Criminal Litigation Exam 2

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Criminal Litigation Exam 2
2012-02-15 21:55:58
Criminal Litigation

Chapter 2
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  1. Attorney General Opinions
    A set of nonbinding advisory opinions on law
  2. Probation
    A judicial sentence that permits a convicted person to remain free as long as that person meets the conditions imposed by court
  3. Parole
    Release awarded to prison inmates after they serve part of their sentence
  4. Arrest
    The physical or implied seizure of taking into custody of a person by police, significantly restricting the persons freeddom of movement and subjecting him or her to the authority of the officer
  5. Book
    To record basic information including fingerprints and photographs from a suspect
  6. Initial appearance
    First court appearance where the judge informs the accused of the charges and basic rights to an attorney and to remain silent and sets bail
  7. Bail
    The amount of money or property that a defendant must post to be released assurance to the court that the defendant will return to court when required to do so
  8. Summary trial
    For minor charges a brief judicial inquiry of suspect and police to determine guilt
  9. Preliminary hearing
    Court appearance to determine if there is probable cause to believe that the defendant has committed the crime as charged
  10. Probable cause
    The quantum of reliable facts under the circumstances that justifies a resonable person to believe that which is stated or alleged more than a bare suspicion and less than evidence that would justify conviction
  11. Grand jury
    A body of citizens that hears evidence regarding possible criminal activity and decides whether that evidence is sufficient to bring accused to trial serves the same function as the preliminary hearing
  12. Arraignment
    An appearance before the judge where the charges as decided at the preliminary hearing or by the grand jury are read and plea is entered.
  13. Information
    Criminal charging document produced by a preliminary hearing
  14. Indictment
    Criminal charging document produced by the grand jury
  15. Plea bargain
    Negotiated settlement where the prosecutor reduces the charge number of charges or the recommended sentence in return for the defendants guilty plea
  16. Beyond a reasonable doubt
    The burden of proof borne by the state in a criminal trial proof of sufficient weight to exclude any other resonable explanation than the defendants guilt
  17. Acquit
    To find not guily of a crime
  18. Sentence
    Assessment of penalty for a crime
  19. Judgement of guilt sentence
    The document entered by the court after sentencing from which the defendant may appeal
  20. Writ of habeas corpus
    Prevents incarceration without justification requires law enforcement to present the individual before a judge to determine whether the person has been fairly convicted and incarcerated
  21. Adversary system
    A highly competitive issue resolving process in which two opposing sides attempt to provide the best information they can to convince the netural tribunal of judge or jury to decide the issue in their favor.
  22. Zealous representation
    The act of providing legal advice and services to a client by pursuing all possible remedies and defenses within the boundaries set by the law
  23. Judicial independence
    Objective impartial decision making free of political personal and corrupt influences including those of special interes groups
  24. Professional ethics
    • Rules of conduct that govern the practice of that profession
    • Ours is an adversarial system–Places the parties at odds to have the best chance to ascertain the truth–Best way to “do justice"
  25. Legal advice
    Independent professional judgment based on knowledge of the law and given for the benefit of a particular client may be offered only by an attorney
  26. Conflict of interest
    Two significant and opposed matters of duty or allegiance where to act favorably on one of the matters will or may appear to be detrimental to the other
  27. Pro bono
    Provision of free legal services to the poor
  28. Title 16
    Criminal Offenses (except traffic)
  29. Title 17
    Criminal Procedure
  30. Title 19
    Domestic Relations
  31. Title 24
  32. Title 35
    Law Enforcement
  33. Title 40
    Traffic Offenses
  34. Title 45
    Public Officials
  35. Structure of the Criminal Justice System
    • •Law Enforcement Agencies (Police)
    • •Prosecution/Prosecutors
    • •Defense/Defense Attorneys
    • •Corrections Agencies (Jail, Prison and Parole)
    • •Courts
  36. Law Enforcement Agencies
    • •Part of the executive branch
    • •Police agencies charged with preventing and investigating crime
    • •Have authority within constitutional limits to seizure property, detain people for questioning and arrest suspects
  37. Law Enforcement Agencies
    • •Nearly 40,000 agencies at the federal, state and local levels
