AmNG Lecture 11Law

Today’s Concepts

• Malum Prohibitum Crime• Malum in se Crime• Criminal Negligence• Due Process• Preliminary Hearing• Grand Jury Indictment• Arraignment• Plea Bargain• Pre-Trial Motions

Looking at Crime• Felony: Major crimes that often result in incarceration or stiff

fines.

Ex: Murder, Possession of large amount of narcotics, Grand Larceny, etc.

• Misdemeanor: Minor crimes that do not usually result in jail-time.

Ex: Speeding, possession of small amounts of certain narcotics, certain alcohol violations, etc.

• Capital Offense: A criminal offense where the punishment could result in execution if convicted.

– Ex: Murder, Treason, Espionage, War Crimes

Types of Crime• Victimless Crimes or Malum Prohibitum: Crimes that do not affect anyone except

the law breaker. Ex: Drug usage, Seat belt laws, Helmet laws, consensual sexual behavior. • Malum in se Crimes: Evil or wrong in itself. Ex: Unjustified homicide, rape, assault• Criminal Negligence: Criminal action that is the result of an indirect or accidental

action or inaction. Ex: DUI, Death due to fighting, driving under the influence, failure to prevent someone’s immediate death

• Standard of Care: The level of responsibility or action that one failed to take in a case involving negligence. – Ex: A drunk driver who hits a pedestrian did not take the proper standard of

care to insure that they were okay to drive. • White Collar Crime: Entirely non-violent crime where property or privileged

information is stolen or hidden. Ex: Fraud, conspiracy, laundering, perjury, petit larceny • Property Crime: Crime that results in the unlawful removal another’s property

Ex: Theft, Burglary, Larceny, Grand Theft, etc.

What the Constitution Says About the Rights of the Criminally Accused (Cont.)

• Tried to trial by a Jury of your peers• Innocent till proven guilty • No excessive bail• No cruel or unusual punishment• Right to Counsel• Right to be confronted by accusers• Habeas Corpus • Due Process• Speedy and Public Trial• Grand Jury Indictment• No self-incrimination• Can compel witnesses for own defense

U.S. Criminal Procedure

Criminal Procedure

• The prosecution is typically the State (government) that seeks a conviction of a crime. (Typically a District Attorney)

• The Defendant is the person who is being tried for a crime.

• Most criminals are represented by counsel, though it can be refused.

• Most cases do not make it to trial, most defendants plea bargain out of a trial in exchange for leniency.

• Plea Bargain: Is a legal maneuver that allows a criminal defendant to admit guilt in exchange for leniency. – About 85% of felony cases are settled

through plea bargain.– Why would people want to plea bargain? – Why would the state want to plea bargain?

• Due Process: Uniformly applied legal procedure that essentially guarantees fair play before a government can deny a person of life, liberty or their property.

• Regardless of wealth, race or political preferences, there are set procedures to ensure that everyone gets the same fair & Constitutional process.

Needle Exchange ProgramsEndorsing Crime or Common Sense?

• Some cities across the country have established needle exchange programs for Intravenous drug users.

• Drug users will bring in their used needles and exchange them for fresh new clean needles.

• Opponents say it encourages people to break the law and perpetuates crime.

• Proponents say that it slows the spread of HIV and other diseases.

• What do you think of this idea? • Can you think of another way to deal with the

spread of HIV and other diseases? • Does not having clean needles harm people

beyond the drug user?

Arrest• Typically, unless your are observed breaking the law,

the court will issue an arrest warrant that is signed by a judge or magistrate.

• The warrant lays out the accusations against you and the person that the arrest warrant is to be served to.

• Once you are arrested you are then searched, your vehicle & effects can be searched w/o a warrant, and your home can be searched if an arrest warrant was issued.

Arrest• Once arrested, you are handcuffed (if you are in a

public place) read your rights, finger-printed, photographed, and allowed to contact your attorney, family or bondsman to post your bond or bail.

