pleads guilty and the prosecution is confident they
have done their job by ensuring that Sam thinks twice before he heads back out on
the road intoxicated.
Introduction
In an evolving and lengthy system, the criminal courts of today allow defendants the
chance to enter into a plea bargain to avoid lengthy criminal trials. Before the
eighteenth century, trials for offenses far less grievous than drunk driving happened
rapidly and did not give defendants the opportunity to negotiate with the prosecutor
for a less severe sentence. Entire communities might have prosecuted a single
individual to bring that person to justice. The lack of regulation could have led to an
unfair sentence that was based more on public opinion and superstition than the facts
of the case.
Early History of Plea Bargains
One of the earliest documented plea bargain offers was in 1431. Joan of Arc was
offered the opportunity to save herself from being burned at the stake as a heretic by
recanting her statements that she had heard the voices of three saints sent to her by
God and was acting on holy directions to help free France from the English. She
refused.
Before the eighteenth century, a trial was dominated by a judge and the defendant
had no representation. Trials were so speedy that a plea bargain was not option for
the accused. American law stemmed from English legal practice, but after
independence, the American legal system had to develop its own system of plea
bargaining. Early U.S. law did not fully adopted plea bargaining, but many courts
allowed it.
Plea bargaining dates back hundreds of years. In the Salem witch trials of 1692,
accused witches were told if they confessed they would live, but if not, they would be
hanged.
Plea Bargains throughout History
Although there are examples of plea bargains throughout history, they are very
different from plea bargains in the modern criminal justice system. Today’s plea
bargains appear to have developed out of desire for conviction.
In the 1800s, plea bargaining became the norm in Boston. Public ordinance violators
could expect lenient sentences in the city’s police court if they pled guilty.
In the 1900s, although not completely endorsed by the appellate courts, plea bargains
took place primarily to reduce charges.
Today, plea bargains account for 90% of convictions.
Modern
plea bargains
appear to have developed out of a desire for conviction. This means that
public ordinance violators
can expect lenient sentences if an admission of guilt is pledged. Though not entirely
endorsed by
appellate courts
, convictions of this nature rank high.
Plea bargains account for 90 percent of convictions today.
True
False
One of the earliest known documented plea bargains took place in 1431 during the
Salem Witch Trials.
True
False
Review
Imagine entering the criminal courts system on a charge—it could be burglary,
assault, murder, or drug possession. Once you enter the court system, you begin your
case. If during the proceedings of your case you consent to a plea bargain, you will
be among the nine out of ten people in the current U.S. court system whose
convictions result in plea bargains. In this way, outcomes that are favorable for all
parties involved can be reached, and the criminal system is not overwhelmed by those
who go through the lengthy process of the court system.
Introduction
Joseph is charged with felony theft, and he and his attorney decide to enter a plea
bargain. They must go through several steps before entering the plea bargain. After
examining the case, Joseph’s attorney offers to negotiate with the prosecuting
attorney. The goal of this case is to reduce Joseph’s felony theft charge to a
misdemeanor theft charge. The prosecuting attorney is likely to make an offer, and
Joseph’s attorney then lays out these options for Joseph to accept. This bargain is
then sent for judicial approval. Many other cases like Joseph’s will go through a similar
process before the plea bargain is official.
The Plea Bargaining Process
Plea bargaining can be broken down into five steps:
Select each item to learn more.
Step 1
The two groups, prosecution and defense, examine the case and determine its worth.
Step 2
One of the parties, usually the defense attorney, approaches the other with an offer
to negotiate the case.
Step 3
The resulting bargain may involve dropping charges, reducing the severity of
individual charges, or making specific sentence recommendations.
Step 4
After the attorneys agree, the defense attorney outlines all the options to his or her
client and advises the client whether he or she should take the offer.
Step 5
The bargains must meet with judicial approval, but plea bargains are rarely turned
down unless the sentence appears too harsh or too lenient. In these cases, the
attorneys rework their bargain, which is known as busting a plea.
Defense Attorney versus Prosecuting Attorney
When might the attorneys from each side of the case not want to bargain?
Select each item to learn more.
Defense Attorneys
Defense attorneys might prefer to go to trial rather than plea bargain if the following
conditions exist:




The chance for an acquittal is high.
The public has a high level of sympathy for the defendant.
Someone other than the defendant might be blamed for the crime.
The bargain gives little benefit or advantage to the defendant.
Prosecuting Attorneys
Prosecuting attorneys might prefer to go to trial rather than plea bargain if the following
conditions exist:




Strong evidence exists, and the likelihood of a conviction is high.
Evidence clearly supports a guilty verdict.
The case is straightforward.
The case is highly publicized.
The Judge’s Role
What is the judge's role in plea bargaining?
The judge must confirm that the defendant voluntarily agrees to the plea bargain and
understands the implications.
Courts require the judge to sign a Guilty Plea Proceeding Form, which provides a
checklist to help the judge make this determination and ensure that the constitutional
rights of the defendant are protected.
Guilty Plea Proceeding Form
The judge must ascertain the following:
Select each item to learn more.
The defendant understands the charges set forth in the complaint and indictment.
The defendant understands the range of possible sentences for the offenses charged (from a suspended
sentence to the maximum sentence).
The defendant understands the constitutional rights he or she forfeits by pleading guilty.
The defendant wishes to forfeit the constitutional rights of which he or she has been advised.
The facts support the belief that the defendant is guilty of the offenses charged.
The defendant and the prosecutor have entered into a plea agreement, and the defendant understands an
consents to its terms.
The plea is voluntary and not the result of force, threats, or promises other than the promises included i
plea agreement,
Under the circumstances, it is reasonable that the defendant plead guilty.
The defendant understands that a conviction may have an effect on his or her immigration or naturaliza
status.
In plea bargaining, the prosecution and the judge negotiate a deal.
True
False
The defense attorney must advise the defendant to accept the plea bargain.
True
False
A judge will often turn down a plea bargain deal if he or she believes the sentence is too
harsh or too light for the crime.
True
False
Plea bargains are not approved by judges.
True
False
0
Remaining
<>
The Defense Attorney Will Pursue Trial Rather Than Plea Bargain
The possibility for acquittal is high
Someone other than the defendant might be blamed
The Prosecuting Attorney Will Pursue Trial Rather Than Plea Bargain
The verdict for a guilty verdict is highly probable
The case is highly publicized
Review
Joseph, who is charged with felony theft, is likely to accept a plea bargain because he
wants to reduce the severity of his sentence. However, if the prosecuting attorney
does not offer a less harsh alternative and this negotiation does not give Joseph any
advantage to accepting the plea bargain, he is likely to move the case forward to trial.
This option contains more risks for Joseph and a great deal of uncertainty. However,
if the offer from the prosecuting attorney is harsh, Joseph may be able to obtain a
less strict sentence in front of a panel of jurors.
Introduction
Plea bargains have a positive impact on the judicial system because they help keep
cases—such as those involving first-time driving under the influence charges (DUIs)
or theft—from overcrowding the courts. Defense attorneys can maximize their
efficiency by pursuing plea bargains, and prosecutors can maximize a level of control
over the defendant’s sentence. If a defendant goes to trial, the defense attorney may
convince the jury to acquit the alleged offender. The plea bargain ensures certainty
and minimal costs for all parties involved, including the defendant, the judge, and the
attorneys.
Effects of Plea Bargains
What effects does plea bargaining have on courtroom work groups?
If there is a 10% reduction in the number of plea bargains, the number of trials could
double and overwhelm the court system. For this reason, courtroom work groups view
plea bargains as a positive component of the judicial system.
Plea bargaining enables judges, prosecutors, and defense attorneys to work together
to meet their individual and collective goals.
Benefits of Plea Bargains
How do plea bargains benefit each of the parties involved?
Select each item to learn more.
Defense Attorneys
Plea bargains enable defense attorneys to maximize their efficiency. Sometimes the way to
best represent their clients is through careful use of plea bargaining.
Prosecutors
The best defense attorneys can sometimes convince a jury to acquit a guilty and
possibly dangerous defendant, so plea bargains assure prosecutors that the accused
is punished. Plea bargains can also improve a prosecutor’s reputation because the
criminal justice system places more value on convictions than on specific sentences.
Judges
Plea bargains enable judges to avoid time-consuming, expensive, and paperworkintensive trials. They also obviate the need for difficult rulings on vague issues that
often come up during a trial and the burden of sentencing, which is a difficult
process for some judges.
Defendants
Plea bargains give defendants a level of certainty and also lessen the severity of the
sanctions they face. However, if the deal is not what they were hoping for,
defendants might want to take their chance at trial.
Pros and Cons of Plea Bargaining
Let’s examine the pros and cons of plea bargaining:
Select each item to learn more.
Pros




Allows courts to devote scarce resources to the cases that require them
Ensures some form of penalty for defendants who might be acquitted on technicalities
in cases when conviction is less likely
Separates the guilty from the innocent
Benefits victims because then they do not need to testify in court
Cons




Enables offenders to escape the punishment legislated for their crimes
Tramples the rights of poor or uneducated defendants by persuading them to give up
their right to trial
Discriminates against defendants of color, who often receive less desirable plea deals
than white defendants
Discriminates against less informed defendants, who often receive less desirable plea
deals than those with more information
Controversy
Plea bargains are often beneficial to all parties in criminal trials. In addition, it has
been argued that plea bargaining benefits society by ensuring that defendants who
are guilty do not seek acquittal. However, plea bargaining can compel those who are
not guilty to take a plea bargain. When charges for crimes are serious, many defense
attorneys will attempt to persuade their clients to plead guilty when fear and evidence
might convict them of a serious crime they did not commit.
In fact, many studies, including a 2009 study by the European Association of Law and
Economics, found that more innocent defendants than guilty defendants elect to take
a plea bargain due to evidence, fear, and possible unfairness in the courts (such as a
highly publicized case).
Pleading guilty ensures leniency from the court.
True
False
Plea bargaining helps reduce backlogs in the court system.
True
False
Plea bargains enable
defense attorneys
to maximize their efficiency. They also improve the reputation of
prosecutors
. Plea bargains enable
judges
to avoid time-consuming, expensive, paperwork-intensive trials. Also, they offer
defendants
a level of certainty, as well as a less severe sentence.
Review
Some cases are fairly straightforward, such as one involving a first DUI offense, but
consider some of the things that could be unfavorable for a guilty plea outcome. If
Julian—who is charged with his first DUI—has a defense attorney who does not
educate him properly, he could be giving up his right to a trial that could lead to a
more favorable outcome than the plea bargain. In addition, Julian’s lack of information
about his options could mean that he receives a less desirable plea. Although plea
bargaining helps resolve cases more quickly and could produce outcomes that are
beneficial to all parties involved, it also means that some innocent defendants plead
guilty when the crime is serious and the defendant is not properly educated.
Summary
If Rudy’s defense attorney does his job correctly, Rudy will have his plea-bargaining
options fully explained to him, and his defense attorney will work closely with the
prosecution to see that his charges are reduced to less severe ones. A plea bargain in
this case is beneficial to all parties involved and impacts everyone in the courtroom
work group and Rudy, the defendant. After receiving his DUI charges and entering a
plea bargain, Rudy minimizes the money he has to spend in court costs and avoids
more severe penalties while still answering to the law and his criminal offense.
At the same time, the judge, prosecuting attorney, and defense attorney can focus on
other cases on their full calendars. Keeping Rudy out of jail alleviates overcrowding
and the time and money the state has to spend on these less severe criminal charges.
Plea bargaining, if done correctly, means that all parties are involved in a more rapid,
positive outcome as opposed to a lengthy and uncertain trial.
