Chapter 13

Key Terms

1. Corpus Delicti – Proof of an act and that the act resulted from the illegal actions of the defendant; also called proving the crime.
2. Continuance – A court-authorized postponement of a case to allow the prosecution or defense more time to prepare its case.
3. Discovery – The process that entitles a suspect to review certain information gathered by the prosecutor.
4. Trial Jury – A group of citizens (usually twelve) who decide on the guilt or innocence of a defendant.
5. General Defense – Justification or excuse for criminal conduct that are applicable to all criminal offenses.  
6. Justification Defense – Defenses that admit to the criminal conduct, but claim it was justified by overwhelming circumstances, such as self-defense.
7. Excuse Defense – Defenses that claim that criminal conduct should be excused because the defendant cannot be held responsible for it. Insanity and duress are examples.
8. Jury Nullification – Acquittal of a defendant despite facts that show guilt.
9. Retribution – Punish applied simply in proportion to the seriousness of the offense.

10.  Incapacitation – Prevention of further criminal behavior by physically restraining the offender from engaging in any future misconduct (usually through incarceration).

11.  Selective Incapacitation – Identification of potential high-rate offenders for incarceration for longer periods as a means of reducing crime.

12.  Habitual Offender Laws – Laws that subject multiple offenders to periods of incarceration ranging up to life imprisonment, on the grounds that they must be physically separated from society from their criminal conduct.

13.  Deterrence – Prevention of crime through the examples of offenders being punished.

14.  Rehabilitation – The view that sees criminal behavior as stemming from social or psychological shortcomings; the purpose of sentencing is to correct or treat these shortcomings in order to prevent future crimes.

15.  Suspended Sentence – A delayed imposition of a prison sentence that requires the offender to fulfill special conditions such as alcohol, drug, or gambling treatment or payment of restitution.

16.  Presentence Report – A report conducted by a probation officer into an offender’s background to assist the judge in determining an appropriate sentence.

17.  Indeterminate Sentencing – A system of sentencing that empowers the judge to set a maximum sentence (up to the limit set by the legislature), and sometimes a minimum sentence, for the offender to serve in prison.

18.  Determinate Sentencing – A sentencing system that permits judges to impose fixed sentences that cannot be altered by a parole board.

19.  Truth in Sentencing – A sentencing provision that requires offenders to serve the bulk of their sentence (usually 85 percent) before they can be released.

20.  Mandatory Sentencing – Fixed sentences for offenders convicted of certain types of crimes such as gun-related crimes, drug offenses, and drunk-driving offenses.

21.  Guideline Sentencing – Sentences developed by examining the averages of past sentences imposed on various combinations of offenders and offenses and designed to achieve proportionality and uniformity without mandating specific sentences for certain crimes of offenders.

22.  Cruel and Unusual Punishment – A portion of the Eighth Amendment prohibiting criminal penalties that violate “evolving standards of decency that mark the progress of a maturing society.”

Review Questions:

