Criminal Procedure

1. Criminal Procedure PSCI 2481

2. What a “criminal” case different from a “civil” case? • A criminal case arises when the government seeks to punish an individual for an act classified as a crime by a Congress or state legislature. A civil case usually involves a dispute over rights and duties that individuals and private organizations owe to each other. • A person convicted of a crime may pay a fine, be incarcerated or both. The losing party in a civil dispute does not face jail or prison. (Although they may have to pay money damages and yield goods and property in their possession) • The standard of proof differs between criminal and civil cases. • Criminal defendants are entitled to a trial by jury while not all civil actions qualify for jury trials.

3. Attorneys “in Crime” The Prosecutor • The prosecutor (as a representative of the government), not the victim, initiates and controls the case. The Private Defense Attorney • Private defense attorneys may work for a fee or “pro bono”. • Few become famous (F. Lee Bailey, Johnnie Cochrane). Most do not. The Public Defense Attorney • In criminal cases, government-paid attorneys called “public defenders” represent defendants who cannot afford to pay for their own defense. • They resemble ADA’s (young and temporary). • Overworked and often criticized.

4. Criminal Court Basics I (The Role of the Police) • Incident (The “crime” occurs) • Allegation (Reported crime & identification of suspects) • Investigation • Arrest of suspect

5. Criminal Court Basics II • Booking of suspect (Bail or Detention) • Initial Appearance (Charge/Bail or Detention) • Preliminary Hearing (Charge/Bail or Detention) Alternative: Grand Jury Investigation & Indictment

6. Criminal Court Basics III • Arraignment (before or after 9) • Pre-Trial Activities “Discovery” Settlement (Plea Bargaining)

7. Prosecutorial Discretion I • To Charge • Evidential Criteria • Probability of conviction • Concern with convictability rather than guilt) • Unofficial “presumption of guilt” • Pragmatic Criteria • Characteristics of crime • Characteristics of victim • Characteristics of defendant • Organizational Criteria • Daily interaction with PD • Workload

8. Prosecutorial Discretion II • To Plea Bargain • Implicit Bargaining vs. Explicit Bargaining • The Sentence Bargain • Variation on a theme: The Charge Bargain • Number of counts • Severity of the crime

9. The Prosecutor & Pleas • Many pleas to reduced charges are not the result of actual bargaining between prosecutor and defense council. • Prosecutors often decide that the appropriate charge should be less than the more serious charge levied at arrest. • These decisions are often made early in the process before the prosecutor meets the defense attorney.

10. Plea Bargaining, from the Suspect’s Perspective • Trial E(T) = Prob. of Guilty Verdict X Sentence if Convicted • Negotiate E(P) = Prob of Guilt (Admitted) X Sentence after Bargain • The Decision: Plead Guilty if E(T) > E(P) Go to Trial if E(T) < E(P) The elements of the decision, esp E(T), are not certain. The criminal doesn’t know the exact probability of losing at trial nor the exact sentence he or she will receive if convicted.

11. Plea Bargaining:Its Critics & The Response The Conservative Objection • It’s just a loophole. It allows criminals to beat the system when charges are dropped or reduced. The Liberal Objection • It’s an irrational action that values expediency over the merits of the case. It coerces defendants to give up their constitutional rights against self-incrimination. It causes prosecutors to overcharge as a negotiating chip. Reality – The “Nightmare” Scenario • It’s absolutely necessary. Without plea bargaining, the large number of cases would overwhelm the system.

12. Typical Case Attrition • 100 Arrests • 80 Accepted at initial Screening. 20 are Rejected (Released w/o further action) • 30 more cases are dismissed by the prosecutor or court • 50 move forward within the criminal justice system

13. The Prevalence of Guilty Pleas • The U.S. Constitution guarantees a right to trial by jury and protects against self-incrimination…but at least for the last 80 years defendant pleas of guilty have been the most common means of criminal convictions. • Of the 50 cases out of every 100 that the system prosecutes, 45 end in guilty pleas while only 5 result in trial (4 by guilty verdict and 1 by acquittal)

14. Total Effect • 49% of arrestees are “Guilty” (45 by plea and 4 as a result of trial) • 51% are ultimately released.

15. Guilty Pleas per Trial • Manhattan, NY 24 • Atlanta, GA 22 • Golden, CO 18 • St. Louis, MO 10 • Salt Lake City, UT 9 • Tallahassee, FL 7 • Washington, DC 5 • New Orleans, LA 4* • Portland, OR 4*

16. Criminal Court Basics IV:Trial

17. Basically the process is the same as the civil trial. The Prosecutor puts on the case first. The Defendant responds. • Evidence is presented by both sides in the form of human testimony and presentation of physical evidence. • A few basic principles differ:

18. The Standard of Proof “Beyond a Reasonable Doubt” • The prosecutor must convince the judge or jury that the defendant is guilty “beyond a reasonable doubt”. • Doubts about the meaning of evidence are to be resolved in favor of the defendant. (This is what we mean when we say the defendant is presumed innocent until PROVEN guilty.) • The most common defense is to argue that the prosecutor hasn’t met the standard, that reasonable doubt remains after the evidence has been presented that the defendant committed the act that he or she is accused on committing.

19. In contrast, in civil cases the plaintiff must only prove his or her case by a “preponderance of the evidence”

20. Common Defenses I • The Presumption of Innocence • Self-Defense • Who was the aggressor? • Was the defendant’s belief that self-defense actions were required reasonable? • If so, was the force used by the defendant reasonable? • Insanity • Rarely Used/Rarely Successful • Various Definitions of Insanity • McNaughten Rule (“inability to distinguish right from wrong”) • “Irresistable impulse” (you know you’re wrong but mental illness doesn’t allow you to control your actions) • Psychological testing required by prosecutor’s psychiatrist • “Not guilty by reason of insanity” doesn’t mean “free”

21. Common Defenses II • Influence fo Drugs & Alcohol Voluntary intoxication does not excuse criminal conduct! • Alibi Evidence that the defendant was somewhere other than the scene of the crime at the time it was committed. It’s perfectly legal and reasonable but it’s use as a defense sometimes sounds “phony”. • Entrapment Entrapment occurs when the government induces a person to commit a crime and then punishes the person for committing it. (ABSCAM)

22. Criminal Court Basics IV An Alternative to “Judgment”: The Sentence Probation Fine Jail Prison