Module 9
Overview
As a citizen of the United States, it is inevitable that Ellen will be required to sit on a
jury at least once. Ellen turned 19 this year and received a slip in the mail requesting
her presence at the local courthouse for jury duty. Ellen has taken off work for the
day to show up at 8:00 a.m. at the courthouse. She waits in a general holding area
for a few hours until a court officer assigns her to a specific room, Courtroom 3.
The judge briefs Ellen and the other potential jurors on the case, and then she is
interviewed by the lawyers for the prosecution and the defense. She is approved as a
juror and assigned a number. For this case, a trial of manslaughter, Ellen is assigned
as Juror 7. She sits in the juror box, takes notes, and once the trial proceedings are
over, Ellen and her fellow jurors deliberate on the outcome of the case. This is the
first time Ellen partakes in her civic duty, but it likely won’t be her last.
What Ellen does not know is that this tradition of trial by jury is an institution that has
been in her country for hundreds of years. In Pre-Revolutionary America, Ellen would
have been selected from the king’s officials, and her modern day presence in the
courthouse is written into the Constitution of the United States.
Introduction
On November 27, 2008, on Thanksgiving Day, a Rivera Beach man named Antwon
Graham shot and killed a 35-year-old man in West Palm Beach. In July of 2012, a 12member jury found Graham guilty of first-degree murder with a firearm and three
counts of attempted robbery with a firearm. During the proceedings, Judge Charles
Barton listened to public defender Michael Schutt as he recounted his client’s troubled
past to the courtroom. Judge Barton’s role in this case was to facilitate the facts while
the jury gathered the evidence to decide the fate of the defense.
Evolution of the Courtroom Trial
Before examining the overall trial process, let’s take a look at how trials have evolved
through history.
Select each item to learn more.
Pre-Revolutionary America
Trial by jury was brought to America from England. When a colonist was accused and tried, the jury was not a
jury of peers but a jury selected by the king’s officials whose priorities were that of the king, not justice.
Justice occurred when there were the same number of jury members partial to the defense as those partial to the
prosecution.
After Independence
The men who wrote the Constitution considered the right to a trial by jury of utmost importance, so they wrote
this into the Constitution itself. Not only does the Constitution protect this right, but the Sixth Amendment
provides the right to an impartial jury. Although early interpretation of the Constitution limited this right to
federal trials, this right was made applicable to states in the mid-twentieth century.
Modern-Day Trials
Today’s interpretation of a trial seeks to provide an opportunity where differing interpretations of events are
offered by each side. Jurors sort through what is presented and then select the version that seems most
plausible. The end result is the jury’s subjective interpretation of the truth in its attempt to ensure justice.
Steps in the Trial Process
Let’s first take a brief look at what happens in the trial process.
Even though the Constitution protects the right to trial by jury, a defendant can choose to
wave this right and ask for a judge to make a decision. This trial format is called a bench trial.
Only 3% of trials are bench trials. Most defendants feel they will have a better outcome if
they are judged by a jury of their peers rather than by one judge.
1
Pretrial motions
2
Attorney preparations
3
Jurors summoned for jury duty
4
Voir dire
5
Beginning of the trial
6
Prosecutor’s opening statement
7
Defense’s opening statement
During the trial, the prosecution makes its closing statement before the defense.
This is true. In some rare instances, plea bargaining can go all the way to the jury
deliberation stage of the trial process.
Review
In courtroom jury chairs all over the country, the fate of individuals, such as Antwon
Graham, are being decided by ordinary citizens. A 50-year-old banker, a 19-year-old
college student, or a 30-year-old writer are all just as likely to be selected for a jury
as anyone else. As long as jurors live within their judicial district for a year, are 18
years of age, do not have any disqualifying conditions, and have not been involved in
any felony charges, they qualify to sit on a panel of jurors for a trial of their peers. A
jury by peers allows for the unique perspective of the jury to weigh the evidence and
testimony to determine questions of fact while the judge aids in ruling questions of
law.
Introduction
As a defense attorney for a murder trial in June of 2011, Angelo MacDonald worked
hard to make sure that the jury his client faced would indicate the most favorable
outcome. Although a jury of peers from within the county is selected at random from
among voter and Department of Motor Vehicle registrations, Angelo wants to make
sure that each juror does not have any prejudice that could impact the ruling on
Angelo’s client. Angelo must look carefully during juror selection for any reason jurors
may have a bias that could influence the case.
Discovery, Negotiations, and Pretrial Motions
Learn about discovery, prosecution and defense negotiations, and pretrial motions, all of
which occur before the trial starts.
Select each item to learn more.
Discovery
Discovery is when the prosecution and defense exchange information to prepare for trial. At
this point, they might take depositions from witnesses. A deposition is an out-of-court
statement given under oath by any person involved in the case.
Ongoing Negotiations between Prosecution and Defense
Negotiations don’t onlypros happen before trial. Negotiations often continue as both
sides prepare to go to trial. Ongoing attempts to reach a settlement can happen
through the entire trial, might take rare cases, while the jury is deliberating.
Pretrial Motions
The defense and prosecution submit relevant pretrial motions to the court for the
judge to decide upon. Motions are requests to the court for rulings on legal matters.
For example, the defense may file a motion asking the judge to dismiss the case due
to insufficient evidence.
Another example of a pretrial motion is a summary judgment motion. This occurs
when it is determined that the facts of the case are in dispute by the prosecution
and the defense, and a judgment needs to be made based on law to settle the
dispute. Other motions include requesting a venue change and requesting the
opposing party to release evidence.
Pre trial motions
Requests for the judge to conduct the trial in a certain manner, for example,
requests to exclude evidence.
Jury Selection
In the past, juries were comprised of “key men” who were prominent citizens in the
community. Women were not eligible to serve on juries until between 1870 and 1940
(depending on the locale). In 1968, Congress enacted the Jury Selection and Service Act,
which required jury pools to be comprised of citizens drawn at random.
Today, a jury is always made of representatives and peers.
Select each item to learn more.
Representatives
It is assumed that jurors from different demographic groups might have significantly different
perspectives on the case. Although evidence is the strongest influence on a case, diversity
among jurors matters. For example, women might be more likely to sympathize with a female
victim. Diverse juries might be perceived as more legitimate than homogenous juries.
Peers
What does a “jury of one’s peers” mean?
You might think that a jury of one’s peersA jury composed of members of the
defendant's community (usually interpreted today to mean the county where the
defendant resides). means that if the defendant is black and male, the jury has to consist of
black males. This is not the case. The right to a jury of one’s peers means that the defendant
must be tried by citizens from his or her community. Juvenile cases are slightly different in
that they might not have juries. In juvenile cases that do have juries, the juries consist of
adults, which some believe is unfair.
Steps in the Jury Selection Process
Learn more about each step of the jury selection process.
Select each item to learn more.
Step 1
Using lists from voter registration and the Department of Motor Vehicles, each county’s jury
management personnel create a master list of county residents.
The Jury Selection Process in Criminal Trials
Step 2
Individuals from this master list are drawn randomly.
Step 3
Some individuals might be eliminated from the list because they moved out of the
county, are unable to serve on a jury for medical reasons, or are exempt (such as a
law enforcement officer).
Step 4
The individuals who remain on the list comprise the venire (the jury panel).
During voir dire, they are questioned by a judge or attorneys to determine whether
they should be seated on the jury. The judge and attorneys want to make sure the
jurors do not have any biases or prejudices that will impact their ruling.
Challenge for Cause
Remember that the attorneys want to make sure the jurors are not biased for a specific reason.
This is called challenge for cause. The attorneys have an unlimited number of challenges if
they can demonstrate real cause. Learn about some of the challenges for cause.
Select each item to learn more.
The potential juror may be acquainted with the victim, the defendant, a witness, or one of the attorneys
The potential juror may have been convicted of a similar crime.
The juror may have expressed prejudice or an inability to be unbiased.
The juror may be physically or mentally ill or have some other legitimate problem makes him or her un
serve as a juror.
In a capital crime, the juror may have stated that he or she is against capital punishment and therefore c
not find a defendant guilty in a capital case.
Peremptory Challenges
Each side has a limited number of peremptory challenges(A legal tool by which an
attorney can ask that a potential juror be dismissed during voir dire, typically without
giving any reason for the request.) to strike prospective jurors from the jury. In these
challenges, attorneys do not have to give a reason for removing the person from the
jury panel. However, there is an increasing realization of the inherent conflict between
the ideal of representation and the use of peremptory challenges.
During the process of voir dire,
prospective jurors
are questioned to determine their suitability to serve on a specific case. By the
1940s, _
women
were allowed to be a part of this process. An unlimited number of
jurors
can be removed from a jury based on bias.
A juror will be removed for bias if he or she is acquainted with the victim, the
defendant, a witness, or one of the attorneys.
The law requires jury pools to be comprised of citizens drawn at random.
Review
Imagine that Lisa, a young woman summoned to her first jury duty, is a resident of
Santa Ana, California, and has been selected at random from among a pool of her
peers potentially to serve on the case of Angelo MacDonald’s client, Eric Naposki.
However, upon further questioning, the defense and prosecuting attorneys decide not
to select Lisa as a member of the 12-person jury for this case. They discover that Lisa
was acquainted with the victim of this crime and believe she would not be able to
administer justice in an unbiased way. For this reason, Lisa is dismissed from serving
as a juror on the case.
Introduction
Joe lives in the town of Indianapolis, Indiana. Joe is summoned for jury duty and is
questioned by the prosecuting and defense attorneys for a murder case. Joe is then
selected as a member of the 12-person jury. Joe does not know what to expect when
the trial begins, but during the course of the proceedings, he will hear the opening
statements from both sides, the presentation of evidence, and the closing statements.
The Trial
The trial begins. The bailiff calls, “All rise!” Everyone stands up as the judge enters the
courtroom and sits down at the bench. What happens next? Let's explore the phases of trial
that follows jury selection.
Opening Statements
Some of the most powerful moments in movies that include courtroom scenes are
during the opening and closing statements. Although these are not the most critical
part of the trial, they can impact the jury’s decision.
The purpose of the opening statement is to provide a framework for jurors to consider
the evidence that will be presented.
The prosecution has the burden of proving its case beyond a reasonable doubt. The
defense has the difficult task of constructing a persuasive opening statement that does
not attack the credibility of the prosecution’s version of the events.
Presentation of Evidence
Two types of evidence may be presented during the trial: direct evidence and circumstantial
evidence. These two types of evidence are detailed below.
The prosecution presents the government’s case. Then the defense presents its case and the
prosecution has the opportunity for rebuttal. When a witness is on the stand, he or she
receives direct examination from the attorney who is using the witness. Then the
opposing counsel questions the witness in what is called cross-examination.
If the counsel on one side believes the other side is making statements that are irrelevant,
prejudicial, or misleading, the attorney will interject with an objection.
Learn more about two types of evidence.
Select each item to learn more.
Direct Evidence
Direct evidence requires little explanation and is usually tangible. Examples include an
eyewitness account, a gun, a confession, a document, and an audio recording.
Circumstantial Evidence
Circumstantial evidence suggests a fact by implication or inference. Examples
include the appearance of the crime scene, testimony that suggests a connection or
link with a crime, or physical evidence that suggests criminal activity.
Closing Statements
After both sides have presented their evidence, including direct examination and crossexamination, the trial concludes and the prosecution and defense provide closing statements.
The prosecution presents its closing statement first, and attempts to persuade the jury of the
facts of the trial. The defense follows with its closing statement. The prosecution then has the
opportunity to rebut the defense’s closing statement.
Closing statements are the opportune time for defense and prosecution to summarize the
events of the trial and remind the jury of the strengths of each argument. Each side presents
the conclusions it wants the jury to reach.
