CHAPTER 8PRETRIAL PROCEDURES AND THE CRIMINAL TRIALLearning ObjectivesAfter reading this chapter, students should: Identify the steps involved in the pretrial criminal process. Identify the difference between an indictment and an information. Explain how a prosecutor screens potential cases. Indicate why prosecutors, defense attorneys, and defendants often agree to plea bargains. Explain what “taking the Fifth” really means. Contrast challenges for cause and preemptory challenges during voir dire. Explain the differences between testimony and real evidence, between lay witnesses and expert witnesses, and between direct evidence and circumstantial evidence. Delineate circumstances in which the constitutional prohibition of double jeopardy does not always apply. Lesson Plan Correlated to PowerPointsI. Pretrial Detention Learning Objective 1: Identify the steps involved in the pretrial criminal process. A. The Initial Appearance i. Defendant is informed of the charges ii. The constitutional rights are explained iii. If the defendant cannot afford a lawyer, a public defender will be appointedB. Bail i. Purpose of Baila. Does not guarantee the right to bailb. States that “excessive bail shall not be required”c. The amount of bail required must be reasonable compared with the seriousness of the wrongdoing ii. The Setting of Baila. Each jurisdiction has its own bail tariffs, or general guidelines concerning the proper amount of bail.1. For misdemeanors, the police usually follow a preapproved bail schedule created by local judicial authorities.2. In felony cases, the primary responsibility to set bail lies with the judge, with the bail tariff acting as a loose guideline.b. Defendants who cannot afford bail are generally kept in a local jail or lockup until the date of their trial. iii. Preventive Detention a. Second purpose of bail is to protect the community b. Judge can simply set bail at a level the suspect cannot affordc. More than thirty states and the federal government have passed preventive detention legislation which allow judges to act in the best interest of the community and keep offenders in custody prior to trialC. Gaining Pretrial Release i. Release on recognizance (ROR)a. ROR is used when the defendant is not at risk to “jump” bail and does not pose a threat to the communityb. The defendant is released at no cost ii. Posting Baila. Those committing felonies are rarely released on recognizance b. These defendants may post the full amount of the bail in cash to the courtc. Defendant can rarely post bail in cash d. Another option is to use personal property as collateral iii. Bail Bond Agentsa. A bail bondsperson can post a bail bond on the defendant’s behalf1. The bondsperson promises the court that he or she will turn over to the court the full amount of bail if the defendant fails to return for further proceedings2. Defendant must usually give the bondsperson a certain percentage of the bail in cash, which is often not returned to the defendant Media Tool “How Bail Bonds Work” https://www.youtube.com/watch?v=6R9xdUJFNQY A short clip about how bail bonds work. II. Establishing Probable CauseLearning Objective 2:Identify the difference between an indictment and an information.A. Once the initial appearance has been completed and bail has been set, the prosecutor must establish probable cause i. The prosecutor must prove that a crime was committed ii. The prosecutor must also link the defendant to the crimeB. The Preliminary Hearing i. During the preliminary hearing, the defendant appears before a judge or magistrate who decides whether the evidence presented is sufficient for the case to proceed to trial ii. The Preliminary Hearing Processa. Mini-trialb. A police report of the arrest is presented by a law enforcement officer, supplemented with evidence by the prosecutorc. Defendant has a right to be represented by counseld. Defense attorneys can take advantage of the preliminary hearing to begin the process of discovery1. Access to any evidence in the possession of the prosecution iii. Waiving the Hearinga. Preliminary hearings usually last no longer than 5 minutesb. Defense attorneys commonly advise their clients to waive their right to a preliminary hearingc. Once a judge has ruled affirmatively on probable cause, the defendant is bound over to the grand jury in many jurisdictionsC. The Grand Jury i. Makes the decision as to whether a case should go to trial ii. Decide whether probable cause exists iii. Grand juries are impaneled for a period of time, usually not exceeding 3 monthsa. During this time, the grand jury sits in closed session and hears only evidence presented by the prosecutorb. The defendant cannot present evidence at this hearingc. The prosecutor presents to the grand jury whatever evidence the state has against the defendant iv. If the grand jury finds that probable cause exists, it issues an indictment against the defendanta. The indictment becomes the formal charge against the defendantb. Some states require a grand jury to indict for certain crimes, while in other states a grand jury indictment is optional What