Courts, Prosecution,
and the Defense
Overview
 General goals of the court system
 Provide for an open and impartial forum for seeking the truth
 Provide for a fair and equitable hearing using established due
process rules
 Insure that the process takes place in an atmosphere of legal
competence and objectivity
 Provide a clear legal outcome
The Importance of Courts
 Without courts (lawyers, judges), law has no legs:
the law is not self-executing
 The rights guaranteed under the Constitution
against government overreach depend on courts
being willing to protect them
 E.g., habeas corpus petitions (“produce the body”)
 E.g., can “terrorists” be imprisoned without access to
courts?
The Structure of Courts
 All court systems are hierarchies of jurisdiction
 State, federal, tribal court hierarchies
 Different powers, functions, and occupational priorities for
different courts
 Original (limited, general) and appellate (intermediate, last
resort) jurisdictions
The Informal Structure of Courts
 Each court is a system
 Judge, prosecutor, defense, clerks, probation, police form a “working
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
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group” which participates in decision-making
The court working group often seeks to “work things out” among the
participants.
The use of plea negotiations and other nonjudicial alternatives to “work
things out” is more common than a formal trial process.
The working group exists because participants need to work together
over long periods of time
The “worth of a case” is the basic working norm for informal decisionmaking
Overview (cont.)
 Courts have a heavy work load
 Differences between ideal and real (remember the wedding
cake
model)
 Discretion sometimes results in disparity
 Funding problems
 Technology as a way of dealing with heavy work loads (e.g.,
calendaring, jury pools)
The Criminal Court Process
Criticisms of the Courts
 Overcrowded dockets
 Assembly-line justice –at the lowest level of the wedding
cake
 Too many incentives to plead guilty and to plea bargain
 Too few jury trials
 Speedy trials are unattainable
A Model State Court System
The Criminal Court Process
 State courts
 Every state has its own court system
 No two are alike
 Some states still have local courts staffed by amateurs on a part
time bases (e.g. village courts in New York)
 Deal with variety of cases ranging from homicide to property
maintenance
The Criminal Court Process
(cont.)
 Courts of limited jurisdiction
 The work horses of the criminal justice system
 About 13,500 exist
 Organized at municipal or county level
 Restricted in types of cases they hear
 May be restricted to civil or criminal cases
 Dispose of minor cases – may do preliminary activities for some
felonies
 Sentencing options restricted
The Criminal Court Process
(cont.)
 Specialty courts
 Juvenile, family, and probate courts
 Courts to combat specific problems
 Drug courts, adults, and juveniles
 Mental health courts
 IRS court
The Criminal Court Process
(cont.)
 Courts of general jurisdiction
 Around 2,000 in the U.S.
 Hear serious felony cases
 Civil cases with damages over a specified amount
 Appeals from lower courts
 Review of transcript
 Trial de novo
The Criminal Court Process
(cont.)
 Appellate courts
 Each state has at least one level of appellate courts.
 Highest state court, usually called the “State Supreme Court”
 Court reconsiders a case that has been tried in order to
determine whether the measures used complied with accepted
rules of criminal procedure and were in line with constitutional
doctrines
 Appeal is not a new trial
 Can order a new trial, overturn lower court decision, or uphold
original verdict
Federal Courts
 Federal courts
 Legal basis for these courts found in Article 3, sec. 1, of U.S.
Constitution
 Jurisdiction over laws of U.S. and treaties
 Maritime jurisdiction
 Over controversies between 2 or more states
 3-tiered hierarch of court jurisdiction
 U.S. District Courts
 U.S. Courts of Appeals
 U.S. Supreme Court
The Federal Court System
Federal Courts (cont.)
 U.S. district courts
 Trial courts of the federal system
 Organized by Congress in the Judicial Act of 1789
 Jurisdiction over violations of federal law, i.e. civil rights
violations, interstate transportation of stolen vehicles and
kidnappings
 May hear inter-state lawsuits or cases where federal
government is a party to the suit
 Jurisdiction may overlap that of state courts
Federal Courts (cont.)
