Transcript Justice Process - University of Nebraska–Lincoln

1. Legislative Process
2. Field Investigation
3. Police Station Process
4. Complaint Authorization
5. Initial Appearance
6. Preliminary Hearing
7. Arraignment
8. Misc. Pretrial Hearings, Motions and Strategies
9. The Trial
10. Sentencing
11. Post Sentencing/Appellate Phase
12. Corrections
13. Cleansing
Declare certain acts illegal
 Establish penalties
 Substantively create the justice system
 Establish the process/the legal
procedures
 Outline the legal rights
 Finance the system



Non interventionist strategy
(wiretapping, observation, interviews)
Interventionist strategy
A. Informal (temporarily detain, stop and frisk,
street informant)
B. Formal (arrest, cite, search and seize,
indict, informant/immunity)
Cite and release
 Street arrest, release and stable

To get through all 13 steps, we must
assume the worst. Few cases go through
all the steps. Most are short-circuited out
somewhere along the way.
Booking
 Interrogation
 Line up identification
 Mugging
 Inventory
 Station house bail
 Contact an attorney
 Police administration decision

County Attorney/District Attorney
 Probable Cause vs Beyond Reasonable
Doubt
 2/3 never filed/dismissed

Complaint not filed
50
50 left
Dismissed later
15
35 left
Reduced to Misd.
20
15 left
11 are plea bargained to a felony
 4 go to trial:

A. 3 result in a conviction
B. 1 results in an acquittal
Minor Trial Court.
 Without unnecessary delay.
 Habeas Corpus right.
 Court procedures:
1. Charges are formally levied by the prosecutor with
the court.
2. Charges and potential penalties are communicated
by the court to the defendant.
3. Rights are communicated and fulfilled.
4. A plea is entered.
5. A decision is made as to the next step.
6. Bail is considered.

Guilty
Not Guilty
Sentenced Sentencing
Date
Trial Date
Bail?
Bail?
Guilty
Not Guilty
Sentenced Sentencing
Date
Preliminary Hearing
No
Yes
Bail?
Trial Date
Bail?
Preliminary
Hearing
Date
Bail?
Amount of bail varies with the severity of
the offense and the characteristics of the
accused.
 Defendant retains a criminal liability; just a
release pending future court processing.
 Different pre-trial release/bail options
a. Bond yourself out
b. Bail Bond agent
c. 10 percent system
d. ROR/PTR bond


Stack v. Boyle (fail to appear test) - Bail may be
denied if there is probable cause to believe that
defendants will fail to appear at future judicial
proceedings.

U.S. v. Salerno (dangerousness test) - Bail may be
denied if there is clear and convincing evidence that
defendant are dangerous and pose a threat to the
community at large and the court participants in
particular.

Taylor v. Taintor - Bail bond agents may use physical
force to capture their bondees who have skipped bail,
as long as the force used is reasonably related to the
custody and/or transportation of the bondees.
Mini-trial
 Minor Trial Court
 No jurors
 State presents evidence/defense cannot

1. Shred
2. Shotgun
Probable cause the standard
 Judge issues a bind over/case is bound
over for trial



Case is bound over for trial
Judge dismissed the case for lack of
evidence:
1. Individuals are free (subject to the
statute of limitations)
2. Prosecutor may file new charges
3. Prosecutor may re-authorize the same
complaint
4. Prosecutor may file a writ of information
5. Prosecutor may turn evidence over to a
grant jury
12 to 23 citizens
 Meet in secret
 Prosecution or Grand Jury appointed
prosecutor presents evidence
 Witnesses testify
 Probable cause
 True bill or an indictment

Major Trial Court.
 Court Procedures:
1. Charges are formally levied by the
prosecutor with the court.
2. Charges and potential penalties are
communicated by the court to the
defendant.
3. Rights are communicated and fulfilled.
4. A plea is entered.
5. A decision is made as to the next step.
6. Bail is considered.

Wrestling match/Chess match analogy
 Possible hearings:
1. Continuance
2. Change of Venue
3. Discovery Hearing
4. Evidentiary Hearings (involk the
Exclusionary Rule)
5. Amicus Curiae

Brady v. U.S. - Plea bargaining is legal as
long as:
1. An attorney is present to protect the
defendant's rights.
2. The plea is voluntarily made.
3. The defendant has a full knowledge
of the consequences.
A. Judge or Jury?
1. Duncan v. Louisiana: defendants have
the right to trial by jury if the potential
sentence is more than six months of
incarceration
2 – Singer v. U.S.: defendants have no
Constitutional right to waive a jury trial
B. Jury selection process:
1. Dismissals for cause
2. Pre-emptory challenges
3. Scientific jury selection

Ideal Prosecutor Jury – white, male,
Republican, upper income, Protestant,
50 years of age or over, Pro-life

Ideal Defense Jury – persons of color,
female, Democrat, lower income, Jews
or Catholics, under age 30, teachers,
union members
C. Opening Statements:
1. State
2. Defense
D. The State’s Case:
1. Direct Exam
2. Cross Exam
3. Objections (sustained/over-ruled)
4. Badgering witnesses
5. The State rests
E. The Case for the Defense:
1. Direct Exam
2. Cross Exam
3. Objections (sustained/over-ruled)
4. Badgering witnesses
5. The Defense rests
F. The Rebuttal:
1. Direct Exam
2. Cross Exam
3. Objections (sustained/over-ruled)
4. Badgering witnesses
5. The State closes
G. Closing Statements:
1. State
2. Defense
3. State
Principle of Primacy and Recency
H. Instructions to the jury
I.
The jury deliberates:
1. sequestered
2. gag order
3. deadlocked jury
J. The verdict:
1. guilty as charged
2. guilty of a lesser charge
3. not guilty
4. hung jury
1. Competence of jurors:
A. General intelligence concerns
B. Amateurs in the legal process
2. Structural problems (no note taking, cannot ask
questions)
3. Juries depart from the law (nullification and
vigilanteeism)
4. Jury independence (no checks and balances)
K. Decision step:
1. Judge polls the jury
2. Judgment of acquittal option
3. Pre-sentence/sentencing hearing
date set
4. PSI ordered
5. Post Conviction bond considered
Pre-sentencing hearing
 Sentencing hearing
 Allocution option

Appellate or post-conviction bond
considered
 Possible appeals:
1. Substantive Sentence Appeal
2. Substantive Trial Appeal
3. Procedural Trial Appeal

Administrative Phase
 Supervisory Phase
 Release Phase

A. Expungement:
1. Waiting period
2. Behavioral requirements
3. Judicial branch
4. Automatic
B. Pardon/Clemency:
1. No waiting period
2. No behavioral requirements
3. Executive branch
4. Not automatic
Afford relief form undue hardship
 New evidence of innocence
 The defendant is deemed insane
 The offense was a crime of conscience
 The defendant has been rehabilitated

1. Expungement is Step 13, but, pardons
can be given from Step 2 on.
2. Hole in your resume
3. Pragmatic limitation (police/community
know who you are; stigma still there)