If Scenario What if . . . you are an elected public official currently being investigated by the local police department for committing a crime. You are totally unaware that you are being investigated by the grand jury for accepting bribes in your capacity as an elected official. Should you have the right to testify on your own behalf in front of the grand jury so that they can hear your side? Why or why not? Why is a grand jury an excellent tool for prosecutors in investigating crimes committed by politicians? III. The Prosecutorial Screening Process Learning Objective 3: Explain how a prosecutor screens potential cases.A. Case Attrition i. Prosecutorial discretion includes the power to not prosecute cases ii. Only about one in three adults arrested for a felony see the inside of a prison or jail cell; this is referred to as case attrition iii. Half of all adult felony cases brought to prosecutors by police are dismissed through nolle prosequi iv. District attorneys do not have the resources to prosecute every arrestB. Screening Factors i. Most prosecutors have a screening process for deciding when to prosecute and when to “noll”a. The most important factor in deciding whether to prosecute is whether there is sufficient evidence for convictionb. Establish case prioritiesc. Determine existence of uncooperative victimsd. Unreliability of victimse. A prosecutor may be willing to drop a case, or reduce the charges, against a defendant who is willing to testify against other offenders What If Scenario What if . . . you were a prosecutor with a small budget. How would you prioritize the different types of cases? Would you prioritize by the gravity of the crime or the quality of the evidence or something else? IV. Pleading GuiltyLearning Objective 4: Indicate why prosecutors, defense attorneys, and defendants often agree to plea bargains.A. Based on the information or indictment, the prosecutor submits a motion to the court to order the defendant to appear before the trial court for an arraignment i. Due process requires that a criminal defendant be informed of the charges brought against him or her and be offered an opportunity to respond to those charges ii. At the arraignment, the defendant is informed of the charges and must respond by pleading guilty or not guilty, or plead nolo contendere iii. Most frequently, the defendant pleads guilty to the initial charge or to a lesser charge B. Plea Bargaining in the Criminal Justice System i. Plea bargaining usually takes place after the arraignment and before the beginning of the trial ii. Plea bargaining is a process by which the accused, represented by a defense counsel, and the prosecutor work out a mutually satisfactory disposition of the case, subject to court approval iii. Plea bargaining offers the practical benefit of saving court resources Media Tool “Supreme Court Ruling on Plea Bargaining” https://www.youtube.com/watch?v=S8tOVQmCl7Q A short interview with a former federal judge about the requirement that defendants have effective counsel in the plea bargaining process. C. Motivations for Plea Bargaining i. Prosecutors and Plea Bargaininga. Prosecutor’s goal is to get a convictionb. Plea bargaining removes the risk that a jury or judge may disagree with the case as presented by the prosecutorc. Plea bargaining can “save” a questionable cased. Plea bargaining reduces the time and money spent on each case ii. Defense Attorneys and Plea Bargaininga. Favorable plea bargains are often the best a defense attorney can do for his clientsb. Plea bargaining may increase profit margins by quickly disposing of cases iii. Defendants and Plea Bargaininga. The plea bargain allows the defendant a measure of control over his or her fateb. The benefits of plea bargaining are tangible; defendants who plea bargain receive significantly lighter sentences on average than those who are found guilty at trial iv. Protecting the Defendanta. The defendant plays only a minor role in the plea-bargaining process. b. The defendant must make a clear statement that he or she accepts the plea bargain by signing a Boykin form thereby waiving their right to a trial. v. Faulty Advisea. Defendants have a constitutional right to effective counsel vi. A Second Chance to Pleada. If a defendant proves that his/her counsel was ineffective during plea bargaining, he or she will be given another chance to make a favorable plea.D. Victims and Plea Bargaining i. Victim’s rights movement ii. Some states allow victim participation in plea bargaining iii. Emotional processE. Pleading Not Guilty i. Fairly common during arraignmenta. Gain a more favorable plea bargainb. Challenge a crucial part of the evidence on constitutional groundsc. Submit one of the affirmative defensesV. Special Features of Criminal Trials Learning Objective 5: Explain what “taking the Fifth” really means.A. Criminal trial procedures reflect the need to protect criminal defendants against the power of the state by providing them with a number of rightsB. A “Speedy” Trial i. The Sixth Amendment requires a speedy trial for those accused of a criminal acta. The reason