copyright © 2008 the mcgraw-hill companies, inc. all rights reserved. the administration of justice

Copyright © 2008 The McGraw-Hill Companies, Inc. All rights reserved.

The Administration of Justice


After completing this chapter, you should be able to: Identify the type of court structure in the U.S. and

describe its various components. Summarize the purposes of courts. Identify the most powerful actors in the

administration of justice and explain what makes them so powerful.

Summarize the types of attorneys available to a person charged with a crime.

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Describe the responsibilities of a judge. Describe the purposes of an initial appearance. Explain what bail is and describe the different

methods of pretrial release. Define grand jury and explain its purposes. Describe the purposes of the arraignment and

the plea options of defendants. Describe the interests served and not served

by plea bargaining. List and define the stages in a criminal trial.

3


The U.S. has a dual court system. Dual Court System: One system of state and local

courts and another system of federal courts. The only place where the two systems connect

is in the U.S. Supreme Court.

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The court’s jurisdiction is set by law and limited by territory and type of case.

There are several ways to describe a court’s jurisdiction: Jurisdiction: The authority of a court to hear and

decide cases. Original jurisdiction

Original jurisdiction: The authority of a court to hear a case when it is first brought to court.

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Appellate jurisdiction The power of a court to review a case for errors of

law. General jurisdiction

The power of a court to hear any type of case. Special jurisdiction

The power of a court to hear only certain kinds of cases.

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Subject Matter Jurisdiction The power of a court to hear a particular type of

case. Personal jurisdiction

The court’s authority over the parties to a lawsuit.

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The authority for the federal court system is in the Constitution.

The system includes: The Supreme Court The federal courts of appeals The federal district courts

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Forming the base of the federal court structure are the U.S. district courts.

Two factors determine jurisdiction of federal district courts: Subject matter of the case—Federal district courts have

jurisdiction over cases involving federal laws, treaties with foreign nations, and Constitutional interpretation.

Parties to the case—Federal district courts have jurisdiction in cases involving ambassadors or other foreign government representatives, two or more state governments, the U.S. government, parties of different states or a different nation.

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Trials in federal district court are usually heard by a single judge.

Most cases in U.S. district courts are civil. Federal criminal cases involve:

Bank robbery Counterfeiting Mail fraud Kidnapping Civil rights abuses

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A party that loses a case in federal district court may appeal to a federal circuit court of appeals, or in some cases, directly to the U.S. Supreme Court.

Circuit courts of appeals review a case for errors of law, not of fact.

Federal courts of appeals also hear appeals of the rulings of regulatory agencies.

Normally, three judges sit as a panel to hear cases. Jury trials are not allowed.

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The U.S. Supreme Court is the court of last resort in all questions of federal law.

The Court may hear cases: Appealed from federal courts of appeals. Appealed directly from federal district courts. Appealed from the high court of a state, if claims

under federal law or the Constitution are involved.

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The U.S. Supreme Court is composed of: A chief justice. Eight associate justices. Each member of the court is appointed for life by the

president and affirmed by the Senate.

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Courtesy of the Supreme Court Historical Society


In order for a case to be heard by the Supreme Court, at least four justices must vote to hear the case.

When the court decides to hear a case, they issue a writ of certiorari. A written order from the U.S. Supreme Court to a

lower court whose decision is being appealed, to send the records of the case forward for review.

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When the court decides a case, it can: Affirm the decision of the lower court and “let it

stand.” Modify the decision of the lower court, without totally

reversing it. Reverse the decision of the lower court, requiring no

further court action. Reverse the decision of the lower court and remand

the case to the court of original jurisdiction, for either retrial or resentencing.

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An imprisoned defendant whose appeal has been denied may try to have the Supreme Court review his or her case on constitutional grounds by filing a writ of habeas corpus. An order from a court to an officer of the law to

produce a prisoner in court to determine if the prisoner is being legally detained or imprisoned.

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The state courts have general power to decide nearly every type of case.

There are generally four levels of state courts: Trial courts of limited jurisdiction. Trial courts of general jurisdiction. Intermediate appellate courts. State courts of last resort.

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The trial courts of limited jurisdiction are usually referred to as “lower courts.”

The lower courts typically deal with minor cases, such as ordinance and traffic violations.

These cases often involve summary or bench trials. Trials without a jury.

