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  1. Is Criminal Justice Chaotic?

  2. Bail and Pretrial Release
    1. Bail as a form of guarantee; defendant is set free until trial
      1. dates back to several hundred years
      2. freedom under financial control
    2. The right to bail—Eighth Amendment
      1. extent to the right is unclear
      2. federal rule; Judiciary Act of 1789
      3. many state constitutions provide right to bail
      4. excessive bail—Stack v. Boyle (1951)
    3. Discretionary bail setting
      1. purpose of bail—insure presence of accused at trial or protection of society?
      2. posting bail at the police station; established bail amounts
      3. criteria for setting bail
        1. seriousness of the crime
        2. defendant's prior record
        3. strength of the state's case
    4. The bail bond business
      1. ways of making bail; cash or property
      2. bail bond agent; businessperson who sells a service for a fee; nonrefundable
        1. responsible to the court if defendant fails to show for trial
        2. bond agents usually reject poor risks
    5. Criticisms of the bail system
      1. results in confinement of low risk offenders
      2. judicial discretion; unreasonably high levels
      3. little background information on accused
      4. bail used as preventive detention
      5. use of bench warrants
    6. Pretrial detention
      1. many defendants have trouble making bail set at even a few hundred dollars
      2. failure to make bail results in the defendant remaining in jail
      3. problems of pretrial detention
        1. disrupts employment
        2. mixing of pretrial detainees and sentenced offenders
        3. overcrowding in jails
        4. violence and potential for harm to defendant
    7. Preventive detention
      1. high bail set as a means of insuring that defendants do not gain pretrial freedom
      2. legal consequences for the defendant
    8. Release on recognizance
      1. Vera Institute—Manhattan Bail Project
      2. release of an accused without requiring monetary bond
      3. based on evaluation of the accused
      4. ten percent cash bond


  3. The Grand Jury
    1. A body of citizens authorized to conduct investigations and determine if accused persons should go to trial
      1. dates to 1166 in England
      2. indictment or presentment as an official accusation
      3. the information as an alternative to the grand jury indictment
      4. grand jury provided for in Fifth Amendment to U.S. Constitution
      5. Hurtado v. California—grand jury not required in state proceedings
    2. Operation of the grand jury
      1. two types—investigatory and accusatory
      2. special procedures which differ from those used by trial courts
        1. secret proceedings
        2. accused is usually not present
        3. defense counsel is usually not present
      3. true bill—endorsement of the charge made by the prosecutor
    3. Grand jury procedure and the Supreme Court
      1. prosecutor directs grand jury proceedings and has wide discretion
      2. the Frank Costello case and indictments based on second-hand information (hearsay)
      3. United States v. Calandra—exclusionary rule does not apply to grand juries
    4. Grand juries on trial
      1. grand jury as a citizen's protection against unfounded charges and prosecution
      2. the ex parte (one-party) nature of the proceeding
      3. abuses in the granting of immunity
        1. transactional immunity
        2. use immunity
      4. the contempt power; used to compel witnesses to testify
      5. an extension of the prosecutor


  4. The Plea; Usually Made at Arraignment
    1. Not guilty—the prosecution must move ahead with its case; standing mute
    2. Guilty—negative consequences; defendant surrenders several rights
    3. Nolo contendere
      1. no contest given to the charges
      2. no admission of guilt
      3. cannot be used against the accused in a later civil lawsuit
      4. Agnew case
    4. Insanity plea
      1. admission of guilt with a claim that the defendant is not legally blameworthy because of insanity
      2. dual plea of not guilty and not guilty by reason of insanity
      3. an affirmative defense—defense must enter evidence to support insanity claim
      4. guilty but mentally ill
      5. not commonly used; defendant rarely wins
    5. Statute of limitations
      1. prosecution is prohibited after a certain time period
      2. not applicable in murder cases
    6. Double jeopardy
      1. multiple prosecutions for same offense prohibited by the Fifth Amendment
      2. has taken 200 years to clarify; many U.S. Supreme Court cases