is obvious depending on various factors; the defendant may lose his or her right to move freely and may be incarcerated prior to trialb. The accusation that a person has committed a crime jeopardizes that person’s reputation within a communityc. The sooner the trial is held, the sooner his or her innocence can be established in the eyes of the court and the public ii. The Definition of Speedy Triala. It is not specified what is meant by the term “speedy”b. The U.S. Supreme Court has refused to quantify “speedy” iii. Speedy Trial Lawsa. At the national level, the Speedy Trial Act of 1974 specifies time limits for trials in the federal court system1. No more than 30 days between arrest and indictment2. No more than 10 days between indictment and arraignment3. No more than 60 days between arraignment and trial4. Federal law allows extra time for hearings on pretrial motions, mental competency examinations, and other procedural actions iv. Statutes of Limitationsa. Citizens are protected against unreasonable delays before accusation by statutes of limitationsb. Murder and crimes that carry the death penalty do not have a statute of limitationC. The Role of the Jury i. Sixth Amendment states that anyone accused of a crime shall be judged by “an impartial jury”a. In all felony cases, the defendant is entitled to a jury trialb. It has been left to individual states to decide whether jury trials are required for misdemeanor casesc. If the defendant waives his or her right to trial by jury, a bench trial takes place in which the judge decides questions of legality and fact, and no jury is involved ii. Predominant American jury consists of twelve personsa. Jury verdict must be unanimous for acquittal or conviction in most jurisdictionsD. The Privilege Against Self-Incrimination i. The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself” ii. A defendant has the right not to testify at a trial if to do so would implicate him or her in the crime; this is often referred to as “taking the fifth” iii. Witnesses may also refuse to testify on this ground iv. Judges are required to inform the jury that an accused person’s decision to remain silent cannot be held against him or herE. The Presumption of a Defendant’s Innocence i. The presumption in criminal law is that a defendant is innocent until proved guilty ii. The burden of proving guilt falls on the state iii. Prejudicing the Jurya. Right not to testify cannot be interpreted as a guilty verdict iv. Witnesses in Courta. Witnesses may refuse to testify if they could incriminate themselvesb. But witnesses often receive immunity in exchange for the truth What If Scenario What if . . . you are accused of committing a crime that you did not commit? The police officer “hooks you up” and escorts you to your holding cell, which will be your home for some time until you can prove to the jury that you are innocent. As you sit in your cell, awaiting your trial, you think about how wrong it is to keep you in custody, since everyone knows that you are “innocent until proven guilty!” What does it mean to be considered innocent until proven guilty? If you are innocent, why are you in jail? What can you do to get out of jail before your trial? F. A Strict Standard of Proof i. In a criminal trial, the defendant is not required to prove his or her innocence ii. The state must prove the defendant’s guilt beyond a reasonable doubt iii. A high standard of proof in criminal cases reflects a fundamental social valuea. Belief that it is worse to convict an innocent individual than to let a guilty one go freeb. The high standard of proof reduces the margin of error in criminal casesVI. Jury SelectionLearning Objective 6: Contrast challenges for cause and preemptory challenges during voir dire.A. The main goal of jury selection is to produce a cross section of the population in the jurisdiction where the crime was committed B. Jurors must live in the jurisdiction where the case is being tried, but very few other restrictions on eligibility existC. State legislatures generally set the requirements i. Citizens of the United States ii. Over 18 years of age iii. Free of felony convictions iv. Of the necessary good health to function in a jury setting v. Sufficiently intelligent to understand the issues of a trial vi. Able to read, write, and comprehend the English languageD. The master jury list is made up of all eligible jurors in a community, usually drawn from voter registration lists or driver’s license rollsE. The first step in choosing a jury is to draw together the venire i. The venire is composed of all those people who are notified by the clerk of the court that they have been selected for jury duty ii. Those selected are ordered to report to the courthouse on the date specified by the noticeF. Voir Dire i. Each attorney questions prospective jurors in the voir direproceeding ii. Jurors are required to provide the court with a significant amount of personal information iii. Questioning of potential jurorsa. Attorneys fashion questions to uncover any biases on the parts of the prospective jurors and find persons who