Chapter 13 Questions

1. List the consequence of events in a typical criminal trial. The consequence of events are as follows: defendant is arrested and complaint is filed, preliminary hearing, grand jury returns indictment, discovery proceedings, motions filed, trial, opening statements, government prosecutor’s case, presentation of evidence, defendant’s case, government’s rebuttal case, closing arguments, jury instructed, deliberations, and verdict.  
2. What is required if a jury is to reach a verdict of guilty? If a jury is to reach a verdict of guilty, it must agree that guilt has been proven beyond an unreasonable doubt.
3. What are some arguments for and against considering factors other than the crime in deciding on an appropriate sentence for a convicted offender? These arguments are that sentencing is subject to much criticism and are seen as either too lenient or too severe.
4. Name and describe the four main purposes of sentencing. The four main purposes of sentencing are retribution, incapacitation, deterrence, and rehabilitation. Retribution is a punishment applied simply in proportion to the seriousness of the offense. Incapacitation is the prevention of further criminal behavior by physically restraining the offender from engaging in future misconduct. Deterrence is the prevention of crime through the example of offender being punished. Lastly, rehabilitation is the view that sees criminal behavior as stemming from sociological or psychological shortcomings, having a purpose to correct or treat these shortcomings in order to prevent future crimes.
5. What is a suspended sentence? A suspended sentence is a delayed I position of a prison sentence that requires the offender to fulfill special conditions such as alcohol, drug, or gambling treatment or payment of restitution.
6. Distinguish between indeterminate and determinate sentencing systems. Indeterminate sentencing is a system of sentencing that empowers the judge to set a maximum sentence and sometimes a minimum sentence, for the offender to serve in prison. Determinate sentencing, in contrast, is a sentencing system that permits judges to impose fixed sentences that cannot be altered by a parole board.
7. What is meant by “truth in sentencing”? Truth in sentencing is a sentencing provision that requires offenders to serve the bulk of their sentence before they can be released.
8. What are sentencing guidelines? What effect have they had in the states where they have been adopted? Sentencing guidelines are sentences developed by examining the averages of past sentences imposed on various combinations of offenders and offenses designed to achieve proportionality and uniformity without mandating specific sentences for certain crimes or offenders. The effects of advantage are the promotion of uniformity and proportionality in sentencing without the problems of mandatory sentences. They allow for accurate protection and control of prison populations, allowing departures from guidelines where necessary. The effects of disadvantage are the appearance of deterioration after a few years’ experience and it having to revolve around considerations of justice, not managing the prison population. They also violate constitutional separation of powers by permitting legislatures to set sentences.
9. What protections are provided by the Eighth Amendment to the U.S. Constitution? Protections provided by the Eighth Amendment are that of excessive bail not being required, excessive fines not being imposed, and cruel and unusual punishment not be inflicted.

10.  What is the current legal status of the death penalty? The current legal status of the death penalty is that is can be imposed so long as both aggravating and mitigating circumstances are considered by the judge or jury in a nonarbitrary manner.

11.  Describe the main arguments in support of the death penalty. The arguments in support of the death penalty are on one of four grounds: the death penalty is a necessary punishment as retribution for the life unlawfully taken; the death penalty will deter others from committing murder; the death penalty is less expensive to administer than life in prison; and errors in executing innocent persons are rare.

12.  How has DNA testing changed the way in which convicted criminals are viewed? DNA testing has been instrumental both in convicting and in exonerating suspects linked to serious crimes, but has also proved errors in many criminal convictions.

Chapter Twelve:

Chapter 12 Key Terms

1.     Corpus Delicti: Proof of act and that act resulted from the illegal actions of the defendant; also called proving the crime.

2.     Continuance: A court-authorized postponement of a case to allow the prosecution or defense more time to prepare its case.

3.     Discovery: The process that entitles a suspect to review certain information gathered by the prosecutor.

4.     General Defenses: Justification or excuses for criminal conduct that are applicable to all criminal offenses.

5.     Justification Defenses: Defenses that admit to the criminal conduct, but claim it was justified by overwhelming circumstances, such as self-defense.

6.     Excuse Defenses: Defenses that claim that criminal conduct should be excused because the defendant cannot be held responsible for it. Insanity and duress are examples.  

7.     Jury Nullification: Acquittal of a defendant despite facts that show guilt.

8.     Retribution: Punishment applied simply in proportion to the seriousness of the offense.

9.     Incapacitation: Prevention of further criminal behavior by physically restraining the offender from engaging in future misconduct (usually through incarceration).

10.  Selective Incapacitation: Identification of potential high-rate offenders for incarceration for longer periods as a means of reducing crime.

11.  Habitual Offender Laws: Laws that subject multiple offenders to periods of incarceration ranging up to life imprisonment, on the grounds that they must be physically separated from society in order to protect society from their criminal conduct.