• Most major misdemeanors have an automatic bail amount attached to them, whereas in felony cases the bail is set by the judge in the preliminary hearing.

• For felonies, the court generally posts a bond that is high and the defendant can post 10% of the bond in cash or employ a bail bondsman to pay it using their personal property as collateral.

Preliminary Hearing• Preliminary Hearing: A hearing where the defendant is notified of the

charges against them (Habeas Corpus), bail is set, and they are re-notified of their rights.

• The Preliminary Hearing Usually takes place quickly following arrest.

• The Preliminary Hearing is often held by a lower level judge with the purpose being to re-explain your Miranda Rights and notify you of the charges against you.

• For felony cases the judge usually sets a bail that is proportionate to the crime and the ability of the defendant to pay.

• The defendant can request a bail hearing to assess whether or not bail is appropriate, generally judges will not allow bail for capital or major drug cases or where the defendant has a history of absconding.

Grand Jury Indictment• Grand Jury: A jury of 12 to 23 persons convened in private session to evaluate

accusations against persons charged with crime and to determine whether the evidence warrants an indictment.

• Indictment: A pre-judgment by a grand jury that states that there are enough facts to warrant a trial.

• Grand Juries do not decide guilt or innocence, they just ascertain whether enough evidence exists to bring someone to trial.

• Once a judge has determined that there is sufficient evidence to proceed, the case is turned over to the prosecutor, usually a district attorney.

• The District attorney gathers preliminary evidence and then submits this evidence to a Grand Jury.

• The defendant nor his/her attorney are present when the prosecutor presents evidence to the Grand Jury.

Arraignment• After a defendant is indicted, they appear for their arraignment

hearing.

• Arraignment: Procedural hearing where indictment is read and the defendant enters their plea (guilty, not-guilty, not-guilty by reason of insanity or no-contest) and a trial date is set.

• By this point, the defendant is given counsel if they have not secured counsel on their own.

• Defendants have the right to refuse counsel if they wish.

• If they cannot afford an attorney, the state will furnish them one.

Pre-Trial Hearings

• Pre-trial Hearing or Motions: meeting between the prosecution, defense, and judge disclose all incriminating evidence and determine the conduct of a trial.

• For instance, one pre-trial hearing or motion is called Discovery where the prosecution has to reveal all of the evidence it has.

• Unlike the movies, most evidence is already been seen before the trial.

• At this conference a judge establishes what evidence is admissible and his/her expectations for the trial.

• This is when plea bargains are usually arranged, although they can take place sooner.

Pre-Trial Hearings: Jury Selection• Jury Selection: A pre-trial hearing for selecting jurors where both

the prosecution & defense can strike jurors for various causes. This selection process is also called Voir Dire.

• Jury selection starts with pool (50 – 100) of potential jurors being selected randomly from the community .

• Both sides question each juror and can dismiss jurors first with a dismissal or strike for cause (they are mentally ill or related to the defendant, etc.) and then preemptory challenges, which the attorneys do not have to provide cause.

• Each side alternates striking jurors until they arrive at a jury of 12 jurors and 3 alternates.

• A jury for a felony trial is called a petit jury, they are said to be impaneled when selected to sit on the jury.

Trial• Adversarial System: Where the defense and prosecution

have different aims and thus always fully oppose each other regardless of knowledge or guilt, no guilt or bias.

• The verdict can result in mis-trial, guilty at charged, or an acquittal (not-guilty).

• If the defendant is ruled guilty, they have the right to appeal.

• Unless the defendant requests a bench trial, the Judge in a trial really only serves a moderator or referee.

• Typically in a trial, the arguments are all directed at the jury who is fully responsible for delivering a verdict.

Trial• First the Prosecution presents all of its evidence. • Evidence can consist of physical evidence or

testimony from experts or witnesses. • After each piece of evidence is presented, the

defense can cross examine to explain or discredit the evidence before the jury.