might identify with the plights of their respective side iv. Challenging Potential Jurors a. Attorney for each side exercises a certain number of challenges to prevent particular persons from serving on the juryb. Two types of challenges1. “Challenges for cause” – if a defense attorney or prosecutor concludes that a prospective juror is unfit to serve, they can request that the person not be included on the jury2. Peremptory challenges – challenges are based solely on an attorney’s subjective reasoning, in which the attorney is usually not required to give any legally justifiable reason for wanting to exclude a particular person from the juryG. Race and Gender Issues in Jury Selection i. The Sixth Amendment guarantees the right to an impartial jury ii. The goal of the attorneys’ peremptory challenges is to create a partial jury that is toward or against the defendant iii. For many years, prosecutors used their peremptory challenges as an instrument of de facto segregation in juriesa. Prosecutors were able to keep African Americans off juries in which an African American was a defendantb. Argument that African Americans would be partial toward one of their own iv. The Batson Reversala. This policy was reversed by the U.S. Supreme Court in the 1986 case of Batson v. Kentuckyb. Under the Batson ruling, the defendant must prove that the prosecution’s use of a peremptory challenge was racially motivated. What If Scenario What if . . . you are a prosecutor who is prosecuting a Hispanic man who has been accused of stealing a car? During the jury selection process, you formulate a strategy to remove all Hispanics from the potential jury. Is this allowable? v. Women on the Jurya. In 1994, J.E.B. v. Alabama ex rel. T. B. extended Batson to cover gender bias in jury selection vi. Alternate Jurorsa. Two or three alternate jurors sit through the trial in case one of the actual jurors needs to be replacedVII. The TrialLearning Objective 7: Explain the differences between testimony and real evidence, between lay witnesses and expert witnesses, and between direct evidence and circumstantial evidence.A. Opening Statements i. Attorneys may choose to open the trial with a statement to the jury, though they are not required to do so ii. The attorneys give a brief version of the facts and the supporting evidence that they will present during the trialB. The Role of Evidence i. Prosecutor begins presents the state’s evidence against the defendant ii. Evidence is anything that is used to prove the existence or nonexistence of a facta. Testimony consists of statements by competent witnessesb. Real evidence is presented to the court in the forms of exhibits, including any physical items that affect the case iii. Testimonial Evidencea. Facts or data of which they have personal knowledge b. Material presented at trialc. Secondhand information given to the expert outside the courtroom iv. Direct Versus Circumstantial Evidencea. Direct evidence is evidence that has been witnessed by the person giving testimonyb. Circumstantial evidence is indirect evidence that does not establish the fact in question but only the degree of likelihood of the fact v. The CSI Effecta. According to many prosecutors, CSI shows have fostered unrealistic notions among jurors as to what high-tech forensic science can accomplish as part of a criminal investigation. b. These expectations are unrealistic Media Tool “The CSI Effect” https://www.youtube.com/watch?v=fGc4PaLB-ek A short clip about the CSI effect and actual crime labs. vi. Relevancea. Evidence will not be admitted in court unless it is relevant to the case being consideredb. Relevant evidence is evidence that tends to prove or disprove a fact in question vii. Prejudicial Evidencea. Evidence may be excluded if it would tend to distract the jury from the main issues of the case, mislead the jury, or cause jurors to decide the issue on an emotional basisC. The Prosecution’s Case i. Because the burden of proof is on the state, the prosecution is generally considered to have a more difficult task than the defense ii. Prosecutor attempts to establish guilt beyond a reasonable doubt by presenting the corpus delicti of the crime to the jury iii. Direct Examination of Witnessesa. Are crucial to establishing the prosecutor’s case against the defendant1. The prosecutor will call witnesses to the stand and ask them questions pertaining to the sequence of events that the trial is addressing through direct examination2. The prosecutor is not allowed to ask leading questions that might suggest to the witness a particular desired response iv. Competence and Reliability of Witnesses 1. Witnesses must have mental competenciesD. Cross-Examination i. After the prosecutor has directly examined his or her witnesses, the defense attorney is given the chance to question the same witnesses ii. The Sixth Amendment gives the accused, through his or her attorney, the right to cross-examine witnesses; this is called the “confrontation clause” iii. Questioning Witnessesa. Test truthfulness of opposing witnesses iv. Hearsaya. When interviewing a witness, both the