    • •FBI - Largest law enforcement agency at the federal level–Arm of the Department of Justice–Responsible for preventing terrorism in the US & enforcing federal law (over 200 categories of crime)–56 field offices; 400 satellite offices; 45 liaison posts; 11, 400 special agents; $4 billion annual budget
  38. Law Enforcement Agencies
    • •FBI–Investigates murder, rape, burglary, etc. and internal security
    • involving espionage & counterespionage–Centralized records on persons committing felonies–Fingerprint, DNA and other identification detection banks (AFIS and CODIS)–Highly trained agents–Advanced criminal detection technology
  39. Other Professional Considerations
    • •Maintain mutual respect between employer and employee
    • •Report unethical behavior to the appropriate person
    • •Remain current and competent in the field in which you are working
  40. Confidentiality, Honesty, and Conflicts of Interest
    • •Tasks in the prosecutor’s office–Assist in post-trial process–Assist with the appellate process
    • •Conflicts of interest must be avoided or if they exist, they must be disclosed
    • •When does a conflict of interest arise?–When two significant and opposed matters of duty or allegiance occur and to act favorably on one of the matters will or may appear to be detrimental to the other
  41. What a Paralegal May Do
    • •Engage in tasks that are ministerial or involve information gathering
    • •Get the attorney’s approval for the final work product
  42. Things a Paralegal May Not Do
    • •Tasks delegated by an attorney
    • •Tasks performed under an attorney’s supervision
    • •Clearly communicate his or her status as a paralegal
    • •Avoid interfering with the attorney/client relationship; the attorney must retain control over the relationship
    • •Set fees for representation of a client
    • •Split legal fees with an attorney
    • •Be in a partnership with an attorney
    • •Perform tasks that require legal judgment without attorney supervision
    • •Solicit cases
  43. Paralegal Ethical Responsibilities
    • •Paralegal must conform to ethical standards
    • •Things paralegal may not do–Provide legal services without supervision of a licensed attorney–Give legal advice–Represent a client in court–Accept or reject cases for the law firm
  44. Role of the Paralegal •Tasks in the defense attorney’s office
    • –Initial interview with client as well as follow-up interviews
    • –Legal research
    • –Draft legal memoranda and briefs
    • –Investigate
    • –Draft motions
    • –Attend preliminary hearing and take notes–Assist in trial preparation
    • –Design and prepare exhibits
    • –Prepare trial notebook
    • –Assist in preparing the client and witnesses for trial
    • –Draft and serve subpoenas
    • –Assist at trial
    • –Prepare response to presentence report
    • –Draft post-trial motions
    • –Assist with appeal
    • –Serve as a resource person for defendant
  45. Role of the Paralegal
    • –Intake
    • •Interview those reporting criminal behavior
    • •Interview police officers or police reports
    • –Recommend preliminary charges
    • –Draft criminal complaint or other charging documents
    • –Attend court to record defendant’s plea
    • –Investigate to clarify investigation record
    • –Prepare for grand jury
    • –Take notes at hearing and trials
    • –Serve as a resource person for victims
    • –Do legal research and prepare documents
    • –Prepare trial notebook
    • –Design and prepare exhibits
    • –Prepare witnesses for trial
    • –Assist at trial
    • –Assist in post-trial process
    • –Assist with the appellate process
  46. Role of the Judge
    • •The judge plays a crucial role in the criminal justice system
    • •While a judge is responsible for many things, maintaining neutrality is among the most important
    • •It is also the judge’s role to maintain decorum in the courtroom
    • •ABA Standards are outlined in textbook
  47. Role of the Defense Attorney
    • •Defense counsel’s obligation is to represent the client zealously
    • •ABA Standards
    • (a) Counsel for the accused is an essential component of the
    • administration of criminal justice. A court properly constituted to hear a criminal case must be viewed as a tripartite entity consisting of the judge (and jury, where appropriate), counsel for the prosecution, and counsel for the accused.
    • (b) The basic duty defense counsel owes to the administration of justice and as an officer of the court is
    • to serve as the accused's counselor and advocate with courage and devotion and to render effective, quality representation.
    • (c) Since the death penalty differs from other criminal penalties in its finality, defense counsel in a capital case should respond to this difference by making extraordinary efforts on behalf of the accused. Defense counsel should comply with the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases.
    • (d) Defense counsel should seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to defense counsel's attention, he or she should stimulate efforts for remedial action.