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Lower courts are not courts of record. An appeal from a lower court requires a trial

de novo. A trial in which an entire case is reheard by a trial

court of general jurisdiction because there is an appeal and there is no written transcript of the earlier proceeding.

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These courts have the authority to try all civil and criminal cases and to hear appeals from lower courts.

They are courts of record. Some states have created specialty courts to

deal with certain types of crimes or chronic social problems.

Examples: drug courts, mental-health courts, collections courts, community courts, domestic-violence courts.

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Some smaller states have only one appellate court, the court of last resort, usually called the state supreme court.

However, many states have intermediate appellate courts to reduce the case burden on the state supreme court.

These appellate courts hear only appeals. They review cases for errors of law. They cannot refuse to hear any legally

appealed case.

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In most states, the court of last resort is called the state supreme court.

The primary responsibility of state courts of last resort is to hear appeals from either trial courts of general jurisdiction or intermediate appellate courts.

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Expert Ted Rubin outlines 10 purposes of courts:1. Do justice.2. Appear to do justice, providing due process

of law. The procedures followed by courts to ensure that a

defendant’s constitutional rights are not violated.

3. Provide a forum where disputes between people can be resolved justly and peacefully.

4. Censure wrongdoing.

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5. Incapacitation. The removal or restriction of the freedom of those

found to have violated criminal laws.

6. Punishment. The imposition of a penalty for criminal wrongdoing.

7. Rehabilitation. The attempt to “correct” the personality and

behavior of convicted offenders through educational, vocational, or therapeutic treatment and to return them to society as law-abiding citizens.

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8. General deterrence. The attempt to prevent people in general from

engaging in crime by punishing specific individuals and making examples of them.

9. Determine legal status.10. Protect citizens against arbitrary government

action.

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The three key actors in the court process are:1. The prosecutor.2. The defense attorney.3. The judge.

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The prosecutor is a community’s chief law enforcement official and is responsible primarily for the protection of society.

The prosecutor is the most powerful actor in the administration of justice. Prosecutors have the authority to: Decide whether to charge or not charge a person

with a crime. Decide whether to prosecute or not prosecute a

case. Determine what the charge will be.

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When a prosecutor elects not to prosecute, they enter a notation of nolle prosequi (nol. pros.). The notation placed on the official record of a case

when prosecutors elect not to prosecute.

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Ideally, prosecutors are supposed to charge an offender with a crime and to prosecute the case if after full investigation three, and only three, conditions are met: They find that a crime has been committed. A perpetrator can be identified. There is sufficient evidence to support a guilty

verdict.

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On the other hand, prosecutors are not supposed to: Charge suspects with more criminal charges or for

more serious crimes than can be reasonably supported by evidence.

Be deterred from prosecution because juries have refused to convict for certain types of crimes.

Prosecute because the public demands it. Prosecute because of political repercussions.

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Probably the most strategic source of power available to prosecutors is their authority to decide which cases to plea bargain. Justice in America is dispensed mostly through plea

bargaining.

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The practice whereby the prosecutor, the defense attorney, the defendant, and—in many jurisdictions—the judge agree on a specific sentence to be imposed if the accused pleads guilty to an agreed upon charge or charges instead of going to trial.

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Although the final decision on the amount (or opportunity for) bail rests with the judge, the prosecutor makes the initial recommendation.

By recommending a very high bail amount, a prosecutor can pressure a suspect to accept a plea bargain.

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Rules that mandate that a prosecutor provide defense counsel with any exculpatory evidence (evidence favorable to the accused that has an effect on guilt or punishment) in the prosecutor’s possession.

Perhaps the only weakness in a prosecutor’s arsenal of weapons is the legal rules of discovery. Defense attorneys are under no obligation to provide

prosecutors with incriminating evidence.

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Given the power of prosecutors in the administration of justice, the public can only hope that prosecutors wield their power wisely and justly.

Most of them do. Unfortunately, political considerations and

aspirations may cause some prosecutors to violate the canons of their position.

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The workhorses of the big-city prosecutor’s office are the assistant district attorneys who are hired by the prosecutor.

Most stay for only two to four years because of: Low pay. Little chance for advancement. Physical and psychological pressures. Boredom. Disillusionment with the process.

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According to a 2001 survey, there were 2,341 prosecutors’ offices in the United States. More than 79,000 attorneys, investigators, victim advocates, and support staff worked in those offices.

The total amount spent for prosecutorial services nationwide in 2001 was approximately $4.6 billion.