12.  Deterrence: Prevention of crime through the example of offenders being punished.

13.  Rehabilitation: The view that sees criminal behavior as stemming from social or psychological shortcomings; the purpose of sentencing is to correct or treat these shortcomings in order to prevent future crimes.

14.  Suspended Sentence: A delayed imposition of a prison sentence that requires the offender to fulfill special conditions such as alcohol, drug, or gambling treatment or payment of restitution.

15.  Presentence Report: A report conducted by a probation officer into an offender’s background to assist the judge in determining an appropriate sentence.

16.  Indeterminate Sentencing: A system of sentencing that empowers the judge to set a maximum sentence (up to the limit set by the legislature), and sometimes a minimum sentence, for the offender to serve in prison.

17.  Determinate Sentencing: A sentencing system that permits judges to impose fixed sentences that cannot be altered by a parole board.

18.  Truth in Sentencing: A sentencing provision that requires offenders to serve the bulk of their sentence (usually 85%) before they can be released.

19.  Mandatory Sentences: Fixed sentences for offenders convicted of certain types of crimes such as gun-related crimes, drug offenders, and drunk-driving offenses.

20.  Guideline Sentences: Sentences developed by examining the averages of past sentences imposed on various combinations of offenders and designed to achieve proportionality and uniformity without mandating specific sentences for certain crimes or offenders.

21.  Cruel ad Unusual Punishment: A portion of the Eight Amendment prohibiting criminal penalties that violate “evolving standards of decency that mark the progress of a maturing society.

Questions

1.     List the sequence of events in a typical criminal trial?

§  A defendant is arrested, and complaint filed; preliminary hearing; grand jury returns indictment; discovery proceedings; motion filed; trial; opening statements; government prosecutor’s case; presentation evidence; defendant’s case; government’s rebuttal case; closing argument; jury instructed; deliberations; and verdict.

2. What is required if a jury is to reach a verdict of guilty?

§  When a jury reaches a verdict of guilty, the defendant stands convicted of the crime alleged. The defendant then is sentenced within the limits established by law. Commonly both the prosecutor and defense counsel make recommendations to the judge regarding an appropriate sentence.

3. What are some arguments for and against considering factors other than the crime in deciding on an appropriate sentence for a convicted offender?

§  Sentencing is subject to much criticism: Sentences often are seen as either too lenient or too severe. A sentence rarely is viewed as appropriate in a given case. However, judges do not decide on sentences in an arbitrary fashion. The degree of latitude given to judges is established by law. It is obvious that other sentencing choices were available to the judge, and those other sentences could have been imposed and defended rationally.

§  Retribution and Incapacitation plays an important role in this matter. Whereas when a judge sentences for purposes retribution, punishment is applied simply in proportion to the seriousness of the offense. The “eye for an eye” system of justice described in the Old Testament is an early form of retribution.  However, sentences based on the concept of incapacitation are intended to prevent further criminal behavior by physically restraining the offender from engaging in future misconduct. The primary method of incapacitation in the U. S. is incarceration, although other methods also are used, such as suspension of the offender’s license to practice law or medicine in cases of crimes committed by lawyers or physicians. In few countries amputation is still used as punishment for robbery and theft.

4. Name and describe the four main purposes of sentencing?

§  Retribution and Incapacitation plays an important role in this matter. Whereas when a judge sentences for purposes retribution, punishment is applied simply in proportion to the seriousness of the offense. The “eye for an eye” system of justice described in the Old Testament is an early form of retribution.  However, sentences based on the concept ofincapacitation are intended to prevent further criminal behavior by physically restraining the offender from engaging in future misconduct. The primary method of incapacitation in the U. S. is incarceration, although other methods also are used, such as suspension of the offender’s license to practice law or medicine in cases of crimes committed by lawyers or physicians. In few countries amputation is still used as punishment for robbery and theft.

§  Deterrence as a purpose of sentencing that aims to prevent crime through the example of offenders’ is being punished. General deterrence is directed at preventing crime among the general population, while special deterrence is aimed at preventing future crimes by a particular offender. Unfortunately, the objectives of general and special deterrence are not always compatible.