1
Opening Statements
2
Presentation of Evidence
3
Direct Examination
4
Cross-Examination
5
Closing Statements
A(n)
direct examination
occurs when a testifying witness is questioned by an attorney representing the
party for whom the witness was called to testify.
A(n)
cross-examination
takes place when a testifying witness is questioned by an attorney representing the
opposing party.
If an attorney opposes a statement made by the other party, he or she may pose
a(n)
objection
Review
During his time as a juror, Joe finds that the evidence from the prosecuting attorney
is overwhelming. In this criminal court case, a cashier at a local gas station was shot
and killed when she resisted a man’s attempt to steal from her cash register. During
the presentation of evidence, a witness illustrates the killer’s lack of emotion during
the shooting and his clear intent to kill. A video of the robbery was captured on the
gas station’s security camera. The prosecuting attorney’s case is strong, and the
proceedings will help Joe develop a clear understanding of the penalty that should be
administered onto the defendant.
Introduction
Hannah, who has just been selected for jury duty, is worried about her lack of legal
understanding. She wonders how this will affect her role as a member of the jury that
will be making key decisions regarding the defendant’s fate. However, once the
proceedings for an armed robbery case are underway, Hannah realizes her feelings
are normal and is relieved when the judge reminds her and her fellow jurors of their
role in the case. She is given thorough instructions to complete her duty as a juror.
Jury Instructions
After the closing statements and before the jury retires to the deliberation room, the
jury is given instructions about its duties. Sometimes these instructions can take hours
to deliver, depending on the case.
The judge’s charge to the jury in a criminal case outlines the elements of the crime
that must be proven and reminds jurors that the prosecution carries the burden of
proving the defendant’s guilt beyond a reasonable doubt.
Research demonstrates that jurors do not always follow these instructions and
sometimes fail to comprehend them. Some argue that the instructions should be given
at both the beginning and end of the trial.
Aggravating and Mitigating Factors
In capital cases, jurors must decide whether there are aggravating or mitigating
factors. Sometimes jurors do not understand the difference between the two.
Aggravating Factors
An aggravating factor goes against the defendant and is used to support the death
penalty. This means that the defendant has acted in a way (beyond the act of
murder) that warrants execution. Aggravating factors might include torturing the
victim, planning the murder in advance, and killing the victim for money.
Mitigating Factors
Mitigating factors weigh in favor of the defendant and are used to eliminate the
death penalty in favor of a life sentence. A mitigating factor implies that the
defendant had some reason beyond his or her control to commit the murder.
Mitigating factors might include the defendant’s childhood abuse or evidence that
the crime was committed because of significant emotion, human compassion, severe
need, or under significant coercion or provocation.
Jurors Decide
Jurors’ inferences often depend on their background, and they have a tendency to
draw from their own experiences when making decisions. The Story Model is a detailed
theory of how jurors make decisions. Learn more about the four "certainty principles"
governing a juror's decisions.
Goodness of Fit
How well do the elements of the story match the elements of the verdict choices?
Coverage
How well does the story explain the evidence?
coherence
Are the parts of the story internally consistent? Is the story plausible; that is, does it
fit with the juror’s knowledge of what happens in the real world?
Uniqueness
Is the story the best explanation of events? Or are there other accounts that explain
the evidence just as well or better?
How Do Jurors Affect the Outcome of a Trial?
The jury reaches a verdict after great deliberation and perhaps some unpleasant group
dynamics. The decision must be unanimous, and if the jury returns a guilty verdict,
the defense can request that individual jurors be polled to ensure the jury’s unanimity.
In approximately 5% of cases, the jury will not be able to reach a verdict, and the
judge will declare a mistrial(A trial that is stopped by the judge because an
unanticipated problem occurred that could prevent the accused from getting a fair
trial. The defendant can be tried again in a new trial.). Mistrials can also occur because
of the death of a key party, jury deadlock, or juror misconduct. The defendant can
then be retried in a new trial if the prosecutor wishes to do so. Jury
nullification(Refers to juries returning a verdict that is inconsistent with the
evidence; in essence nullifying the law.) occurs when the jury returns a verdict that
is clearly inconsistent with the evidence presented. In these cases, the jurors decided
to take the law into their own hands. Juries have the power to nullify; that is, they
can apply the law or interpret the law in specific circumstances. This is a significant
controversy. Jury nullification has both proponents and opponents. Fortunately, it is
not often seen in courts, although it might be seen more with the newer laws
mandating sentencing.
Consider This
If a jury refuses to apply the law or interprets the law uniquely in a specific
circumstance, is this actually the jury’s role as the conscience of a community, or is it
a problematic and possibly dangerous extension of the jury’s power? What do you
think? Which side of this argument is more convincing to you?
Aggravating factors
are those that weigh in favor of the death sentence; for example, if the victim was
tortured before death.
Mitigating factors
are those that weigh in favor of giving a life sentence; for example, the defendant’s
history of being abused during childhood.
This statement is true. The jury is expected to process all information accurately and
completely.
The four certainty principles governing a juror’s choice, according to the Story Model,
include: goodness of fit, coverage, coherence, and uniqueness.
Once the closing statements have commenced, Hannah and her fellow jurors consider
the evidence. A number of witnesses watched the defendant rob the bank at gunpoint
and shoot two bank employees. The jury must also consider mitigating factors,
including the defendant’s troubled childhood filled with violence and his lack of
financial resources. Given the evidence, they also need to consider the aggravating
factors, including the unnecessary violence involved in the robbery. In this case, the
jury decides unanimously on the penalty of armed robbery resulting in serious bodily
injury for the defendant, earning the defendant twenty years of jail time.
Summary
Ellen, like most people summoned for jury duty, is not familiar with the legal
terminology and general proceedings inside a courtroom. The processes of jury
decision making are supplemented by the judge, who gives jury members specific
instructions about what must be done to determine if the defendant is innocent or
guilty.
The prosecution has to prove beyond a reasonable doubt that the defendant is guilty.
If the prosecution is able to provide reliable witnesses that can recount the exact
events of the crime, the ruling for the case is much easier. Once the jurors deliberate,
they make their decision and present their verdict to the judge. Once the verdict has
been reached, the jurors have finished their duty as members of the jury and the
judge pronounces sentencing.
Jury deliberations are known as the black box phase of the criminal process.
Evidence that indirectly proves a fact is called circumstantial evidence.
MODULE 10
Overview
When you drive past the exercise yard of a correctional institution or prison, do you
ever wonder how the individuals who are serving their time ended up there? These
inmates may have committed a wide variety of crimes that led them to end up at this
facility. They all will serve their time depending on what the judge decides is an
appropriate penalty for the crime committed. Not all crimes—even crimes that look
incredibly similar—are created equal.
Fran and Sarah are both serving fifteen years in prison for felony charges, but Fran is
serving her time for drug trafficking, and Sarah is serving her time for murder in the
second degree. Some may argue that the severity of the sentencing should be
different for each of these individual crimes, but during the trial or plea bargaining
stages of their cases, each of the prosecuting and defending attorneys for these two
women had the opportunity to justify lessening or increasing the severity of their
sentences. Although one crime may seem less severe than the other, previous arrests,
the person’s demeanor, the person’s mental stability, or other mitigating factors could
have contributed to the increase or decrease in sentencing.
“Punishment” is the concept of what we do with a convicted criminal. What is the
appropriate punishment for an individual crime? Modern society is steeped in the
philosophies that guide sentencing or, taking the old verbiage, “an eye for an eye.”
The theory of punishment takes into account the desirable objectives and a strong
rationale that is the backbone of the criminal justice sentencing system.
Introduction
Inside the Federal Correctional Institution building on Terminal Island in California,
two inmates are serving out their sentences. One is a 35-year-old man named Garrett
who is serving 25 years in prison for a first-degree murder after having killed a man
during a bar fight. Ben, a 47-year-old man, is serving 22 months in prison for a drunkdriving incident that killed the driver of another car.
Ben and Garrett have both been the cause of death for two separate individuals, but
they are serving very different sentences for their crimes. According to retributive
justice, sentencing discretion dictates that the punishment of these two individuals
must fit the crime committed. The laws of the state and philosophical ideas guide the
appropriate punishment for Ben and Garrett’s crimes.
Discretion in Sentencing
Discretion is when an individual has the power and ability to act on his or her judgment or
beliefs. Discretion requires limits. If the players in the judicial system do not work within
accepted limits, the outcome of a trial may be overturned in a higher court. Discretion plays a
role in every aspect of our justice system:
Select each item to learn more.
Police
The police use discretion when deciding whom to pursue for questioning or arrest.
Prosecutors
Prosecutors use discretion when deciding whether to pursue a case and how to proceed with a
case, including plea bargaining.
Defense Attorneys
Defense attorneys use discretion when deciding how to defend their clients and when plea
bargaining.
Judges
Judges use discretion when running trials.
Juries
Juries use discretion when deliberating and reaching a verdict.
Sentencing Limitations
Discretion also plays a role in the criminal justice system when it is used to determine
penalties. The following are the limitations put in place during the sentencing process:
Select each item to learn more.
Constitutional
The U.S. Constitution states that the penalties imposed cannot be “cruel or unusual.” In the
Eighth Amendment, the U.S. Supreme Court has interpreted this statement to mean that the
justice system cannot torture or be brutal to any U.S. citizens, even those that have been
convicted of crimes.
It has been further interpreted to mean that the severity of the punishment must correspond to
the severity of the crime. However, these interpretations do not answer some critical
questions: What defines cruel and unusual punishment? Is prison overcrowding cruel? Is
capital punishment cruel? Should white-collar criminals be punished in maximum-security
prisons with potentially hardened and vicious inmates? These and other questions continue to
be debated.
Federal and State Systems
As we know, the U.S. Constitution is the supreme law of the United States. In the
United States, power is shared between the federal and state governments.
However, state and federal courts sentence violators differently.
State:
Each state uses State Commission on Criminal Sentencing Policies. These are
guidelines that outline the procedures for sentencing criminals.
 For example, the states follow the guidelines for mandatory maximum and
minimum sentences outlined in these policies.
Federal:



Federal courts use the U.S. Code and the Federal Sentencing Guidelines to
monitor and uniformly sentence individuals.
The U.S. Code and Federal Sentencing Guidelines lead a federal judge through
the sentencing process.
Criminal Statutes
Criminal statutes limit sentencing agents by listing the potential penalties for crimes.
Typically, these statutes describe potential penalties in terms of ranges of prison
terms or fines.
Judges must work within these limits when they sentence convicted criminals. For
example, a judge cannot sentence a burglar to life in prison if the statutes say that
the crime of burglary has a penalty of two to five years in prison.
Sentencing Laws
Compulsory sentencing laws put in place by legislatures can mandate minimum
sentences and also narrow judges’ discretion and sentence enhancements.
Mandatory sentencing laws require judges to impose a specified sentence for specific
crimes. In certain circumstances, sentence enhancements are also mandated.
For example, in some states, additional penalties are imposed on a drunk driver if
the driver has a prior record of drunk driving, if there was a child in the car during
the offense, if the driver’s blood alcohol level was higher than a specific amount, or
if the driver caused property damage or injured someone.
Public
Society plays a big role in determining a sentence. What does the public want?
Voters have a say in the punishment of crimes, although indirectly. Voters elect and
reelect legislators and judges. Even appointed judges must support the desires of
the communities they serve to retain their positions.
For example, states choose whether to allow the death penalty. In 2006, the
governor of Oklahoma expanded eligibility of the death penalty to repeat child
molesters. This was no doubt in accordance with the wishes of the citizens of the
state.
Sentencing Philosophy
The sentencing philosophy embodies the purpose for punishing criminals. This
philosophy will often dictate what punishments are appropriate: Do states want to
use punishment as a deterrent? Do they think rehabilitation will decrease crime in
the state? Do they want to keep offenders from victimizing others by physically
restraining them or keeping them isolated?