prosecutor and defense attorney will make sure that the witness’s statements are based on the witness’s own knowledge and not hearsay1. Hearsay can be defined as any testimony given in court about a statement made by someone elseb. Hearsay is not admissible as evidence because the listener may have misunderstood what the other person said Media Tool “Accused Rapist Cross-Examines Alleged Victim” https://www.youtube.com/watch?v=0Fjx-4G8XZ0 A short clip about the problems that come out of rape cases. E. The Defendant’s Case i. Creating a Reasonable Doubta. Defense lawyers most commonly defend their clients by attempting to expose weaknesses in the prosecutor’s caseb. Creating reasonable doubt c. Strategy is effective in cases that essentially rely on the word of the defendant against the word of the victim ii. Other Defense Strategiesa. Defense can choose among a number of strategies to generate reasonable doubt in the jurors’ minds1. Present an alibi defense2. Present an affirmative defense i. Self-defense ii. Insanity iii. Duress iv. Entrapment2. Defense is often willing to admit that a certain criminal act took place, especially if the defendant has already confessedF. Rebuttal and Surrebuttal i. After the defense closes its case, the prosecution is permitted to bring new evidence forward that was not used during its initial presentation to the jury through rebuttal ii. When the rebuttal stage is finished, the defense is given the opportunity to cross-examine the prosecution’s new witnesses and introduce new witnesses of its own as part of the surrebuttal G. Closing Arguments i. In their closing arguments, the attorneys summarize their presentation and argue one final time for their respective cases ii. All of the major points that support the government’s or the defense’s case, and emphasizes the shortcomings of the opposing party’s caseVIII. The Final Steps of the Trial and Postconviction ProceduresLearning Objective 8: Delineate circumstances in which the constitutional prohibition of double jeopardy does not always apply.A. After closing arguments, the outcome of the trial is in the hands of the juryB. Before jurors begin their deliberation, the judge gives the jury a charge, summing up the case and instructing the jurors on the rules of law that apply to the issues in the caseC. Jury Deliberation i. After receiving its charge, the jury begins its deliberations ii. Jury deliberation takes place in seclusion iii. In extreme cases, the judge will order the jury to be sequestered during the trial and deliberation stages of the proceedingsD. The Verdict i. Once the jury has reached a decision, the jury issues a verdict ii. The most common verdicts are guilty and not guilty iii. When a jury in a criminal trial is unable to agree on a unanimous verdict, it returns with no decision; this is a “hung jury”a. In some states, if there are only a few dissenters to the majority view, a judge can send the jury back to the jury room under a set of rules set forth in Allen v. United Statesb. The Allencharge asks jurors in the minority to reconsider the majority opinionE. Appeals i. Appeal is a process of seeking a higher court’s review of a lower court’s decision for the purpose of correcting or changing the lower court’s judgment ii. Any defendant who loses a case in a trial court cannot automatically appeal the convictiona. The defendant normally must first be able to show that the trial court acted improperly on a question of lawb. Common reasons for appeals include the introduction of tainted evidence by the prosecution, or faulty jury instructions delivered by the trial judge iii. Double Jeopardya. The appeals process is only available to the defenseb. Prosecution cannot appeal to have a decision reversed if the accused has been found not guilty, because it would infringe upon the defendant’s Fifth Amendment rightsc. The guarantee against being tried a second time for the same crime is known as protection from double jeopardy iv. The Appeal Process a. Two basic reasons for the appeals process include the following:1. To correct an error made during the initial trial2. To review policyb. Once the appeals process begins, the defendant is no longer presumed innocent1. The burden of proof has shifted, and the defendant is obligated to prove that his or her convictions should be overturned2. The method of filing an appeal differs slightly among the states and federal governmentc. Habeas Corpus 1. A judicial order that literally commands a corrections official to bring a prisoner before a federal court so that the court can hear the person’s claim that he or she is being held illegallyd. Writ of habeas differs from an appeal1. It can be filed only by someone who is imprisoned2. It can address only constitutional issues, not technical violationsF. Wrongful Convictions i. The appeals process is primarily concerned with “legal innocence.” ii. Appeals courts focus on how the law was applied in a case, rather than on the facts of the case. iii. wrongful convictions can be righted only with the aid of new evidence suggesting the defendant’s innocence:a. When