Prosecution and Defense
Wide Variety Among the States
The Prosecutor
• Little difference among the states in the selection of
prosecutor … he/she is almost always elected on a county
or district basis
• May be the most powerful office in the criminal justice
system
• Authority comes from the state, but the office is
essentially local
• Over 2,300 prosecutors offices in the US … with 78,000
staff members
• The top five percent of prosecutors’ offices serve about
half the US population
• They have enormous discretion in the conduct of their
offices
Why so much discretion?
• Legislative over-criminalization
• Need to individualize justice … facts, issues, evidence varies
• But there are limits, such as:
– Some states require Grand Jury indictment
– Juries must determine guilt beyond reasonable doubt … jury
nullification might occur if the jury doesn’t believe a case should have
been brought to court
– Jury nullification occurs when a jury returns a verdict of "Not Guilty"
despite its belief that the defendant is guilty of the violation
charged. The jury in effect nullifies a law that it believes is either
immoral or wrongly applied to the defendant whose fate that are
charged with deciding.
– Actually, few cases end up going to trial anyway
– Discretion can be misused … leading to court challenges or even
changes in sentencing laws
Defense Attorneys
• Gideon v. Wainwright (1963) … required that
the states provide attorney to indigents
• Miranda v. Arizona (1966) … required that
defendants be apprised of their rights
• Generally, a court appoint attorney is required
in all cases, felony or misdemeanor, where
imprisonment/jail time is possible
• And “effective” counsel is required … how do
we measure that?
Public Defenders
• There is a great deal of variety in how states
implement public defender programs
• About 60 percent of funding comes from the
county & 25 percent from the state
• Most states utilize:
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Public defender programs
Assigned counsel or
Contract attorneys
Among the nation’s 100 most populous counties, 90
used public defender programs, 89 used assigned
counsel, and 42 used contract attorneys
Varieties of public defenders …
• Public defender offices have a staff of salaried
attorneys … some of these are very good
• Often states use “assigned counsel” … private
attorneys chosen or appointed on a systematic or ad
hoc basis & paid from public funds … often using a
roster or rotation
• Contract attorneys are employed to handle cases on a
flat fee or total compensation basis … mostly states use
these as overloads or in case of conflicts
• There is a lot of pressure on public defenders to finish
the case quickly … low pay, high work load … might not
result in effective counsel
Juries
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Sixth Amendment to the US Constitution
Applied to the states through the “due process of law” clause of the 14th
amendment
Not all criminal prosecutions trigger the right to a jury trial … minor offenses
where the potential sentence is less than 6 months do not, for instance
The jury is a “fact finder”
Sometimes defendants forgo a jury trial and have a bench trial
Juries are to protect the defendant … often find them guilty though
In civil trials (like product liability), judges tend to favor the plaintiffs more than
juries do
Historically, juries are composed of twelve jurors … who must vote unanimously to
convict
But that is not always the case … several states use 6 or 8 member juries and do
not require unanimous verdicts in noncapital felonies
Jury selection begins with voir dire examinations … questioning jurors for
potential biases … and possibly interviewing expert witnesses …
Some are rejected “for cause” … attorneys have some “preemptory challenges”
Defendants’ Rights
• Defendants:
– Presumed innocent until proven guilty
– Safe from arrest unless there is probable cause
– Right to an attorney
– Right to a jury trial
– Right to confront witnesses/subpoena
– Right to due process/equal protection
– Punishment cannot be cruel and unusual
Victims’ Rights
• These vary among the states
• Every state has some sort of statement of
rights for victims … Some involve:
– Cash compensation
– Notice of procedural developments
– Protection from offender harm
– More attention from justice system
– May actually require conferences with prosecutor
– May allow testimony at sentencing phase
Sentencing
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In Arkansas, the jury chooses the sentence
In Texas, the judge is free to ignore the jury’s decision as to sentencing
Most states permits the judge to sentence the convicted criminal … particularly in
noncapital cases
In capital cases, juries set the sentence in a separate phase & it must be
unanimous
Discretion in sentencing varies among the states
While indeterminate sentencing was once the standard, states have move more to
determinate sentencing … more structure in sentencing
Several states have mandatory minimum sentences for certain crimes. Others
have habitual offender laws and/or “truth in sentencing laws” that require a
minimum sentence to be served
In Arkansas, a convict can earn a day of “good time” for each day served
Because prisons are overloaded, states have allowed “house arrest,” electronic
bracelets, intensive probation, halfway houses, boot camps for younger
offenders, work release programs, weekend sentencing, and treatment for
offenders.