• Testimony from witnesses must be first person and the person making accusations must be present and provide the incriminating testimony in front of the defendant and jury.

Trial• Evidence from people unable to testify is called hearsay and

is inadmissible.

• After the prosecution presents all of it’s evidence, the defense presents any additional evidence to try to prove innocence.

• For every piece of evidence, the prosecution can cross examine.

• Sometimes at this stage the defendant will testify, although he/she cannot be compelled to do so.

• The trial ends with summations and instructions from the judge to the jury

The Trial: Jury Deliberations • The jury is then sequestered to a room and told to give a verdict.

• Jurors are generally instructed to examine the evidence and decide whether or not they believe beyond a reasonable doubt that the defendant committed the crime. – If they vote to acquit, then the defendant is set free.– If it results in a hung jury, the court can retry the defendant. – If it jury decides for conviction, the defendant is sentenced and can

appeal.

• The verdict must be unanimous to either acquit or convict.

• If one juror disagrees with the verdict and votes that way, it results in a hung jury.

• Hung Jury: A criminal petit jury that is unable to come to a unanimous verdict. It results in a mis-trial.

Sentencing Trial

• If the defendant is convicted, a second trial is convened to determine the punishment for the crime.

• In most states the judge decides appropriate punishment, unless it’s a capital offense.

• If the defendant has been convicted of a capital crime, a jury often determines whether his or her crime warrants the death penalty.

• State legislatures have limited the role of judges with mandatory sentencing which gives the judge much less say in the treatment of the accused.

Appeals• Appellate Courts are not courts of record, which means that you are

not present when your appellate brief is reviewed by the court of appeals.

• They do not decide guilt, innocence or blame, rather they only examine whether a lower courts ruling was consistent with the Constitution.

• Unless you are sentenced to death, a state Supreme Court usually does not have to receive your appeal.

• Appellate Courts usually only overturn convictions if they find gross discrimination or Constitutional Errors in the original trial

• Only about 1% of convictions are overturned by appellate courts.

Incarceration

• Why do we send people to prison? • 4 Reasons for Incarceration: – Isolation/Incapacitation– Deterrence– Justice– Rehabilitation

Concepts to Know

• Victimless Crimes or Malum Prohibitum: Crimes that do not affect anyone except the law breaker.

• Malum in se Crimes: Evil or wrong in itself. • Criminal Negligence: Criminal action that is the result of an indirect or accidental action or

inaction. • Plea Bargain: Is a legal maneuver that allows a criminal defendant to admit guilt in exchange

for leniency. • Due Process: Uniformly applied legal procedure that essentially guarantees fair play before a

government can deny a person of life, liberty or their property. • Preliminary Hearing: A hearing where the defendant is notified of the charges against them

(Habeas Corpus), bail is set, and they are re-notified of their rights. • Grand Jury: A jury of 12 to 23 persons convened in private session to evaluate accusations

against persons charged with crime and to determine whether the evidence warrants an indictment.

• Indictment: A pre-judgment by a grand jury that states that there are enough facts to warrant a trial.

• Arraignment: Procedural hearing where indictment is read and the defendant enters their plea (guilty, not-guilty, not-guilty by reason of insanity or no-contest) and a trial date is set.

• Pre-trial Hearing or Motions: meeting between the prosecution, defense, and judge disclose all incriminating evidence and determine the conduct of a trial.

For the Next Quiz• **Judicial Review• **Judicial Activist• **Judicial Restraint• Malum Prohibitum Crime• Malum in se Crime• Criminal Negligence• Due Process• Preliminary Hearing• Grand Jury Indictment• Arraignment• Plea Bargain• Pre-Trial Motions

•Article III (Judicial Function)•**Common Law•**Stare Decisis•Civil Law•**District Courts & Original Jurisdiction•**Appellate Courts & Appellate Jurisdiction•Majority Opinion•Writ of Certiorari•Swing Justice