    • (e) Defense counsel, in common with all members of the bar, is subject to standards of conduct stated in statutes, rules, decisions of courts, and codes, canons, or other standards of professional conduct. Defense counsel has no duty to
    • execute any directive of the accused which does not comport with law or such standards. Defense counsel is the professional representative of the accused, not the accused's alter ego.
    • (f) Defense counsel should not intentionally misrepresent matters of fact or law to the court.
    • (g)Defense counsel should disclose to the tribunal legal authority in the controlling jurisdiction known to defense counsel to be directly adverse to the position of the accused and not disclosed by the prosecutor.
    • (h) It is the duty of defense counsel to know and be guided by the standards of professional conduct as defined in codes and canons of the legal profession applicable in defense counsel's jurisdiction. Once representation has been undertaken, the functions and duties of defense counsel are the same whether defense counsel is assigned, privately
    • retained, or serving in a legal aid or defender program.
  48. Role of the Prosecutor
    • •Primary role—to seek justice
    • •Duty to preserve fairness and protect innocence, not just seek a conviction
    • •ABA Standards
    • (a) The office of prosecutor is charged with responsibility for prosecutions in its jurisdiction.
    • (b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions.
    • (c) The duty of the prosecutor is to seek justice, not merely to convict.
    • (d) It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should stimulate efforts for remedial action.
    • (e) It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by applicable professional traditions, ethical codes, and law in the prosecutor's jurisdiction. The prosecutor should make use of the guidance afforded by an advisory council of the kind described in standard 4-1.5.
  49. Criminal Procedure
    • •Plea Bargaining
    • —a form of negotiated settlement resulting in
    • –Reduced charges
    • –Reduced number of charges
    • –Recommendation of a lesser sentence
    • •In return, defendant pleads guilty
    • •Trial
    • •Burden of proof at trial–Beyond a reasonable doubt
    • •Verdict–Guilty–Acquitted
    • •Sentencing
  50. Defense Bar
    • •Defense attorneys work for public agencies and private firms
    • •Defense attorneys are either–Appointed to represent the defendant and paid by the government
    • •Gideon v. Wainwright
    • •Argersinger v. Hamlin
    • –Or retained and paid by the defendant
  51. County and City Attorneys
    • •Local governments have attorneys to prosecute lesser offenses or ordinance violations
    • •Many also handle civil cases against local government and advise local officials
  52. State Prosecutors
    • •State Attorney General—an elected official
    • •Prosecutes criminal cases when individuals violate state laws
    • •Also involved in–Investigating consumer fraud–Legal education of the public–Handling criminal appeals
  53. Federal Prosecutors
    • •Attorney General of the United States
    • •Heads the Department of Justice
    • •U.S. Attorney’s Offices are found throughout the United
    • States
    • •Primary function: to prosecute individuals and corporations for federal crimes
  54. Prosecutorial Agencies
    • •Prosecutors represent the people in criminal matters
    • •Have discretion to–Decide criminal charges–Recommend diversion programs–Offer plea bargains–Recommend which juvenile should be waived to adult court–Recommend sentences–Decide whether to pursue the death penalty in
    • capital cases
  55. State Law Enforcement Agencies
    • •State police
    • •County sheriff’s department
    • •City police departments
  56. Other Federal Law Enforcement Agencies
    • •Bureau of Alcohol, Tobacco, Firearms and Explosives
    • •Drug Enforcement Administration
    • •Bureau of Post Inspection
    • •U.S. Marshals Service
    • •Department of Homeland Security
    • •Bureau of Indian Affairs
  57. Law Enforcement Agencies
    • •More than 35,000 federal and state law enforcement agencies in the United States
    • •Largest agency: FBI–Arm of Department of Justice–Enforces federal criminal law and prevents terrorism–Maintains national DNA database
  58. Criminal Procedure
    • •Arrest–Physical or implied seizure or taking into custody of a person
    • •Booking–Taking of basic information
    • •Initial appearance–Prosecutor’s office must file charges before the initial appearance–Judge informs accused of charges and basic rights
    • •Bail–Amount of money or property that the defendant must post for pre-trial release–Amount is set according to the seriousness of the crime and–Likelihood that defendant will return for next court appearance
    • •Misdemeanor charges—set for trial at this stage