  5. Pretrial Motions—Formal Request to the Court for Some Action
    1. Motion for discovery—defense asks to examine the prosecution's evidence
    2. Motion for change of venue—to move the trial to another location
    3. Motion for suppression—to have evidence excluded from consideration at trial
    4. Motion for a bill of particulars—defense request for more details about the charge
    5. Motion for severance
      1. to have multiple charges tried separately
      2. to have multiple defendants tried separately
      3. joinders—when charges and/or defendants are joined and tried together
    6. Motion for continuance—that the trial be postponed for a later date
    7. Motion for dismissal—on the grounds that there is insufficient evidence against the accused to proceed with the trial


  6. Speedy and Public Trial
    1. Sixth Amendment—to prevent the government from delaying indefinitely, especially if the accused is in jail
      1. difficulties in putting this protection into practice.
      2. some states have statutory provisions; limits vary from state to state
    2. The Supreme Court and speedy trial
      1. the reasonableness standard; the Constitution is unclear as to meaning
      2. Supreme Court decisions in the 1970s served to clarify somewhat
    3. Speedy trial and the states; made applicable to the states in Klopfer v. North Carolina (1967)
    4. The Speedy Trial Act of 1974; sets a 100 day deadline between arrest and trial in federal cases
    5. The right to a public trial
      1. origin in English common law
      2. to protect against secret trials


  7. The Jury
    1. Provided by the Sixth Amendment; may be waived by defendant resulting in bench trial
    2. The right to trial by jury
      1. dates back over 700 years; Magna Carta
      2. appears in the U.S. Constitution in both Article III and the Sixth Amendment
      3. federal rule is firm; twelve member juries and unanimous verdicts
      4. not made binding on the states until 1968 (Duncan v. Louisiana) for serious crimes and 1970 (Baldwin v. New York) for petty offenses
    3. Jury selection
      1. petit or trial juries
      2. the states may use (and often do) six person juries
      3. eligibility requirements for jurors
      4. voter registration rolls commonly used to select jurors
    4. The venire—list of potential jurors who may be called for service
    5. Voir dire—to speak the truth
      1. questioning of potential jurors by prosecutor and defense attorney
      2. challenge for cause
      3. preemptory challenge
      4. Supreme Court rulings governing the use of preemptory challenges; problem of excluding minorities
      5. voir dire results in a selected jury plus alternates as required by law
      6. selecting jurors by a process of elimination


  8. The Criminal Trial
    1. Trial begins after the jury is sworn in
      1. question of sequestration
      2. common trial procedures used throughout the United States
    2. Opening statements
      1. first by prosecution, then by defense
      2. intended to outline each side's case and preview how the trial will progress
    3. Presentation of the state's case
      1. prosecution presents its case first
      2. the rules of evidence
        1. real evidence
        2. testimonial evidence
        3. direct evidence
        4. circumstantial evidence
        5. evidence must be competent, material, and relevant; hearsay not allowed
        6. controversy over use of polygraphs
      3. examination of witnesses
        1. state begins with direct examination of a witness
        2. defense may cross-examine the witness
        3. redirect and re-cross
      4. objections—sustained or overruled
    4. Motion for a directed verdict; prima facie case
    5. Presentation of the defense's case
      1. importance of the "compulsory process" for obtaining defense witnesses
      2. presentation of evidence in chief
      3. privilege against self-incrimination, but accused may testify voluntarily
      4. presentation follows same pattern as the prosecution's case
      5. prosecution retains the burden of proof throughout
    6. Rebuttal and surrebuttal—introduction of new witnesses and evidence by the prosecution and defense after the defense rests its case
    7. Closing arguments
      1. each side has a chance to make a summation—defense first, then prosecution
      2. the key element is the power of persuasion
    8. Charging the jury
      1. the judge instructs the jury on possible verdicts, the rules of evidence, and the legal meaning of "beyond a reasonable doubt"
      2. judge may present a summary of the evidence
      3. instructions can be lengthy and involve complex issues
    9. Jury deliberations
      1. jury selects a foreperson
      2. most states require unanimous verdicts
      3. deliberations may be lengthy in order to reach a verdict
      4. the "hung jury"
    10. Verdict and judgment
      1. jury presents its verdict to the court
      2. jury nullification—the jury nullifies (cancels out) the force of strict legal procedure
      3. jury may be polled; each juror is asked individually if this is his or her verdict
    11. Posttrial motions—to set aside judgment or ask for a new trial


  9. Summary





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