Do they want to ensure that criminals get what they deserve and do not receive any
kind of benefit from their crimes? Do they want to ensure that the victim is
restored? The answers to these and other questions dictate the punishments judges
impose on convicted criminals.
Punishment Philosophies
The following are philosophies regarding types of and reasons for punishment:
Select each item to learn more.
Deterrence
The purpose of punishment is to prevent crime by convincing individuals (often by scaring
them) not to commit crimes by showing them that they or others have been punished for
violating a law. Specific deterrence{Specific deterrence (also known as individual
deterrence) occurs when criminals are prevented from committing future crimes
because they have been punished and do not wish to be punished again. Compare to
general deterrence, which occurs when the population as a whole is deterred due to
the punishment imposed on criminals. Deterrence is one of the five sentencing
philosophies.} is when criminals are deterred from future crimes because they have already
been punished. General deterrence(General deterrence takes place when the
community in general (as opposed to specifically punished criminals) are deterred
from criminal acts because they know criminals are punished and they do not wish
to be punished. Compare to specific deterrence, which occurs when criminals
themselves are prevented from committing future crimes because they have been
punished and do not wish to be punished again. Deterrence is one of the five
sentencing philosophies.) is when potential criminals are deterred because they know
criminals are punished.
Jury Deliberation
A jury must deliberate the facts, information, and evidence that have been
presented to it throughout the trial to determine a verdict of guilty or not guilty. The
deliberation process weighs the evidence and information presented, and the verdict
is decided through a vote. In some criminal cases, a jury can deliberate both the
verdict and the appropriate sentence for a crime.
Rehabilitation
The purpose of punishment is to end criminal behavior by “curing” offenders of their
criminality. Some jail systems try to teach criminals new trades and help them find a
source of stability in their lives. However, if some criminals do not view their
activities as crime, this type of punishment will not be effective.
Incapacitation
The purpose of punishment is to physically restrain offenders from victimizing
others. These criminals are isolated from the rest of society. This is also known
as incarceration.
Retribution
The purpose of punishment is for victims or their families to exact vengeance
against the individuals who caused them harm. Retribution is an “eye for an eye”
version of justice.
Restorative Justice
In this philosophy, the victim is “restored” through restitution in the form of money
or service, rather than punishing offenders.
The
constitution
limits the type of penalties, which cannot be “cruel or unusual.”
Each
state
follows guidelines for mandatory maximum and minimum sentences.
A
criminal statute
lists the potential penalties for crimes.
Questions like “Does this state want to use punishment as a deterrent?” and “Do
officials think rehabilitation is the way to decrease crime in this state?” are governed
by the state’s
sentencing philosophy
.
0
Remaining
Previous Next
Restorative Justice
an effort to provide restitution to the victims rather than punish the offenders
Deterrence
an effort to prevent crime by convincing or scaring individuals not to commit crimes
because they or others have been punished for violating a law
Rehabilitation
an effort to end criminal behavior by “curing” offenders of their criminality
Incapacitation
an effort to physically restrain offenders from victimizing others
Retribution
an effort to get victims vengeance against the individuals who harmed them
Review
In Ben and Garrett’s cases, many factors could increase or decrease the length of their
sentences. Perhaps it was clear that Garrett intended to kill the man in the bar fight,
whereas Ben made a poor judgment choice but did not intend to kill anyone. These,
and other factors, were taken into account, and the separate individuals may have
been given longer or shorter sentences based on their trial and the judicial system
process. The prosecution and defense used their discretion on how to pursue or defend
these cases, and different judges and juries often offer varying outcomes depending
on the case presented.
Introduction
After receiving a speeding ticket going 20 miles over the speed limit, Rose must pay
a fine. Harriet committed petty theft at her local Sears and must complete 120 hours
of community service. When John receives a DUI, he must undergo a period of
probation and meet with his probation officer monthly after undergoing a substance
abuse program. Many kinds of sanctions exist to fit the different types of crimes people
commit. The offender’s past transgressions are also taken into account when sanctions
are decided, allowing individuals to learn from mistakes while justice is served.
Financial Penalties
Before a sanction is imposed on an offender, there must be a program to facilitate it and
money to fund it. Let’s consider several types of sanctions, the first being monetary
punishment. The first type of sanction, financial penalties, consists of fines and restitution.
Select each item to learn more.
Fines
Fines are sums of money paid to the government after breaking a law.
Restitution
Restitution is money paid to the victim, usually to achieve restorative justice.
Community Service
The second type of sanction focuses on the offender giving back to society through
community service. Community service involves work without compensation for
various nonprofit or government agencies. Community service orders generally
involve finding a local program that offers volunteer opportunities, like road cleanup
programs, after-school programs, and animal shelters.
Probation
The third type of sanction allows the offender to be part of society but monitors him or her
for further violations. Offenders may be sentenced to informal or regular probation:
Select each item to learn more.
Informal Probation
Informal probation is designed to deter offenders from future involvement in crime.
Offenders are required to mail in monthly postcards to their probation officers so they can be
monitored.
Regular Probation
Regular probation involves structured supervision, which is usually in-person visits
and telephone conversations (sometimes unannounced) with the probation officer.
Probation is designed to rehabilitate offenders while allowing them to live in society.
Probation Facts
At the end of 2010, over four million men and women were on federal, state, or local
probation. It is important to note that the number of adult offenders declined by
66,700 from the previous year. Likewise, at the end of 2010, more than 4.4 million
adults moved onto or off probation. Of the survey taken, more than half the
population was white, 30% was black, and 13% was Hispanic.
Source: Bureau of Justice Statistics
The goal of probation is rehabilitation of offenders through a combination of
supervision and programming.
Custodial Services
The fourth sanction, custodial services, involves confinement or separation from
society.
incarceration
Incarceration is imprisonment in a prison or jail. Prisons State-operated (or
federally operated when discussing federal offenses) facility for incarcerating those
convicted of felonies.are state-operated facilities for those convicted of felonies. At
the end of 2005, more than two million prisoners were held in federal or state
prisons or in local jails.
Jails(County-operated facility for incarcerating those convicted of misdemeanors.
Jails also hold offenders awaiting trial and those awaiting transfer to prison. Some
variations of jail sentences include: weekend sentences (in which offenders serve
time only on the weekends), work release (in which offenders are released to work
but return to the facility each evening), and study release (in which students are
temporarily released to attend classes but return each evening). Sometimes, home
detention is used in place of jail time) are local facilities operated by counties. Jails
usually house criminals for sentences less than one year. Most jails are
overcrowded.
Home Confinement
Home confinement is “imprisonment” at home under specific guidelines. Home
detention,( A sanction in which offenders are ordered to stay in their homes in
place of incarceration in a facility.) or house arrest, is when the convicted is
monitored electronically. Typically, numerous conditions are placed on offenders who
receive home detention. These conditions help keep the community safe and ensure
compliance with the punishment.
State Prisons
Offenders who have been sentenced to state prison terms have committed the following types
of criminal offenses:
Select each item to learn more.
Violent
This offense group includes murder, manslaughter, rape, sexual assault, robbery, assault,
extortion, intimidation, criminal endangerment, and other violent offenses.
Property
This offense group includes burglary, larceny, motor vehicle theft, fraud, possession and
selling of stolen property, destruction of property, trespassing, vandalism, criminal
tampering, and other property offenses.
Drug
This offense group includes possession, manufacturing, trafficking, and other drug-related
offenses.
Public Order
This offense group includes crimes involving weapons, drunk driving, escape/flight to avoid
prosecution, court offenses, obstruction, commercialized vice, morals and decency charges,
liquor law violations, and other public-order offenses.
Creative Sanctions
Judges and officials are developing new, creative ways to punish criminals, most of which
focus on embarrassment or shame. Courts will often implement unique sanctions to punish
criminals in a way that will allow the criminals to learn from their violations. Often, a ticket
or imprisonment is not a true punishment in the eyes of the prosecutors. In some of these
cases, a judge will assign the criminal a punishment that takes his or her crime and turns it on
its head to show the criminal the true consequences of his or her actions. These punishments
can also act as an example to the surrounding community. Recently, a judge sentenced a
teenage girl to ride the bus to school every day because she had incurred repeated traffic
violations. Some reported examples of the fifth type of sanction, creative sanctions, include
the following:
Select each item to learn more.
A woman convicted of drunk driving was required to carry a placard that read, "I am a drunk driver” ou
the Neiman Marcus store where she and her friends frequently shopped.
Another drunk driver who damaged his victim’s car in an accident was required to turn over his own ca
victim until the victim’s car was repaired. This was done ceremoniously in the courtroom.
A sales clerk in a convenience store who sold cigarettes to a minor was required to pick up cigarette bu
city parks for a period of time.
Death Penalty
The sixth type of sanction, the death penalty, is the most severe punishment and is
allowed in only 33 states. There are currently five ways to execute a person, the most
common of which is lethal injection.
43 persons in 13 states were executed in 2011:
13 in Texas
5 in Ohio
2 in Oklahoma, 2 in Mississippi, and 2 in Florida
6 in Alabama
4 in Georgia and 4 in Arizona
1 in Missouri, 1 in Delaware, 1 in South Carolina, 1 in Virginia, and 1 in Idaho
Of those persons executed in 2011:









23 were white, 15 were black, and 5 were Latino
All 43 inmates were men.
All 43 inmates were executed by lethal injection.
Financial penalties
Fines and restitution
Custodial services
Confinement or separation from society
Creative sanctions
Designed to embarrass the offender
0
Remaining
<>
Probation
Officer Reister visits Melanie, a troubled youth previously arrested for shoplifting, on
a biweekly basis to complete a progress report.
Arthur must send his attending officer a post card every month so he can be kept up
to date on Arthur’s current and future activities.
State Prisons
While driving to work, Maria accidentally hit a car at the intersection. Because she
was late, she sped away from the scene before the person in the other vehicle could
see her license plate.
Byron, an apprehended drug dealer, was caught selling pot and now must serve
time.
Community Service
Matthew must assist in cleaning up a church he vandalized for the next two months.
Review
The types of sanctions assigned to offenders are intended to reflect the crime and, if
possible, rehabilitate the individual who has committed the crime. More serious crimes
involve removing these individuals from the rest of society for this rehabilitation
process. Can you imagine how many people would be in state and federal jails if every
speeding ticket led to jail time? Creating the appropriate sanction for crimes requires
a great deal of planning and government support. Without this support, John would
not be able to complete his probation and Rose would not incur legal ramifications if
she did not pay her speeding ticket fine.
Introduction
Abigail and Jennifer are neighbors. Several months ago, the two got into a heated
argument regarding their properties, and Abigail used a baseball bat to shatter the
driver’s side window of Jennifer’s car. Based on criminal punishment philosophies, the
most likely course of action in this case is for Abigail to pay an amount of money to
Jennifer to cover the cost involved in fixing the vehicle. The community service of
restorative justice would likely make Abigail consider the penalties involved the next
time she considers damaging another person’s property.
Comparing Sanctions to Punishment Philosophies
Think about which of the philosophies aligns with each of the sanctions. For example,
jail and prison are great deterrents and could also fulfill retributive goals. Judges who
adhere to a particular philosophy are more likely to choose sanctions suited to that
philosophy. The next screens will review the various sentencing options and explore
how each compares with the different punishment philosophies.
Fines
Fines can be small or very large amounts of money, depending on the offense. How do fines
support the goals of each punishment philosophy?
Select each item to learn more.
Deterrence
If the goal is deterrence, fines may work well. For small offenses, such as not picking up after
your dog in the park, avoiding a $50 fine will likely be reason enough for dog walkers to
clean up their dog’s mess.