 U.S. courts of appeals
 Organized into 13 judicial circuits
 Hear 40,000 appeals from district courts each year
 Empowered to review federal and state appellate court
cases when there is a federal issue present
 Do not retry the case or review the facts – only matters of
procedure and substance of the law
 Current attempts to limit the right of appeal
Federal Courts (cont.)
 The U.S. Supreme Court
 Nation’s highest appellate body – court of last resort for all
cases tried in federal and state courts
 Only federal court mentioned in the Constitution
 Nine justices appointed for life (good behavior) by the
President with approval of Congress
 Court has discretion to choose which cases it will hear
Federal Courts (cont.)
 Supreme Court process
 Most appeals to Supreme Court first evaluated by clerks
working for justices
 Most cases (90 percent) are brought to the court by using a
writ of certiorari
 4 of the 9 justices must vote to hear the case
 If the Court decides to hear a case, it reviews legal briefs
and may hear oral arguments
 May decide to affirm or reverse the decision of the lower
court
 Decisions become precedent
Federal and State Court Caseloads
 State courts handle about one hundred million new cases
each year including:
 20 million civil and domestic cases
 15 million criminal cases
 2 million juvenile cases
 57 million traffic and ordinance violations
Federal and State Court Caseloads
(cont.)
 Federal courts even though smaller, are equally burdened
 Over 320,000 cases filed each year in District Courts
 Criminal cases increased 55 percent since 1994
 Circuit Courts hear more than 60,000 appeals per year
 In 1969 they heard only 10,000 appeals
Federal and State Court Caseloads
(cont.)
 Causes of court congestion
 Rapidly increasing populations outpace growth in court system
 People like to sue each other
 Aggressive attempts to lower crime rate result in more
prosecutions
 Complexity of the law and advances in technology
 Legal reform efforts may require more trials
 Frivolous lawsuits
 Lazy judges
The Jobs of Judges
 Official roles:
 Political: campaign for election (if elected); think ahead
 Administrative: manage and supervise court personnel,
resources, can have extensive control over probation officers
and court clerk
The Jobs of Judges, cont
 Legal:
 Issue warrants
 Decisions in preliminary hearings – bind over or not
 Make bail decisions
 agree to plea-bargains
 request PSIs (pre-sentence reports)
The Jobs of Judges (cont.)
 Primary duty is to oversee the trial process
 Ensures appropriate conduct
 Guides selection of juries and instructs on their roles during trial
 Settles questions of evidence and procedure – deals with motions
 Guides questioning of witnesses
 Responsible for jury instructions after case is presented
 Decides case in bench trials
 Determines the sentence (except in capital cases)
The Jobs of Judges (cont.)
 Informal roles
 Maintain good relations with court working group
 Use discretion guided by legal requirements
 Personal sense of justice in sentencing
 Worry about appeals and being overturned
 Exert influence over police and prosecutors
 Decisions may shape social policy
How to Become a Judge
 Judicial qualifications
 Qualification vary by state
 Typical qualifications are:
 Resident of the state
 Between 25 and 70 years of age
 Member of state bar licensed to practice law
 Lower courts may not require law degree
How to Become a Judge (cont.)
 Judicial selection systems
 Appointment
 Popular election
 Nonpartisan election
 Missouri Plan
 Judicial nominating commission
 Appointed by governor from commission’s list
 Retention election
The Prosecutor
 The prosecutor
 May be called district attorney, county attorney, state’s
attorney, or U.S. attorney depending on the level of
government and jurisdiction
 Responsible for representing the public in criminal trials
 Around 2,400 state court prosecutors offices
 Employ 65,000 attorneys, investigators, and support staff
Prosecutors
 Types of prosecutors
 U.S. Attorneys – appointed by the President
 Federal prosecutors are professional civil service employees
 State and county levels, attorney general, and district attorney
are chief prosecutorial officers
 Political appointees or elected
The Jobs of Prosecutors
 General duties
 Provide advice to law enforcement officers during
investigations
 Represents the state during pretrial plea negotiations,
motions, evidence, and bail hearings
 Represents the state at other hearings, criminal trials, and
appeals
 Legal advisor to county commissioners and other elected
officials
 Implementation of special programs
The Jobs of Prosecutors (cont.)