such new evidence is uncovered, a prosecutor’s office can choose to reopen the case. Or, the defendant’s attorneys can use the habeas corpus procedure described above to restart court proceedings. Media Tool “The Wrongful Conviction of Alan Beaman” https://www.youtube.com/watch?v=RwbdZCdNbwk A short clip about wrongful convictions. Lecture NotesThe adversarial system of justice contains three basic features: a neutral decision maker (judge or jury), the presentation of evidence from both parties, and a highly structured set of procedures that must be used when evidence is presented. Chapter 8 introduces students to two of the central characters in the court process, the prosecutor and the defense attorney. Prosecutors often are seen as law enforcement agents. They have enormous discretionary power, including the discretion to determine which criminal cases will move forward to trial. Prosecutors also are elected officials, and therefore the obligation to please members of the community is ever-present. For this reason, some prosecutors will move forward only with cases they believe will end in conviction. On the other side of the process is the defense attorney. This individual is charged with representing the needs of the criminal defendant as he or she moves through the court process. Defense counsel is either privately obtained for a fee or appointed by the court. While many public defenders are excellent attorneys and dedicated representatives of their clients, there is a suggestion that public defense counsel may be less than desirable. Heavy caseloads and a lack of resources can impact the amount of preparation that goes into a criminal defense. Some believe that wealthy defendants, those who are able to hire private defense counsel, are actually purchasing their freedom. Ask students to discuss this concept in class. If they were to face criminal charges, what type of defense counsel would they prefer? Why? The pretrial process contains a number of important steps in the justice process. Defendants are brought before the court to hear the charges against them, may be given the opportunity to post bail, and are asked to enter a plea. Plea bargaining is common, indeed most cases never proceed to criminal trial. Prosecutors often engage in horizontal or vertical overcharging so that they have room to bargain in the plea bargaining process. A successful plea bargain spares both sides the expense of a criminal trial, and ensures the defendant will be convicted of criminal charges. This is an excellent topic for class discussion. Ask students to reflect on the goals of the court presented in Chapter 7, as well as the concept of justice. Does plea bargaining support those goals? Does plea bargaining ensure justice, or does it circumvent the constitutional protections assured in a criminal trial? What would happen to our system if plea bargaining was eliminated?Key TermsAcquittal – a declaration following a trial that the individual accused of the crime isinnocent in the eyes of the law and thus is absolved of the charges. (p. 246)Allen Charge- an instruction by a judge to a deadlocked jury with only a few dissentersthat asks the jurors in the minority to reconsider the majority opinion. (p. 260)Appeal – the process of seeking a higher court’s review of a lower court’s decision forthe purpose of correcting or changing this decision. (p. 261)Arraignment- a court proceeding in which the suspect is formally charged with thecriminal offense stated in the indictment. (p. 241)Bail – the dollar amount or conditions set by the court to ensure that an individualaccused of a crime will appear for further criminal proceedings. (p. 233)Bail bond agent – a businessperson who agrees, for a fee, to pay the bail amount if theaccused fails to appear in court as ordered. (p. 236)Bench trial- a trial conducted without a jury, in which a judge makes the determinationof the defendant’s guilt or innocence. (p. 246)Boykin form – a form that must be completed by a defendant who pleads guilty Thedefendant states that she or he has done so voluntarily and with full comprehension of theconsequences. (p. 243)Case attrition- the process through which prosecutors, by deciding whether toprosecute each person arrested, effect an overall reduction in the number of persons prosecuted.(p. 238)Challenge for cause – a voir dire challenge for which an attorney states the reason why aprospective juror should not be included on the jury. (p. 249)Charge – the judge’s instructions to the jury following the attorneys’ closing arguments. (p. 259)Circumstantial evidence – indirect evidence that is offered to establish, by inference, thelikelihood of a fact that is in question. (p. 254)Closing arguments – arguments made by each side’s attorney after the cases for theplaintiff and defendant have been presented. (p. 258)Confrontation clause – the part of the Sixth Amendment that guarantees all defendantsthe right to confront witnesses testifying against them during the criminal trial. (p. 256)Cross-examination- the questioning of an opposing witness during trial. (p. 256)Direct evidence – evidence that establishes the existence of a fact that is in questionwithout relying on inference. (p. 254)Direct examination – The examination of a witness by the attorney who calls the witnessto the stand to testify. (p. 255)Discovery – formal investigation by each side prior to trial. (p. 237)Double jeopardy – to twice place at risk [jeopardize] a person’s life or liberty. The FifthAmendment to the U.S. Constitution prohibits a second prosecution in the same court for the same criminal offense. (p. 261)Evidence – anything that is used to prove the existence or nonexistence of a fact. (p. 252)Expert witnesses – a witness with professional training or substantial experiencequalifying him or her to testify on a certain subject. (p. 253)Grand jury- the group of citizens called to decide whether probable cause exists tobelieve that a suspect committed the crime with which she or he has been charged. (p. 237)Habeas corpus – an order that requires correctional officials to bring an inmate before acourt or a judge and explain why he or she is being held in prison. (p. 262)Hearsay – an oral or written statement made by an out-of-court speaker that is lateroffered in court by a witness (not the speaker) concerning a matter before the court. Hearsayusually is not admissible as evidence. (p. 256)Hung jury – a jury whose members are so irreconcilably divided in their opinions thatthey cannot reach a verdict. (p. 260)Indictment – a charge or written accusation, issued by a grand jury, that probable causeexists to believe that a named person has committed a crime. (p. 237)Information- the formal charge against the accused issued by the prosecutor after apreliminary hearing has found probable cause. (p. 237)Initial appearance – an accused person’s first appearance before a judge or magistratefollowing arrest. (p. 233)Jury trial- a trial before a judge and a jury. (p. 246)Lay witnesses- a witness who can truthfully and accurately testify on a fact in questionwithout having specialized training or knowledge. (p. 253)Master jury list – the list of citizens in a court’s district from which a jury can beselected; compiled from voter-registration lists, driver’s license lists, and other sources. (p. 248)Nolo contendere – latin for “I will not contest it.” A criminal defendant’s plea, in whichshe or he chooses not to challenge, or contest, the charges brought by the government. (p. 241)Opening statements – the attorneys’ statements to the jury at the beginning of the trial. (p. 252)Peremptory challenge – voir dire challenges to exclude potential jurors from serving onthe jury without any supporting reason or cause. (p. 249)Plea bargaining- the process by which the accused person and the prosecutor work outa mutually satisfactory conclusion to the case, subject to court approval. (p. 241)Preliminary hearing – an initial hearing in which a magistrate decides if there isprobable cause to believe that the defendant committed the crime with which he or she ischarged. (p. 236)Preventive detention – the retention of an accused person in custody due to fears that sheor he will commit a crime if released before trial. (p. 235)Property bond – an alternative to posting bail in cash, in which the defendant gainspretrial release by providing the court with property valued at the bail amount as assurance thatshe or he will return for trial. (p. 235)Real evidence- evidence that is brought into court and seen by the jury, as opposed toevidence that is described for a jury. (p. 254)Rebuttal – evidence given to counteract or disprove evidence presented by the opposingparty. (p. 258)Release on recognizance (ROR) – a judge’s order that releases an accused person fromjail with the understanding that he or she will return for further proceedings of his or her ownwill. (p. 235)Relevant evidence – evidence tending to make a fact in question more or less probablethan it would be without the evidence. Only relevant evidence is admissible in court. (p. 254)Statute of limitations – a law limiting the amount of time prosecutors have to bringcriminal charges against a suspect after the crime has occurred. (p. 246)Testimony – verbal evidence given by witnesses under oath. (p. 253)Venire – the group of citizens from which the jury for a particular trial is selected. (p. 248)Verdict – a formal decision made by the jury. (p. 260)Voir dire – the preliminary questions that the trial attorneys ask prospective jurors todetermine whether they are biased or have any connection with the defendant or a witness. (p. 249)Wrongful conviction – the conviction, either by verdict or by guilty plea, of a person who isfactually innocent of the charges. (p. 262)Assignments1. Read the article “Bail Schedules: A Violation of Judicial Discretion?” published by the American Bar Association (ABA): http://www.americanbar.org/content/dam/aba/publications/criminal_justice_magazine/cjsp11_bail.authcheckdam.pdfWrite a summary of the article and answer the question whether bail schedules are a violation of judicial discretion. If yes, why? If no, why not? (LO 1)2. Research the grand jury proceedings. Write a discussion