Fines tend to work well for other minor offenses, such as traffic violations and transgressions
against city ordinances. For more serious offenses, imprisonment may be a better deterrent
than a fine.
Incapacitation
If the goal is to protect society, fines do not work well. For serious offenses, using
this penalty may even compound the problem and put society in more danger
because the offender may commit another serious crime to pay the fines he or she
has incurred.
Rehabilitation
If the goal is to rehabilitate the offender, fines are useless if an offender has a
physical or mental issue or addiction. Fines do nothing to change the offender's
behavior.
Retribution
If the goal is to take away any advantages the offender might have from the
offense, fines work well. In many cases in which the offense is not serious, fines
alone serve as a just penalty. For example, paying a fine for speeding is typically an
appropriate penalty. The speeder only pays for the offense financially. In more
serious offenses, fines may be added to other penalties, such as a prison term,
community service, or probation.
Restorative Justice
Fines go to the state or local community, not to the victims; therefore, fines do not
restore the victim of the offense. Many offenses such as traffic violations, in which
fines are typically the penalty, have no specific victim to be restored.
If the fine is in the form of restitution, however, the money goes directly to the
victim. This penalty serves restorative justice because the specific victim of the
offense is addressed.
Community Service
Community service requires the offender to do something to support, serve, or improve the
community. Let's discuss how using community service as a penalty relates to each
philosophy.
Select each item to learn more.
Deterrence
If the goal is deterrence, community service may work well. The time and effort required to
complete the community service order may be sufficient to deter the offender and others from
committing future crimes.
Incapacitation
If the goal is to protect society by incapacitating the offender, community service does not
work. Except for the specific time during which the offender is completing the service order,
he or she is not incapacitated.
Rehabilitation
If the goal is to rehabilitate the offender, community service may work. If the offender needs
to develop specific skills to become a contributing member of society or needs to change his
or her attitudes, being involved in specific work in the community may be appropriate.
Retribution
If the goal is to take away any advantages the offender might have from the offense,
community service works for less serious offenses. For example, requiring taggers (people
who paint graffiti in public places) to clean up the community’s graffiti is appropriate
punishment for the crime.
The advantages of the crime are taken away by the required cleanup. This strategy works well
for graffiti, especially if the graffiti is cleaned up immediately. Fame and notoriety is a goal
of tagging. If the graffiti is cleaned up so quickly that no one sees it, there is no benefit to the
crime.
Restorative Justice
Community service is an excellent punishment if the goal is to restore individuals or the
community. When the offender is required to work in some way to restore the victim, the
goals of this philosophy are met.
Probation
There are several types of probation: less structured informal probation, probation
requiring the offender to participate in a mandated program, and intensive supervision
probation. Let's discuss how using probation as a penalty relates to each philosophy.
Deterrence
If the goal is deterrence, probation is not a good penalty. However, the more
structured the probation, the better it may work to deter crime. Offenders do not
typically think about the probation requirements they will face if convicted for a
crime. Intensive supervision probation (ISP) may work better for criminals who have
previously committed crimes and experienced the limitations of probation. An IPS
sentence is a criminal’s commitment to the Department of Corrections.
ISP is a service that enforces accountability because the convicted criminal must
maintain regular employment, demonstrate monetary responsibility, refrain from
drug and alcohol use, perform community service work, and abstain from
participating in further crimes. As opposed to making the criminal serve time in jail,
which could potentially lead him or her back to crime, this method enables the
criminal to live a normal and potentially thriving life and by extension leads him or
her away from crime.
Incapacitation
If the goal is to protect society by incapacitating the offender, probation works by
limiting the offender's activities and requiring or prohibiting specific behaviors. For
the probation types that mandate participation in specific programs, the penalty is
appropriate if the program results in a reduction of the criminal behavior in the
future.
For example, a drug user might be mandated to attend a drug rehabilitation
program as part of probation. If the program reduces the future drug behavior of the
offender, the probation penalty worked well.
Rehabilitation
If the goal is to rehabilitate the offender, probation may work. Probation programs
that mandate the offender to participate in a behavior-changing program (such as
drug or alcohol rehabilitation or counseling for child or spousal abuse) work well as
rehabilitative sanctions.
Probation also works when the offender’s problem has the potential to recur if he or
she engages in specific activities. For example, a drunk driver may be put on
probation and, as a requirement of the probation, is prohibited from being in a bar.
Retribution
If the goal is to take away any advantages the offender might have from the
offense, more strict or structured probation is appropriate. Informal probation does
not punish the offender in this way. Probation that mandates participation in a
rehabilitation program is also not effective as retributive punishment because
rehabilitation programs are not intended as punishment but rather as helpful
activities (although many people consider mandated rehabilitation to be
punishment).
Restorative Justice
Probation works to restore victims if a requirement of the probation is to participate
in restorative justice programs.
Jail Terms and Prison Sentences
For many crimes, the only appropriate punishment is jail time or incarceration. Jail terms can
range from a few days in county jail to life imprisonment without any possibility of parole.
Let's discuss how using incarceration as a penalty relates to each philosophy.
Select each item to learn more.
Deterrence
If the goal is deterrence, the possibility of imprisonment if caught for a crime works well.
Think what would happen if an ordinary citizen could be imprisoned for 30 days for speeding
on the highway. Highway speeding statistics would no doubt be significantly reduced with
the threat of this type of punishment.
Many offenders of more serious crimes, however, may feel that they will not be caught. They
may be mentally ill or addicted to drugs and commit crimes to support habits or meet needs.
Although jail terms may be a deterrent, the offenders may still commit the crimes. Prisoners
can become victims themselves, and some prisoners can also commit crimes against the
community from within prison.
Incapacitation
If the goal is to protect the community from the offender, time in prison is an
appropriate punishment. If a serial killer is imprisoned for life, the community is safe
from him or her. When drug dealers are jailed, the community is protected from
them.
It is important to note that criminals still commit crimes in prison against other
prisoners and the community. It is also important to realize that our prison system
cannot hold all the people who commit crimes. Many criminals are released early or
are punished in different ways.
Rehabilitation
If the goal is to rehabilitate the offender, imprisoning him or her is not an effective
punishment. Most jails do not have the appropriate programs for offenders who need
help to change their behavior. In addition, change takes time and many jail terms
are short. Even if there were a program available, the short jail term would reduce
the offender's opportunity to take part in the program.
Retribution
If the goal is to take away any advantages the offender might have from the
offense, jail is an excellent sanction because it is a severe form of punishment. Even
short jail terms work as retribution. Think for a minute about how a punishment of
30 days in jail for speeding might impact your life.
How would you deal with school, work, family responsibilities, and the humiliation of
being imprisoned? The longer the prison term, the greater the punishment.
Restorative Justice
Jail does not meet the goals of restoring victims. In fact, there is no attempt to restore anyone
when the offender is imprisoned. If the offender works in prison and sends money to the
victim, some restorative justice takes place; however, the amount of money a prisoner can
make in jail is limited.
The Death Penalty
The death penalty is the ultimate punishment and is an option in some states for the most
serious offenses. Let's discuss how the death penalty relates to each philosophy.
Select each item to learn more.
Deterrence
The death penalty is an excellent deterrent for most members of society. However, many of
the offenders who commit crimes for which the death penalty is an option may have severe
psychological problems. A serial killer may not be deterred by the death penalty.
Incapacitation
The death penalty is the ultimate incapacitation punishment. It permanently protects the
community from additional crimes by executed criminals. It also protects fellow prisoners
from being victimized by these offenders.
Rehabilitation
The death penalty does nothing to rehabilitate criminals.
Retribution
The death penalty is the ultimate punishment for offenders. It reflects the ideal of lex talionis,
that is, those who kill deserve to be killed.
In the criminal justice system, the death penalty is referred to as capital punishment.
Restorative Justice
The death penalty does nothing to restore the victim or the offender. In some cases, it may
even make life more difficult for victims if they believe that the death penalty is wrong.
In
incapacitation
, the goal is to limit an offender’s activities or limiting specific activities.
Probation that promotes
rehabilitation
offers improvement resources and programs to help the offender change his or her
ways.
Intensive supervision probation is a
deterrence
used to prevent further crimes and is often more effective on those who have a past
record.
Show Your AnswersTry again
Probation is an appropriate rehabilitative punishment.
True
False
Jail terms and prison sentences may be a significant deterrent for criminals.
True
False
Jail terms and prison sentences achieve the goals of restorative justice.
True
False
The death penalty serves retributive goals of punishment.
True
False
The death penalty serves restorative goals of punishment.
True
False
Review
The punishment system that guides the kind of sanction for Abigail’s crime reflects
age-old philosophies that are instituted to keep people from committing crimes or, in
Abigail’s case, repeating similar offenses. When the state wants to keep people safe
on a busy highway, police officers patrol the area, giving warnings and fines to people
who do not obey the speed limits. On that same highway, signs warn people of the
fines they could incur if they are caught dumping trash on the road. Fines and
retributive justice are only a few of the many sanctions that reflect the level of crime
committed and the type of justice that must be served.
Summary
The death penalty for a serial rapist and a fine for someone going 15 miles over the
speed limit are very different kinds of punishments, but their purpose in the criminal
justice system is the same. Punishments are meant to rehabilitate those that can be
reintroduced into society, prevent others from committing similar crimes, and keep
those who have committed crimes and are unlikely to be rehabilitated away from
society. While not all sanctions are appropriately matched with their crimes, they do
ensure that a drunk driver who has killed another person while intoxicated does not
serve life in prison and a man who has committed murder in the first degree does not
walk away with a small fine and no prison time at all.
MODULE 11
Jail is a(n) Excellent sanction if retribution is the goal.
On November 29th, 2011, Michael Jackson’s personal physician, Dr. Conrad Murray,
was sentenced to a maximum of four years of incarceration after a guilty charge of
involuntary manslaughter of the pop superstar on June 25th, 2009. Judge Michael
Pastor presided over the case, which garnered a great deal of media attention from
start to finish as a result of the death of the pop icon. Judge Pastor chose the penalty
administered to Conrad Murray, and the aim in this case was to administer a penalty
that was appropriate for the offender. Judge Pastor was assigned a difficult task of
deciding the punishment for Conrad Murray’s crime. The presentence investigation
report played an instrumental role in this decision. Conrad Murray’s crime was unique,
and, therefore, the procedure of his sentencing was also unique. Judge Pastor’s job
was to assign the appropriate punishment to the defendant, which can often be a
difficult task, especially for such a high-profile case.
Many believe that high-profile cases that draw a great deal of media attention, such
as Conrad Murray’s, are treated differently. Some believe that these celebrity cases
allow the defendant to face less harsh punishments for their crimes, while others
believe the punishments are too harsh and that these individuals are often unable to
use plea bargaining in their cases. Needless to say, sentencing is the most nerve
wracking time for all parties involved. Understanding how judges determine the
sentencing for a convicted criminal is one of the most important parts of the trial
proceedings.
Introduction
Sentencing is often considered the most important phase for the convicted client.
Imagine knowing that you have been found guilty for your crimes, but you do not
know the full extent to which you will be punished under the law. This could mean
sentence differences of years in prison. Judges are fully aware of the importance of
sentencing, which is why they often compile presentence reports. These reports
require a thorough investigation of the case and present the case from many sides so
that the judge is able to institute the fairest sentence under the law.
PSI Report
Sentencing begins with a presentence investigation (PSI) report(Also called
a PSI, this report contains a variety of information about the offender and his or her
offense for a judge to consider when imposing sentence. Written by a probation
officer, the report also includes the author's professional opinion regarding an
appropriate penalty.), which is filed by a probation officer. It contains a variety of
information about the offender and his or her offense and also presents a professional opinion
concerning an appropriate penalty. PSI reports are not created for every case, especially in
lower courts. Some judges request them when they feel that they do not have enough
information to make a just sentence.