5. What is a suspended sentence?

§  It is a delayed imposition of a prison sentence that requires the offender to fulfill special conditions such as alcohol, drug, or gambling treatment or payment of restitution.

6. Distinguish between indeterminate and determinate sentencing systems.

§  Indeterminate sentencing systems empower the judge to set a maximum amount of time (up to the limit set by the legislature), and sometimes a minimum amount as well, for the offender to serve in prison. While determinate sentencing systems permits the judge to impose fixed sentences that cannot be altered by a parole board.

7. What is meant by “truth in sentencing”?

§  It is a sentencing provision that requires offenders to serve the bulk of their sentence (usually 85%) before they can be released.

8. What are sentencing guidelines? What effect have they had in the states where they have been adopted?

§  These are sentences developed by examining the averages of past sentences imposed on various combinations of offenders and offenses and designed to achieve proportionality and uniformity without mandating specific sentences for certain crimes or offenders.

§  The primary thrust was to emphasize the offense, rather than the offender, in criminal sentencing. In 1987 the commission implemented federal sentencing guidelines, and seven additional states had established voluntary sentencing guidelines. Although sentencing guidelines have been found to increase uniformity in sentencing in many jurisdictions, this is not the case everywhere. After the first few years, uniformity tends to deteriorate.

9. What protections are provided by the Eight Amendment to the U.S. Constitution?

§  The portion of the Eight Amendment that has been most rigorously scrutinized is the prohibition of cruel and unusual punishment. A punishment is considered cruel and unusual if, in the words of the Supreme Court, it violates “evolving standards of decency that mark the progress of a maturing society.”

10. What is the current legal status of the death penalty?

§  There are several reasons that the death penalty is not a deterrent to criminal homicide. Most significant is that the offenders must consider the consequences of their actions if deterrence is to take place. If a person does not consider the possibility of being penalized for pursuing criminal actions, no penalty, however severe, will act as a deterrent. The crime of murder is rarely carried out in such a rational fashion. 

11. Describe the main arguments in support of the death penalty.

§  Some claim that the death penalty is more economical than housing an offender in prison for life. The economic argument for the use of the death penalty thus does not hold up under scrutiny. It also overlooks the fact that the proportion of offenders who ever face the death penalty is extremely small.    

12. How has DNA testing changed the way in which convicted criminals are viewed?

§  DNA tests are now generally accepted as evidence in court. DNA evidence has revealed that eyewitnesses’ testimony is sometimes mistaken, that jailhouse informants can be unreliable, and that those with criminal records often become suspects in criminal cases without strong evidence of their involvement in the crime.

Chapter Eleven

Key Terms: Chapter 11

1.     Right to Counsel: a Sixth Amendment protection that guarantees suspects the right to representation by an attorney when their liberty is in jeopardy.

2.     Effective Counsel: competent representation by an attorney. It is ineffective assistance of counsel when unprofessional errors would have changed the outcome of the case.

3.     Necessarily Included Offenses: (“lesser” included offenses); offenses that are, by definition, included in a charge as part of another (more serious) offense.

4.     Nolle Prosequi: a decision by a prosecutor no to press charges; also known as nol. pros.

5.     Diversion Programs: alternatives to the formal criminal justice process that are implemented after charging but prior to adjudication; they attempt to achieve a noncriminal disposition of the case.

6.     Pretrial Intervention (PTI): a type of diversion program in which a prosecutor suspends prosecution of a case pending the fulfillment of special conditions by the defendant. If these conditions are met, the case id dismissed.

7.     Plea Bargaining: an agreement by a prosecutor to press a less serious charge, drop some charges, or recommend a less severe sentence if the defendant agrees to plead guilty.