    • •Felony charges—preliminary hearing is set–Hearing to show probable cause that defendant committed the crime–Failure to meet the burden of probable cause results in a dismissal of charges–Charges may be reinstated based
    • on additional evidence
    • •Other jurisdictions use a grand jury in place of a
    • preliminary hearing
    • •A grand jury is–A group of citizens that–Hears the
    • evidence and–Decides whether there is enough evidence to go to trial
    • •After the grand jury or judge has made a decision that there is enough probable cause to try the defendant, the defendant is arraigned
    • •An arraignment is a formal reading of the charges
    • •The documents outlining the charges are called:–An information (with a preliminary exam)–An indictment (with a grand jury)
  59. Jurisdiction
    • •States–Have jurisdiction over violations of state criminal law–Divided by counties, districts, or parishes
    • •Courts assigned to each area
    • •Crimes committed in the area prosecuted in assigned court
    • •Federal− Hear cases involving violations of federal criminal law and issues arising under the Constitution
  60. Criminal Court System
    • •Trial courts–Judges hear both criminal and civil matters
    • •Court of Appeals–Hear the appeals of right coming from the trial courts–Generally appeals are heard by panel of 3 judges
    • •Supreme Court–Highest court in the jurisdiction–Set precedent for their jurisdiction
  61. Corrections Agencies
    • •These agencies are responsible for jails and prisons
    • •State and federal governments have bureau of prisons or department of corrections–Operate the prisons–Establish policies/standards for operation
    • •These agencies also include probation/parole programs
  62. Law Enforcement Agencies
    • •Exceptionally demanding profession
    • •Split-second decision making with deadly consequences
    • •Citizen review boards
    • •Higher standards for training Law Enforcement Agencies
    • •Police officers have broad discretion
    • •Police officers need clear guidelines to avoid uneven and unfair enforcement of laws
    • •Must balance flexibility in decision making with need to prevent police abuse
    • •Must balance access to private information using technology with person’s right to keep some information private
  63. Law Enforcement Agencies
    • •State and Local Governments–Have divisions of agencies responsible for the investigation of crimes related to the agency’s jurisdiction–Examples
    • •Child welfare
    • •Agricultural production and transportation
    • •Mining and occupational safety
    • •Banking, insurance and consumer fraud
    • •Conservation and wildlife laws
  64. Law Enforcement Agencies
    • •Municipal or City Police Agencies–Limited jurisdiction in the city where the agency is located–Chiefs are appointed or civil service officials–Unified police departments are increasingly common
    • •Operate in merged city and county governments
    • •Examples: Athens-Clarke County; Columbus-Muscogee County
  65. Law Enforcement Agencies
    • •County Police Agencies–Usually Sheriff’s Departments–Sheriff is usually elected; oversees law enforcement activities of civil service employees–159 sheriffs in GA; one per county–Some jurisdictions have county-wide police departments as well as Sheriff’s Departments
    • •Examples: Clayton, Cobb, Dekalb & Fulton County Police
  66. Law Enforcement Agencies
    •State Police (GBI, Georgia State Patrol & Capitol Police)–Public education–Protection of public officials–Traffic enforcement–Prevention and investigation of all crimes covered by state law–GBI: Scientific testing, GCIC
  67. Law Enforcement Agencies
    • •Department of Homeland Security–Five major divisions or directorates
    • •Secret Service–Investigates offenses covering credit and
    • debit card fraud, computer fraud, counterfeiting, forgery of U.S. checks and bonds–Prevents and investigates attacks and threats on the lives of government officials
    • •Bureau of Indian Affairs–Responsible for law enforcement on Native American reservations
  68. Law Enforcement Agencies
    • •U.S. Marshals Service–Supports federal courts; serves subpoenas, civil papers and warrants
    • •Department of Homeland Security–Established in 2001 to respond to terrorism threats–Five major divisions or directorates
    • •Border and Transportation Security (BTS)–Includes TSA
    • (Transportation Security Administration) & U.S. Customs Service, Immigration and Naturalization Service
  69. Law Enforcement Agencies
    • •Bureau of Alcohol, Tobacco and Firearms–Enforces laws related to sale, possession, manufacture and shipping of alcohol, tobacco and firearms
    • •Drug Enforcement Administration–Covers the illegal production, sale, and possession of prescription drugs as well as street drugs
    • •Bureau of Postal Inspection–Investigates violations of postal regulations (mail fraud; theft of mail)