The PSI report is filled out after a defendant is convicted or after he or she has decided to
plead guilty. There are four reasons why the PSI report is filled out at this time:
Select each item to learn more.
The report requires interviews with friends, family, and employers, which might be an invasion of priva
the defendant is acquitted.
A defendant will not admit guilt and cooperate with his or her probation officer to complete the report i
she has pled not guilty.
It could be prejudicial to the judge or jury if the PSI is admitted into court before the sentencing.
If the defendant is acquitted, a PSI report would be a waste of probation resources.
PSI Report Contents
The PSI report contains the following information:





A one-page summary of the offender’s demographic characteristics
Information regarding the defendant’s past arrests and convictions
The official version of the offense, gathered from police reports; the defendant’s
version of the offense; statements from victims and police; and any mitigating
or aggravating circumstances
The case history of the defendant (that is, his or her family history, education,
employment, mental stability, and so on)
The sentencing recommendation made by the probation officer
List the components of a PSI.
The PSI report contains the following information:



a one-page summary of the offender’s demographic characteristics
information regarding the defendant’s past arrests and convictions
the official version of the offense, gathered from police reports; the defendant’s
version of the offense; statements from victims and police; and any mitigating or
aggravating circumstances
 the case history of the defendant (that is, his or her family history, education,
employment, mental stability, and so on)
 the sentencing recommendation made by the probation officer
PSI reports do not have to be created for every case, especially for those in lower courts.
This statement is true. PSI reports are filled out only after a defendant is convicted or
pleads guilty of a crime.
This statement is true. PSI reports require interviews with friends, family, and employers
in affiliation with the defendant.
Review
Presentence reports are useful for judges. They guide the harshness of their
sentencing when judges believe that they do not have enough information to deliver
a sentence that is appropriate for the crime. Although some judges choose not to use
presentence reports in certain cases, they are useful tools that bring together the
offender’s demographic, the offender’s prior arrests, and recommendations from the
probation officer.
Introduction
On November 7th, 2011, Michael Jackson’s personal physician, Conrad Murray, was
found guilty of involuntary manslaughter, but it would be almost three weeks before
Judge Pastor would set sentencing. Before the sentence hearing, input from character
witnesses and other people involved in the crime or related to the incident provided
valuable information to help the judge determine the best form of punishment for the
criminal. These character witnesses spoke about the character of Michael Jackson and
Conrad Murray. Only after all the information was given would the judge determine
the most appropriate sentence.
The Sentencing Hearing
During the sentencing hearing, sentencing agents, either judges or juries, may hear
from character witnesses (such as the defendant’s family or friends) and from victims.
These testimonies are not about the events of the crime; they are a chance for the
speakers to express how they feel about the defendant or his or her actions. The
victim can make a victim impact statement (VIS) in written form, orally, or by using
another creative method. This statement enables a victim—the person most affected
by the crime—to make his or her voice heard during the decision-making process.
The defendant may also speak at the hearing, using his or her right to allocution.(
The defendant's right to speak at his or her sentencing hearing.) Judges usually
impose the sentence they previously determined for the case, but defendants can try
to demonstrate mitigating circumstances that may change the sentence. Unlike during
the trial, when the burden of proof rests with the prosecution, the burden of proof in
a sentencing hearing rests with the defendant to prove any factors that could change
the sentence.
Comparing Sentencing Hearings and Trials
Let’s discuss the differences between sentencing hearings and trials:
Select each item to learn more.
The sentencing hearing is used to establish penalty, not guilt, and is intended to give as much informati
possible to the sentencing judge or jury deciding the sentence.
The defendant has a right to a trial by jury, but he or she does not have a right to be sentenced by a jury
Therefore, judges may overrule sentences imposed by juries and impose a more lenient or more severe
sentence.
Defendants have no right to cross-examine a witness in a sentencing hearing.
Evidence that was excluded at trial may be used at a sentencing hearing because it must meet only the c
standard of preponderance of evidence.
Comparing Trial Phase and Sentencing Phase
It is important to understand the difference between the trial phase and sentencing phase:
Select each item to learn more.
Trial Phase
In a trial phase, the jury is looking to convict the defendant and in the sentencing phase,
hearsay evidence is allowed.
Sentencing Phase
In the sentencing phase, the defense is looking to mitigate the punishment and the state is
looking to offer aggravating evidence to show the defendant needs to go to prison.
Capital Murder
Research the trial and sentencing phases for capital murder. What happens in each phase?
An important difference between a sentencing hearing and a trial is that the
burden of proof
at a sentencing hearing is on the
defendant
as opposed to being on the
prosecution
at a trial.
It is during the sentencing phase that the defense looks to mitigate the punishment and
the state looks to offer aggravating evidence to show the defendant needs to go to
prison.
The right to allocution pertains to the defendant being permitted to speak at his or her
own sentencing hearing.
Review
Although Conrad Murray was given a trial by jury, after the jury determines if he is
guilty or not guilty, it is up to the judge to decide the sentencing. Sentencing hearings
are much different than trials, as some evidence that must be excluded during the
trail can be used in sentencing. Conrad Murray’s sentencing was quite different from
his trial, as his sentencing did not determine his guilt but instead how he would be
penalized for his crime. Consider other high profile cases such as Casey Anthony. On
July 7th, 2011, the sentencing hearing was an extremely emotional affair regarding
the death of her young daughter.
Introduction
Joe and Frank have committed the same crime. In separate, unrelated incidents, both
men have been charged with the felony of grand theft auto and found guilty by their
juries. When the two men are given their sentences, they are both charged with a
felony conviction. However, Joe was sentenced to two years in jail, and Frank was
sentenced to seven years. Although their crimes may appear the same, Joe and
Frank’s situations were very different, and their sentencing was influenced by a
number of external factors, such as previous convictions and how the theft was carried
out.
Factors that Influence Sentencing
Many factors influence sentencing, such as the seriousness of the crime for which the
offender is convicted. Some research has found that bias exists in sentencing, while other
research demonstrates that sentences are based entirely on the legal merits of the case. Most
factors that influence sentencing can be divided into three categories:
Select each item to learn more.
Legal factors
Extralegal factors
Organizational factors
Legal Factors that Influence Sentencing
There are some common legal factors that influence the sentencing of an offender,
including the following:







Offenders with a prior record who have committed serious offenses usually
receive harsher sentences than first-time offenders.
If there are mitigating factors (youth offender or reduced mental capacity), the
severity of the sentence may be lessened.
If there are aggravating circumstances (a gun is used), the sentence may be
made more severe.
The recommendation made by the probation officer in the presentence
investigation report is considered.
If the offender is a juvenile, his or her sentence might be different from an adult
offender’s for the same crime. In most states, juveniles cannot receive the death
penalty or be imprisoned beyond the age at which they are considered adults.
Those facing more charges (aggravated assault, murder, and robbery) tend to
receive harsher sentences.
If a plea bargain was reached in the case, judges rarely deviate from the agreedupon punishment.
Extralegal Factors that Influence Sentencing
Extralegal factors are factors that have legally impermissible influences on legal decisions,
such as charges, verdicts, and sentences. These factors are legally impermissible because they
suggest that discrimination influences the sentencing decision. This goes against what we, as
a society, consider fair and just. The following are examples of extralegal factors:
Select each item to learn more.
Race/Ethnicity
One of the most controversial and common extralegal factors is race/ethnicity. Over the
years, studies have shown that blacks receive harsher sentences than whites. But some
researchers dismiss the idea that race plays a role in sentencing, arguing that blacks receive
harsher penalties because they commit more serious crimes than whites do. Still, it has been
shown that some judges are influenced by race.
Gender
In addition to race/ethnicity, research shows that women tend to get more lenient
sentences than men. Although this is generally true, women who commit very
serious crimes tend to receive the same sentences as males. The reason for more
lenient sentences may be that, as caregivers of families, women and men alike tend
to receive more lenient sentences when they have familial responsibilities.
Extralegal Factor: Socioeconomic Status
The following extralegal factors that influence sentencing are related to socioeconomic
status:
Socioeconomic Status
Select each item to learn more.
Class
Another common factor in sentencing is socioeconomic status. Often, poor criminals receive
harsher sentences than criminals from the middle and upper classes. This could indicate that
society perceives the poor as dangerous people, whereas judges in white-collar cases are
more likely to empathize with the offenders and make their sentences more lenient.
Personal Appearance
Along these same lines, the personal appearance of an offender in court can influence the
sentence he or she receives. If the offender looks put-together, is wearing nice dress clothes,
and appears polite and remorseful, his or her sentence may be more lenient than that of an
offender who shows up to court looking dirty and unshaven.
Social Connections
In addition, those with connections or who have a high standing in society may receive a
lesser sentence.
Extralegal Factor: Motivation
An offender’s motivation to commit a crime is technically an extralegal factor.
Remember that a trial is built around the intent(One's plans or purposes. May differ
from one's motivation (i.e., the goal underlying one's purposeful actions). For
example, one's motivation in some thefts could be to feed one's family, but the intent
is still to steal.) of a person’s actions rather than the motivation(The goals behind
one's plans (such as one's motivation in stealing some items could be to prevent those
items from falling into the hands of minors or some other group, or one's motivation
in vandalism could be to protest the fur trade).) behind those actions. In a case where
a mother steals food to feed her children, her intent is to steal food but her motivation
is to acquire food for her children.
The motivation doesn’t matter in the trial, but it can be considered when the sentence
is being decided. To continue the example, the mother was stealing food to feed her
children. Although she committed a crime by stealing, her motivation was to take care
of her children. Her sentence may be more lenient than the sentence for a college kid
who steals from a convenience store to fund a gambling debt.
Extralegal Factor: Community
The following extralegal factors that influence sentencing are related to the offender’s
community:
Select each item to learn more.
Judges may consider different punishment options if the community’s prisons or jails are overcrowded.
Media presence in the audience may alter sentencing, especially in cases that are heavily covered by th
media.
Community attitudes toward crime and criminals may affect sentencing, especially if the case is tried in
area.
In homogenous areas, community attitudes toward race and socioeconomic status may lead to unfair
sentences.
Extralegal Factor: Judicial Profile
Judges are affected by many factors that may influence their sentencing decisions:
Select each item to learn more.
Gender
The gender of the judge may make a difference (female judges are usually harder on female
offenders than male judges are).
Race
The race of the judge may influence how he or she issues sentences to offenders of the same
race or of a different race.
Personal Sentiments
If the judge feels strongly about a certain crime (such as drunk driving or child abuse), the
judge may be more likely to issue harsher sentences to these types of offenders.
Age, Religion, and Selection Process
The judge’s age, his or her religion, and whether he or she was appointed or elected also
influence the judge’s decisions. It is important to realize that the judge’s characteristics and
values are inseparable from the sentences he or she issues.
Organizational Factors that Influence Sentencing
Organizational factors that affect sentencing are the people and events of the
courtroom. These factors pertain primarily to the courtroom work group, which
consists of the judge, prosecutor, and defense attorney. If these three people are
connected and have a good relationship, they can more efficiently deal with cases.
Public defenders, with their high caseloads, generally have trouble getting lenient
sentences or acquittals. However, if they have good relationships with the judge and
prosecutor, they are more likely to secure lighter sentences, especially if they are
punctual, do everything the judge asks, and do not take longer than necessary in
proving the best defense for their client.
Defendants who plead guilty are more likely to get a lighter sentence than those who
plead not guilty. Plea bargaining may have a huge impact on the final sentence, and
sometimes defendants are punished for the time they take in the courtroom. Research
shows that defendants’ sentences may grow longer the longer they are in the
courtroom.