8.     Speedy Trial Act: legislation requiring that all criminal cases be brought to trial within one hundred days.

9.     Caseloads: the large number of cases to be adjudicated in the courts.

10.  Case Mortality: case attrition, in which arrests do not result in convictions for various reasons.

11.  “Three Strikes” Laws: laws under which conviction for a third felony results in an extended sentence, up to life imprisonment.

12.  Pretrial Settlement Conference: a meeting of the prosecutor, defendant, counsel, and judge to discuss a plea before a trial is held. No plea negotiations can take place outside this setting.

13.  Crime Control Model: the perspective that views the repression of criminal conduct as the most important function to be preformed by the criminal justice system, through speed, efficiency, and finality in criminal justice processing.

14.  Due Process Model: the perspective that considers preservation of individual liberties to be the most important function of the criminal justice system, through accuracy, fairness, and reliability in criminal procedure.

Review Questions:

1.     1. What degree of discretion do prosecutors have in the disposition of cases? Explain.
            The degree of discretion prosecutors have in the disposition of cases is whether the case will be prosecuted and what charges will be pressed. In a case of armed robbery, for example, assault, larceny, and weapons charges could be in addition to robbery charges. The additional charges are called necessary included offenses (or “lesser” included offenses) because they are included as part of the other (more serious) offenses. After charges have been filed, the prosecutor can decide whether to press the charges any further or to reduce the charge(s) in exchange for a guilty plea.

1.     2. What are diversion programs? Give an example of such a program.
      Diversion programs are alternatives to the formal criminal justice process, implemented after a suspect has been charged but prior to adjudication. One example of the diversion program is the Pretrial Intervention (PTI).

2.    3.  What is plea bargaining? How long has it been used in the United States?
      Plea bargaining is an agreement by a prosecutor to press a less serious charge, drop some charges, or recommend a less severe sentence if the defendant agrees to plead guilty. Plea bargaining has long been used in the United States, historical records show.

3.     

4. What are some undesirable features of plea bargaining?
      Some of the undesirable features of plea bargaining is, plea negations are conducted in private; the rights of the accused and the interest of the community are not visibly balanced (as occurs in trial); and the public may not believe that justice is achieved.

4.     

5.What happens when mandatory sentences are combined with policies forbidding plea bargaining?
      Mandatory sentencing, when combined with policies forbidding plea bargaining, appears simply to shift discretion to other parts of the criminal justice system. First, a restrictive plea bargaining policy usually leads to a restrictive case-screening policy, so fewer cases –the strong ones- are prosecuted. Second, when sentences are mandatory, the bargaining focuses on the charges against the accused. Third, a combination of no-plea-bargaining policies and mandatory sentences leads to fewer arrests, fewer indictments, fewer connections, and more dismissals, trials (versus plea), and appears. Fourth, researchers have not found that harsh penalties have a deterrent effect on the commission of the offenses covered by the policies.

5.

6.      What are some proposed alternatives to plea bargaining?
            Some proposed alternatives for plea bargaining is eliminate undesirable aspects such as time limits, more public negotiations, better case-screening procedures, and reviews of plea agreement by a panel of judges.

6

7..     What problems are caused by increasing court caseloads?
      Problems caused by increasing court caseloads arise because of judicial vacancies. More than 100 positions for federal judges remain unfilled because of disagreement between the president and the senate about suitable candidates. Another contributing factor to higher federal caseloads is the “federalizing” of crimes previously handled by the states. The Congress dramatically increased the number of federal crimes; therefore, crimes once handled exclusively in state courts are increasingly being tried as violations of federal law. Despite the growing trend toward the use of mediation and pretrial intervention programs, new cases to outstrip the capacity of these programs to deal with them.

7.

8.     In what ways do the crime control and due process models conflict?
      The criminal court and due process model conflict, therefore, according to this view, accuracy, fairness, and reliability in criminal procedure are keys to a property functioning system. Proponents of the due process believe that careful attention to the rights of individuals-when a much more powerful government prosecutes individuals-is essential to ensure that only the guilty are convicted and that the public has a high level of confidence in the system

Chapter Ten.