 Administrator: manage the office
 Informal: interact with working group
 Legal
 Evaluate the case file
 Decide to take the case forward or not
 Conduct the case if go forward
 Strategy and tactics
 Sentencing recommendations
Prosecutorial Discretion
 Prosecutors have a great deal of discretion
 Evaluate case files
 Strong or weak case: factual, legal, political?
 Decision Options:
 Go forward and charge the defendant to court: indictment or
information
 – dismiss case, about 50 percent of the time
 Plea bargain the case
Jobs of Prosecutors (cont.)
 May leave decision to charge someone with minor crime
primarily to police discretion
 Charge construction:
 converting facts into a legal case
 same facts can be used to construct different charges or cases
 charge construction will determine the level of punishment if
guilty
Prosecutorial Discretion (cont.)
 Legal issues influencing prosecutorial discretion on cases
 Quality of police work and amount of relevant evidence
 Legal weaknesses in the case
 Seriousness of offense
 Defendant’s prior arrest record
 Danger to community
 Victim issues influencing prosecutorial discretion
 Attitude and behavior of the victim
 Reluctance of victim to press charges
Prosecutorial Discretion (cont.)
 Extra legal/resource issues influencing prosecutorial
discretion
 Offenders’ race, gender, and ethnicity
 Cost of the prosecution to the system
 Availability of alternatives
 Interest group’s influence causes to focus on particular types of
offenses
 Fear of losing case – political ramifications
Prosecutorial Discretion (cont.)
 The role of prosecutorial discretion
 Can prevent unnecessarily rigid implementation of criminal law
 Humanize operation of criminal justice system
 Imposes professional judgments and the sense of the court
working group on the processing of cases
 Too much discretion can lead to abuse
 Prosecutors have their own perspectives
Judicial Selection Systems (cont.)
 Types of prosecutorial misconduct
 overcharging a case to be able to plea-bargain later
 making disruptive statements in court
 failure to adhere to sentence recommendations pursuant to a plea
bargain
 represented a criminal defendant currently under prosecution
 making public statements harmful to the office
 withholding evidence, non-discovery
 Knowingly using false or manufactured evidence to gain conviction
 using power in vindictive manner to punish defendants who insist on
exercising their constitutional rights
The Defense Attorney
 Integral part of adversarial system
 Required to uphold integrity of the legal profession
 Must observe and provide zealous defense within boundaries
of law
The Defense Attorney (cont.)
 Courts do not require assistance of counsel for accused in:
 Pre-indictment lineups
 Booking procedures
 Grand jury investigations
 Appeals beyond first review
 Disciplinary proceedings in correctional institutions
 Post-release revocation hearings
The Jobs of Defense Attorneys
 Roles of the defense
 Protect rights of client
 Argue for client’s side in plea bargaining and trials
 Conduct effective trial strategy, lay grounds for appeal
 Duties of defense
 How far to go to protect client?
 Ethical concerns: balancing rights of client with public
safety and justice
The Right to Counsel
 Legal services for poor people
 Gideon v.Wainwright
 Argersinger v. Hamlin
 Public defender systems
 Assigned counsel systems
 Contract systems
 Private attorneys, pro bono or hired
 Most do not practice criminal law
 Debate over effectiveness of private attorneys versus attorneys provided
by state
The Competence of Defense Attorneys
 Strickland v.Washington
 Inadequate and incompetent counsel
 Refuse to meet with client
 Fail to cross-examine witnesses
 Fail to investigate case
 Poor advice to client
 Conflict of interest between codefendants’ counsel
 Sleeping during trial
Court Administration
 Administrative Office Act, 1939
 States have been slow to apply court management principles
 All states now have some form of court administration
Court Administration (cont.)
 Computers allow courts to fulfill many functions
more efficiently
 Maintain case history and statistical reporting
 Monitor and schedule cases
 Prepare documents
 Index cases
 Issues summonses
 Notify witnesses, attorneys, and others of required appearances
 Select and notify jurors
 Prepare and administer budgets
Court Administration (cont.)
 Developing areas of court technology
 Communications
 Videoconferencing
 Evidence presentation
 Case management
 Internet utilization
 Information sharing
 Cameras in court
END