Some Comments on Organizational Factors
Select this link to view the full version of the image
Legal factors
The recommendation made by the probation officer in the presentence investigation
report is considered.
Extralegal factors
In a case where a mother steals food to feed her children, her intent is to steal food,
but her motivation is to acquire food for her children.
Organizational factors
If a public defender has a good relationship with the judge and prosecutor, he or
she is more likely to secure lighter sentences.
0
Remaining
<>
Legal Factors
Wade has a prior record for having committed serious offenses in the past.
Probation Officer McKenna reports that the defendant has maintained a clean record
for the past seven months.
Extralegal Factors
The defendant is Mary Cook, a middle-class house wife, accused of domestically
abusing her husband Richard Cook, a known business CEO.
Tammy was caught buying prescription medicines illegally for her sick elderly father
who does not have health insurance.
Organizational Factors
Attorney Regina Brookes shows respect while supporting facts when crossexamining witnesses.
Defense attorney David Perry is always punctual.
Review
Let’s take a closer look at Joe and Frank’s separate cases of grand theft auto. Joe was
a passenger in this incident and has no previous conviction charges. His friend
hotwired a stranger’s vehicle, which was later abandoned on the side of the road. In
Frank’s incident, he used a gun to forcibly remove a driver from her car. Frank also
has a previous felony charge for a related grand theft auto incident. It would be
impractical and impossible for the judge to determine sentencing without looking at
Joe and Frank’s communities, pasts, and many other factors that contributed to their
crimes.
Summary
If you are found guilty of a criminal offense by a judge or jury, it does not mean that
the sentence you are given is entirely rigid. Imagine that you commit arson and are
found guilty of the crime. If you are a fourteen-year-old that lit a neighbor’s barn on
fire because your peers pressured you to do so, your punishment will be reevaluated
because it was not premeditated and you are a juvenile. If, however, you light a home
on fire with the intent to end the lives of the people inside, your punishment is likely
to be much more severe.
A judge’s sentencing in a case of arson takes into account a number of legal factors.
The severity of the crime committed, the aggravating circumstances, the prior record,
and plea bargains all play an instrumental role in this decision. Although extralegal
factors—such as if the arsonist is a young, white affluent female or a middle-aged,
poor black male—should not play a role in these cases, they often can alter the
sentencing depending on the judge’s background and bias.
MODULE 12
Overview
In the case of U.S. v. Funkhouser, a man named Robert Funkhouser was found guilty
of tax evasion by a panel of jurors in June of 1952. He was sentenced to a year in
prison and fined $25,000. On that day, Robert Funkhouser signed a paper and was
witnessed by his attorney, G. C. A. Anderson. This paper certified that Funkhouser did
not wish to appeal the judgment given to him by the court and that he wished to begin
serving his sentence at once. Almost two weeks later, Robert Funkhouser filed a
motion to enlarge the time for his appeal. This motion was heard and denied by the
judge in his case, Judge Chestnut, and the defendant then served his sentence until
he was paroled and paid his fine of $25,000.
Robert Funkhouser’s case did not end there. In the fall of 1959, he filed three motions
in the court. The first was to have the courts “correct the illegal sentence,” the second
to “review record and void illegal sentence,” and the third to “examine the record of
the proceedings before the grand jury.” These motions by Funkhouser to have his
case reexamined were denied, and he then appealed. Essentially, Funkhouser believed
he had enough information to reopen his case and obtain a verdict of “not guilty”
based on new evidence regarding his trial.
The U.S. Court of Appeals Circuit Courts hears appeals of civil or criminal cases tried
in the U.S. District Courts. The Court of Appeals would not retry or make decisions
about Robert Funkhouser’s guilt, but they would review the written records from the
trial court to determine if the reason for the appeal was valid and how the problem
should be addressed.
Introduction
Julie was shopping in her local Sears and purchased a large number of merchandise.
As Julie walked out of the store, the shoplifting alarm system at the door of the store
went off, and Julie was asked to open her bags. Once opened, the store manager
discovered that an expensive necklace was in the bag but not paid for.
Some months later, in court, Julie is convicted of a petty theft misdemeanor, despite
her firm denial of her guilt. A panel of jurors finds Julie guilty, and she is convicted.
Julie must pay a fine and serve community service. Later, Julie discovers that a
member of the loss prevention team had framed many similar customers in these
cases and was even caught stealing himself. This member of the team was the only
witness to Julie’s case, and his credibility was the deciding factor in the guilty verdict
of Julie’s case. Julie wishes to appeal her case based on this evidence, but she doesn’t
know where to begin.
Importance of Appeals
Let’s examine some of the reasons why appeals are important:
Select each item to learn more.
Checks and Balances
The appeals process is one of the checks and balances inherent in our justice system. The
process of appeals is designed to ensure that defendants have received due process
throughout the criminal justice system.
Shaping Laws
Appeals are also part of the way in which particular areas of the law are shaped. New issues
arise over time and usually become the subject of appeals. The decisions of an appellate court
serve as precedent for all lower courts in its jurisdiction. These decisions also serve as guides
for other appellate court decisions.
Connecting Theory and Practice
Courts are criticized as not being suitable places for policymaking. Therefore, appellate
decisions serve as a bridge between legal theory and practice, a means of translating abstract
concepts into concrete policies.
Judicial Review
The appellate courts have the responsibility to review decisions of government officials
in the legislature, the executive branch, and the lower courts. This responsibility is
given to appellate courts through a power called judicial review.( This power allows
the U.S. Supreme Court and the supreme courts of each state to review legislation,
court decisions, and executive acts that are challenged in court in order to determine
their constitutionality.)
Judicial review allows the U.S. Supreme Court and state supreme courts to review
legislation, court decisions, and executive acts that are challenged in court. These
courts are responsible for determining the constitutionality of cases brought before
them.
Court Hierarchy
Courts are arranged in a hierarchy that determines the jurisdiction of each court in relation to
other courts:
Select each item to learn more.
Supreme Courts
Supreme courts on the state level pass down legally binding decisions to lower state courts
(appellate and trial).
The decisions of higher federal courts are binding on lower federal courts, and decisions
about constitutional issues are usually binding on state courts. The U.S. Supreme Court is the
ultimate authority on constitutional matters.
State Courts
The decisions of one state court do not bind the decisions of courts in other states.
Lower Appellate Courts
If a defendant wants to appeal a decision made by a trial court, he or she submits
the request to a lower appellate court. Appeals must move up the ladder of courts;
they cannot skip levels. The only time a state court can appeal to a federal court is
when there is an issue that deals with a constitutional right.
Define judicial review. Why is it important?
The appellate courts have the responsibility to review decisions of government officials in
the legislature, the executive branch, and the lower courts. This responsibility is given to
appellate courts through a power called judicial review.
Judicial review allows the U.S. Supreme Court and state supreme courts to review
legislation, court decisions, and executive acts that are challenged in court. These courts
are responsible for determining the constitutionality of cases brought before them.
The power of
appellate courts
to review legislation, court decisions, and executive acts that are challenged in
court to determine
constitutionality
is known as
judicial review
. Review
How should Julie begin the appeals process for her case? First, she must be sure that
she accommodates her jurisdiction’s time-frame so that she does not lose the right to
her appeal. Julie’s attorney then helps her file a formal notice of appeal to the court.
From here, Julie requests trial transcripts, and then a brief of the case is presented.
In this brief, the facts of the case and Julie’s reasons for appealing the case are
outlined. Other similar cases that set the precedent for this appeal are also presented.
A three-judge panel reviews the briefs of Julie’s case, and attorneys from each side
speak to these judges. The appellate court decides what type of error exists in Julie’s
case—if any—and they consider whether these errors are irrelevant to the case or are
enough cause to create legal action to remedy this error.
Introduction
If all convicted offenders were dissatisfied with the outcome of their trials, and that
was grounds enough for a case to be appealed, imagine how many cases would make
it to the appeals court. Both the prosecution and defense can appeal the court’s
decision based on various motions during the trial, and a defendant can appeal a
conviction. For the appeal to proceed, any of these three parties must have legal
grounds to do so. Perhaps errors were made in the forensic analysis of blood during a
murder case, resulting in a false conviction. Later, these errors were uncovered once
the case was completed. Is this grounds enough to have the case reviewed by the
Supreme Court? If so, a writ of certiorari is granted.
Parties That Can Appeal
Both prosecution and defense can appeal a court’s decision based on various motions
during a trial (such as a motion to exclude evidence). The defendant can appeal a
conviction, but the government cannot appeal an acquittal. For an appeal to proceed,
the appellate court(A court that does not conduct trials; rather, appellate courts
hear appeals arising fromtrials. Contrast them with trial courts, which conduct trials
to determine the facts of a case.) must determine that the appellant (the party
bringing the appeal) has the legal right to bring the case.
Appeal Process
Even after a decision is made by a court, a losing party may be able to appeal the decision
made to a federal or state court of appeals. In civil cases, any party to a case can appeal a
decision or verdict. In criminal cases, a verdict of “not guilty” is considered final and not
appealable. However, if a verdict of “guilty” is entered in a criminal case any party to the
case can appeal the decision.
The following steps are involved when a party wishes to make an appeal:
Select each item to learn more.
Notice of Appeal
A notice of appeal is the process in which a person or litigant is unsatisfied with the results of
his or her trial and seeks to appeal the decision made. The appellant is the person who
initiates the appeal. This person must file a notice of appeal, along with supporting
documents to begin the appellate review. Then, the appellee, or the person who the appeal is
filed against, will submit a brief response to the appellant’s claims.
The appellant files a notice of appeal within the specified time after the conviction.
Trial Court Record
The appellant files the trial court record (that is, the transcripts) and supporting
documents with the appellate court.
The litigant who filed the appeal must show the trial court in writing that a legal
error was made during the trial and that the error affected the decision. The court
makes a decision based on the case’s record.
Briefs
The appellant and appellee each file briefs. A brief outlines the basic facts of the
case, summarizes the argument being made by the party filing the brief, and lists
cases that serve as supporting precedents.
Arguments
In most courts, the judges will hear short oral arguments from the parties in the
case.
Appeals are decided by a panel of three judges. The appellant will present the
written legal arguments to a panel. The arguments, or the "brief," will try to
convince the court that an error was made during the trial or that the appellant was
tried unfairly. The appellee's brief will be a written statement as to why the court
was correct in its decision, and that if an error was made, it had no significant affect
on the trial’s outcome.
Decision
When the court issues a decision, it is usually accompanied by a written opinion
describing its reasoning for the decision. If the appellate court affirms a lower court’s
decision, the appellant has lost the case.
The decision made by the court of appeals is the last verdict of the case. However,
the case could be sent back to the trial court for additional hearings. Or, the parties
could send the case to the U.S. Supreme Court to have the case reviewed. The
litigant who loses his or her appeal can file for a writ of certiorari. A writ of
certiorari asks the Supreme Court to review the case.
1
The appellant files a notice of appeal.
2
The appellant files the trial court record and supporting documents.
3
The appellant and appellee file briefs.
4
Judges hear short oral arguments from the parties in the case.
5
The court makes a decision.
The litigant who files the appeal must show the trial court in writing that a legal error
was made during the trial and that the error affected the decision.
Review
A writ of certiorari is a power given to the Supreme Court to reexamine the decision
of a lower court. The Supreme Court is the highest federal court in the United States.
When John, who was convicted of a drug trafficking charge, believes he was judged
unfairly in his case, it is possible that he has grounds to have the case appealed.