Key Terms:

1. Expert witness: a person called to testify because of his or her expertise in an area at issue in a legal proceeding.

2. U.S. district courts:  federal trial courts of general jurisdiction.

3. U.S. courts of appeals:  intermediate federal appellate courts.

4. U.S. supreme court:  the highest court in the united states, which hears final appeals in cases involving federal law, suits between states, and interpretations of the U.S. Constitution.

5. Writ of certiorari: a legal order from the U.S. Supreme Court stating that a lower court must forward the record of a particular case for review.

6. Judicial review: The U.S. Supreme Court’s authority to review the constitutionality of acts of congress.

7. Prosecutors:  elected or appointed officials who represent the community in bringing charges against an accused person.

8. District attorneys: the name for city or county prosecutors in many jurisdictions.

9. Defense attorneys: Attorneys who represent the legal rights of the accused in criminal or civil proceedings.

10. Assigned counsel:  a private attorney appointed by the court on a case-by-case basis from a list of available attorneys.

11.  Contract attorney programs: programs in which private attorneys, firms, or local bar associations provide legal representation to indigent defendants for a specific period contracted with the county.

12.  Public defenders: salaried attorneys paid by the government to represent indigents charged with crimes.

13.  Judge: a person who objectively assesses the strength of a case, rules on issues of law and procedure, and in many cases determines the disposition of a case.

14.  Merit selection: a method for selecting judges that involves a combination of appointment and election.

15.  U.S. magistrates: Judges appointed by U.S. district court judges to conduct pretrial hearings and trials for minor civil and criminal offenses in federal court.

16. Victim impact statements: statements by victims to the judge before sentencing about how the crime has harmed them.

17.  Victim’s Bill of Rights: legal changes that formally recognize the role and rights of victims in the justice process.

18.  Courtroom work group: the prosecutors, defense counsel, judges, and other courtroom personnel who represent distinct interests but share the same goal of shepherding large numbers of cases through the adjudicating process.

19.  Felony drug courts: courts that handle only drug offenses and attempt to correct underlying causes of the illegal conduct.

20.  Dispute resolution: a method of handling complaints outside the judicial process through a mediator appointed by the court.

21.  Community prosecution: a program in which prosecutors intervene in all disorderly behavior that affects the quality of life in a neighborhood.

22.  Community courts: decentralized courts that respond to neighborhood conditions using citizen advisory committees, volunteers, and teen courts.

Questions For Review and Discussion

1. What are some of the most important differences between the way trials were conducted in the past and the way they are conducted today? - The absence of lawyers in most trials, even in felony trials. Minor cases were treated the same and people represented themselves. Defendants could not act as witnesses or take the stand in their own defense.

2. How are state court systems organized? - State courts only interpret state law. Three levels of jurisdiction: limited, general, and appellate.

3. What are U.S. district courts? - Federal trial courts of general jurisdiction.

4. What kinds of cases are heard by the U.S. Supreme Court? - Any case involving federal law, suits between states, and cases involving interpretations of the U.S. Constitution.

5. Describe the five main groups of participants in the judicial process. - Prosecutors are the only actor in the criminal justice system who is involved in all aspects of criminal justice processing from arrest through disposition. Defense attorneys ensure that their client’s legal rights are protected. Judges uphold the rights of the accused and arbitrating between the prosecution and the defense in criminal cases. Victims and witnesses voice their concerns at parole hearings and at sentencing.

6. What are some of the ways in which judges are selected in different states? - Magistrates, governor appointed, president appointed, and the legislature alone.

7. What is meant by state court unification? - When all the courts of the state work together.

8. What initiatives have been taken to give victims and witnesses a greater role in the criminal justice process? - Prosecutors have requested high bail and initiated aggressive prosecution of reported attempts at intimidation. 

9. What are the major challenges facing the justice system in the future? –The dispute resolutions