paper about the following question. Consider the grand jury process in the context of the rights of the accused. Is it fair that during the phase of a case where the prosecution must establish probable cause that a grand jury meets in secret to determine whether to issue an indictment? Should grand juries sit in a closed (secret) session, or should the defendant have the right to be present, and the right to call witnesses? Why or why not? Why does the defendant have the right to be present at a preliminary hearing, but not at a grand jury? (LO 2)3. Watch the documentary “The Plea” on PBS Frontline (free content). Prepare a class presentation about the cases discussed in the documentary and the fairness of plea bargaining. (LO 4)4. Ask students to consider the concept of a jury of one’s peers. In a one-to-two page paper, ask students to discuss the similarities and dissimilarities between a person who is typically on trial in the U.S. for a criminal offense versus his or her peers in the jury box. Would peers selected from driver’s registrations be more or less similar to peers selected for venire from lists of registered voters? Why? (LO 6)5. Ask students to write a short, one page paper explaining how using hearsay during a hearing or trial violates an accused’s right to confront witnesses. Make sure the paper includes an example of how such evidence might not be reliable. Ask students to give an example as to how the use of hearsay might be permitted in a trial. (LO 7)Answers To Critical Thinking Questions In The Text In practice, the constitutional right to a lawyer does not cover initial bail hearings. What are the disadvantages for an indigent defendant who is not represented by a lawyer at this point in the pretrial process?ANS: Defendants may be denied bail or receive a bail that is too high for them to pay, which will disadvantage him/her in the plea bargaining and trial process. Defendants who are in jail while awaiting trial have a lesser chance of a favorable outcome. Do you think that a prosecutor should offer a favorable plea bargain to a defendant who provides helpful information concerning a different defendant? What are the pros and cons of this practice?ANS: Prosecutors depend on cooperative witnesses for information. For instance, without cooperation of lower level members it can be very difficult to prosecute the people who are in charge of crime organizations, such as mafia or gangs. In order to get a testimony, prosecutors must offer something in exchange like a more lenient punishment or witness protection. At the same time it seems unfair that some defendants receive a lesser punishment or no punishment when victims may still suffer the consequences of the crime. During the trial of George Zimmerman (described in Chapter 3), a defense attorney joked, “Knock, knock. Who’s there? George Zimmerman. George Zimmerman who? All right, good, you’re on the jury.” Explain the point behind this attempt at courtroom humor.ANS: The attorney may have tried to show that it was not possible to find a juror who did not know about the case before the trial started. He was trying to prevent a prejudiced jury. The Martin case was highly publicized in all different types of news media. A prejudiced jury may be problematic for the defendant if they believe the defendant is guilty. In such cases defense attorneys can ask for a change of venue. This case was publicized nationwide, however. Why is the appeal process so important to the American criminal justice system? What would be some of the consequences if criminal defendants did not have the ability to appeal questionable convictions?ANS: The appeals process is important because it provides an opportunity to correct errors. For instance, if a defendant had incompetent counsel, then this may be corrected by an appellate court which can order a new trial. Texas has a law called the Tim Cole Compensation Act, under which people who are wrongfully convicted of crimes may collect $80,000 from the state for each year of unwarranted imprisonment. Do you think this is fair? Why or why not? What are the goals of this kind of legislation?ANS: I think this law is fair. Even though most people who are incarcerated wrongfully would not actually earn $80,000 if they had not been convicted, this sum attempts to provide them with an honest opportunity of a new start. People who have been incarcerated have great difficulty finding a job because of the lack of skills. While in prison, society has developed, especially technology, and prisoners do not usually have the opportunity to acquire the skills necessary to start working right after release. They will need money and opportunities to get schooling or other training. In addition, the mental anguish of being wrongfully incarcerated often causes mental trauma, can lead to drug use while in prison, and other issues. The pain of being wrongfully incarcerated is substantial. They often need medical services and money for their retirement. $80,000 sounds like a lot of money, but by the time all of the costs have been paid, there may not be much left.