However, the Supreme Court is very selective of its cases. Of the thousands of
petitions for writ of certiorari given to the Supreme Court each year, only about 100
of them will be heard. In addition, John and his attorney have to work with the courts
to prepare a number of documents, including a notice of appeal, supporting
documents—such as the trial court record—and briefs that outline the case. The judge
then hears a short oral argument and weighs the facts of John’s case for it to be
considered.
Introduction
In the United States, those who are under the age of 18 are generally tried in a
different court than adults. In this modern legal system, a crime committed by a child
or minor is treated differently than a crime committed by an adult. When a group of
10-year-old boys bully a classmate and it goes too far, the case is taken to criminal
court involving harassment charges. The court believes that these children can be
rehabilitated. Instead of going to jail, these boys are given counseling, provided
support, and held accountable for their actions in a way that allows them to be
rehabilitated.
Defining Juvenile Court
In both English and American common law systems, children under seven years of
age could not be held criminally responsible for their acts because it was believed that
they could not form criminal intent. If it could be proven that a child between seven
and fourteen years old knew right from wrong, the child could be convicted. Youths
over fourteen could be tried as adults.
Today, the age of responsibility in the United States varies from state to state, but is
not typically lower than age seven. In 1838, the doctrine of parens patriae (the state
as a parent) was instituted, meaning that the court has the power to step in and act
in the child’s and society’s best interest when a parent is unwilling or unable to control
a child. This was the basis of the first juvenile court.
Features of Juvenile Court
In 1899, Chicago’s Cook County Juvenile Court was established. Within two decades, all but
two states had established juvenile courts. Early juvenile courts had several common features:
Select each item to learn more.
They operated under the parens patriae doctrine and were considered civil rather than criminal courts.
Hearings were informal, designed only to discover the root of the child’s problem and solve the problem
Cases involved delinquency, status offenses, and instances of child neglect, abuse, or destitution.
No lawyers or juries were involved.
Hearings were closed to the public, and records were kept confidential.
Juvenile Court Jurisdiction
In most jurisdictions, the juvenile court is a subsidiary of the trial court of general
jurisdiction (where adults are tried) or another specialty court, such as a probate
court. In other jurisdictions, the juvenile court is a completely separate entity or is
under what is called family court. All juvenile courts have judges, who are also of
limited jurisdiction because they can hear only certain cases.
Juveniles Tried as Adults
In all states, certain juveniles can be tried as adults under certain circumstances:
Select each item to learn more.
Statutory Exclusion
Legislatures have passed laws that say certain juveniles who commit certain crimes will be
tried as adults. This means that once the prosecutor has decided to charge a juvenile with an
offense that has been excluded, the case must be filed in criminal court.
There is no discretion or alternative in these cases. Some states exclude only very serious
offenses, such as first-degree murder by a juvenile who is at least fifteen years old. In
Mississippi, all felonies committed by juveniles who are seventeen years old are excluded.
Some states consider age, offense, and prior record.
Judicial Waiver
Under certain circumstances, the juvenile court judge can choose to transfer the case to adult
court. The judge will consider specific criteria, such as age, offense, and prior record of
delinquency. The flexibility given to the judge varies among states. In some states, the
transfer is mandatory once the judge has determined that the juvenile has met the necessary
criteria. The criteria to transfer a case to an adult court differ from state to state.
Concurrent Jurisdiction
Both juvenile and adult courts have jurisdiction over certain cases. The prosecutor can decide
which court will hear the case. In this instance, the prosecutor, rather than the judge, has the
discretion.
Describe juvenile court jurisdiction.
In most jurisdictions, the juvenile court is a subsidiary of the trial court of general
jurisdiction (where adults are tried) or of another specialty court, such as a probate
court. In other jurisdictions, the juvenile court is a completely separate entity or is under
what is called family court. All juvenile courts have judges, who are also of limited
jurisdiction because they can hear only certain cases.
In both English and American common law, children under a certain age could not
be held criminally liable for wrongful acts.
True. It was assumed that children lacked criminal intent and could therefore not be held
accountable.
Under a statutory waiver, a juvenile court judge may choose to transfer a case to an
adult court, under certain conditions.
True
False
Review
Gabe is a 10-year-old boy who has stolen candy from his local candy shop. If the shop
owner catches Gabe, the same criminal repercussions will not apply to Gabe as would
apply to someone 10 years older. If the shop owner decides to call a police officer, the
officer needs to determine if Gabe knows the difference between right and wrong in
this case. If the criminal justice professionals can determine that Gabe did not know
that what he was doing could be punishable as a criminal offense, Gabe will probably
not be convicted. The court may also try to determine if Gabe’s parents are unwilling
or unable to take control of the child, especially if Gabe’s behaviors escalate to more
serious offenses of theft.
Review
Gabe is a 10-year-old boy who has stolen candy from his local candy shop. If the shop
owner catches Gabe, the same criminal repercussions will not apply to Gabe as would
apply to someone 10 years older. If the shop owner decides to call a police officer, the
officer needs to determine if Gabe knows the difference between right and wrong in
this case. If the criminal justice professionals can determine that Gabe did not know
that what he was doing could be punishable as a criminal offense, Gabe will probably
not be convicted. The court may also try to determine if Gabe’s parents are unwilling
or unable to take control of the child, especially if Gabe’s behaviors escalate to more
serious offenses of theft.
Introduction
The primary difference between the case of a juvenile who steals a book from a local
shop and an adult who commits the same crime revolves around the focus of the
institution of the court. In the juvenile court, rehabilitation is the focus of the court.
As an adult, due process and retribution are considered to be more important than
the individuals themselves. Adults are held more accountable for their actions. A
juvenile’s theft will be referred to as a “delinquent act” and not a “crime.” The offender
may be placed in some kind of informal probation or, if the criminal offense is more
severe, assigned to social services in an attempt to rehabilitate.
Juvenile Court Process
In addition to being part of the criminal courts system, juvenile courts are also a type of social
service. Although the process varies among jurisdictions, this diagram outlines the typical
juvenile justice process:
Select each item to learn more.
Law Enforcement, Parents, Schools, Agencies
When a juvenile is suspected of committing a crime, the case must first be referred to the
court. This referral can come from law enforcement, parents, schools, social service agencies,
or victims. Most referrals come from law enforcement agencies.
Intake
The first step in the case is intake into the juvenile justice system. The intake officer
may be a juvenile probation officer or a prosecutor. The intake officer determines
the merit or seriousness of the case.
Dismissal or Informal Resolution
If the intake officer determines that the case has no merit or that the juvenile is too young to
understand his or her actions, the intake officer can dismiss the case. The case may also be
sent to social services, or the juvenile may be placed on some kind of informal probation.
Diversion
Many jurisdictions have diversion programs for specific juveniles. For example,
juveniles with substance abuse problems may be referred to a diversion program so
their problems can be addressed.
Juvenile Court
The intake officer may decide that the available alternatives are not appropriate and
that the case should go through the more formal proceedings of juvenile court. The
intake officer files a petition and the case is handed over to the juvenile court judge.
Waiver to Adult Court
At this point, the prosecutor may decide that the case should be filed in adult court.
In other situations, a judicial waiver may allow the judge to transfer the case to
adult court, as described earlier. Some cases fall into the category of statutory
exclusion, which mandates that they be tried in adult court.
Nonadjudicated
Adjudication is the equivalent of a trial in adult court. An adjudication hearing
includes lawyers, transcripts, and sworn witnesses. Juvenile court hearings can be
extremely brief. At any point, a juvenile judge may have up to 2,000 cases pending
on the docket, so little time is spent on each case. The judge may decide not to
adjudicate the case.
Disposition (Probation, Youth Authority)
A disposition is the outcome, punishment, or mandate of the court. The juvenile court judge
has many options available. Examples include the following:











Juvenile halls (jails for youth)
Boot camps
Wilderness programs
Ranches
Group homes
Foster homes
Residential treatment centers
Outpatient treatment facilities
Youth correctional facilities
Probation
Community service
Juvenile Court Challenges
Juveniles in the justice system pose many challenges. Let’s explore briefly some of the more
significant challenges:
Select each item to learn more.
Overcrowding
According to the U.S Department of Justice, though the juvenile violent crime rate is at its
lowest level in a generation, in 2003, law enforcement agencies arrested 2.2 million persons
under age eighteen. Although the volume of delinquency cases has declined since 1997, in
2002, juvenile courts handled 1.6 million cases.
Even with the decline of juvenile crime in recent years, overcrowding is a significant
challenge to the juvenile court system. Overcrowding in the system means long delays in
processing juveniles. Many states simply move some cases to the adult criminal court. This
strategy, however, brings up the next issue: treating juveniles as adults.
Treating Juveniles as Adults
At what age does a child think like an adult? When should a child be treated as an
adult? Can children comprehend what they are doing and the consequences of their
actions at age fourteen? At sixteen? At seventeen? Does this age differ among
children? Is there a point at which the justice system can “save” a child or change
his or her behavior? If so, what is that age?
These are questions of continued debate when deciding whether to treat children as
adults for crimes they commit. The consequences are huge. Children can be put in
prison with adult criminals who will no doubt victimize them. They can even be
executed for capital offenses.
Overrepresentation of Minorities
Another challenge is the overrepresentation of minorities, especially African
Americans. Is there a disparity in juvenile case processing? It appears that there
may be in many jurisdictions.
Wide Variety of Offenders
Juvenile courts also face the problem of how to deal with the wide variety of
offenders. A small minority of offenders commit serious crimes such as rape,
homicide, and robbery. The majority of juvenile offenses are nonviolent.
More than 50% of males and 75% of females never return to juvenile court. The
question is then: Can one court system appropriately address such a wide variety of
offenders?
Role of Juvenile Court
What is the role of juvenile court? Is it rehabilitative or punitive? When you consider
that most juveniles are nonviolent and will probably grow out of their criminal
behavior, is the punitive approach appropriate?
Should we try to rehabilitate juvenile offenders and offer preventative measures
instead?
The question is then: Can a single system provide justice and effective social work?
Describe two challenges faced by today’s juvenile court systems.

Overcrowding: Even with the decline of juvenile crime in recent years,
overcrowding is a significant challenge to the juvenile court system. Overcrowding
in the system means long delays in processing juveniles. Many states simply move
some cases to the adult criminal court. This strategy, however, brings up another
issue: treating juveniles as adults.

The overall role of the juvenile courts: Should these courts be rehabilitative or
punitive? When you consider that most juveniles are nonviolent and will probably
grow out of their criminal behavior, is the punitive approach appropriate? Should
we try to rehabilitate juvenile offenders and offer preventative measures instead?
The question is then: Can a single system provide justice and effective social work?
Juveniles can sometimes be executed for capital offenses.
Review
A large majority of juvenile offenders commit nonviolent crimes, such as a petty theft
of a book from a local shop. Some juvenile offenders do commit more egregious
offenses though. Minors who commit homicide or rape may be tried in an adult court.
The difficulty in the case of juveniles is determining whether or not they can
comprehend the consequences of their actions. It becomes the difficult task of the
prosecutor to determine whether or not the juvenile who commits a violent crime will
be tried under the juvenile or adult court systems.
Summary
Appeals and the juvenile court system are important because they represent the
flexibility in the criminal court system. These unique processes are designed to ensure
that all defendants, such as Robert Funkhouser, are treated fairly under the law.
Appealing cases helps appellate courts shape the way legal systems and laws are
addressed and often helps reveal inconsistences within the law. If Funkhauser’s case
illustrates an issue that indicates the laws must be reevaluated, the appellate process
has served its purpose as a bridge between legal theory and practice. In addition, if
Funkhouser’s case had appeared in the juvenile court system, the case would function
very differently; the aim of the juvenile court system is for individual rehabilitation as
opposed to the goals of the criminal court system.