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The Sixth Amendment to the Constitution guarantees the right to the “effective assistance” of counsel.

Defendants have a right to counsel during: Custodial interrogations. Preliminary hearings. Police lineups. Trial. Some posttrial proceedings. Probation and parole revocation hearings.

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A defendant may waive the right to counsel and appear on his or her own behalf.

In the American system of justice, the role of defense counsel is to provide the best possible legal counsel and advocacy within the legal and ethical limits of the profession.

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Most lawyers are not well trained in criminal defense.

Many lawyers prefer to practice other, often more lucrative, areas of law.

All criminal defendants are entitled to an attorney even if they cannot afford a private attorney.

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There are only a few nationally known, highly paid, successful criminal lawyers.

Another small group of criminal lawyers defend professional criminals such as organized crime members, gamblers, pornographers, and drug dealers.

Most criminal lawyers struggle to make a decent living.

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Most successful criminal lawyers gain their reputations by their ability to “fix” cases, that is, get the best possible result through: Plea bargaining. Strategic uses of motions. Relationships with the prosecutor. A hearing before the “right” judge.

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A criminal lawyer’s time is his or her most valuable commodity.

Trials are time-consuming, therefore criminal lawyers often try to avoid trials.

Some attorneys resort to unethical (or illegal) practices to ensure that they are paid for their services.

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In some jurisdictions, defendants who cannot afford a lawyer are provided with a court appointed, private attorney.

If they are paid at all, court-appointed private attorneys are paid a nominal sum.

Many are not knowledgeable in criminal law.

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In many jurisdictions, people who cannot afford an attorney are provided with public defenders.

Public defenders are paid a fixed salary by the jurisdiction.

Although public defenders may have a conflict of interest because of their close working relationship with prosecutors and judges, most defendants prefer them because they specialize in criminal law.

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A relatively new and increasingly popular way to provide for indigent defense is the contract system.

Private attorneys, law firms, and bar associations bid for the right to represent a jurisdiction’s indigent defendants, and are paid a fixed dollar amount.

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At the end of the twentieth century, 90 percent of the nation’s 100 most populous counties had public defender programs, 89 percent had assigned counsel programs, and 42 percent had contract programs.

More than $1 billion were spent on indigent defense in the most populous counties in 1999.

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Judges have a variety of responsibilities in the criminal justice process: Determining probable cause. Signing warrants. Informing suspects of their rights. Setting and revoking bail. Arraigning defendants. Accepting guilty pleas. In some jurisdictions, managing their own courtrooms and staff. Allowing the jury a fair chance to reach a verdict on the

evidence presented.

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Judges in the United States share many characteristics. They are generally: White. Male. From upper middle-class backgrounds. Protestant. Better educated than most citizens. Over 50 years of age. Practiced privately before becoming judges.

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The two most common selection methods are: Election Merit selection

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In the merit selection process, also known as the “Missouri Plan.” The governor appoints judges from a list of qualified

lawyers compiled by a nonpartisan nominating commission.

After serving a short term, the judge faces an uncontested election in which citizens vote whether to keep the judge or not.

If voters elect to keep the judge, he or she serves a full term.

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In most jurisdictions, lower-court judges are not required to be lawyers or possess any special training.

However, nearly all states require judges on appellate and trial courts of general jurisdiction to be licensed attorneys.

Because many judges do not have experience with criminal law or procedure, many states require them to attend judicial training seminars.

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The screening process of pretrial stages eliminates from the judicial process about half of all the persons arrested.

Thus, a powerful “funneling” or screening process in the administration of justice eliminates about one-half of all persons arrested.

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Soon after most suspects are arrested, they are taken to the police station for booking. The process in which suspects’ names, the charges

for which they were arrested, and perhaps their fingerprints or photographs are entered on the police blotter.

Following booking, prosecutors review the facts and decide whether the suspect should be charged.

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If the prosecutor decides that a suspect is “chargeable,” the prosecutor prepares one of three types of charging documents: Complaint

A charging document specifying that an offense has been committed by a person or persons named or described; usually used for misdemeanors and ordinance violations.

Information A document that outlines the formal charge or

charges, the law or laws that have been violated, and the evidence to support the charge or charges.

Grand jury indictment A written accusation by a grand jury charging that one

or more persons have committed a crime.62


On rare occasions, the police obtain an arrest warrant from a lower-court judge prior to making an arrest. A written order directing law enforcement officers to

arrest a person. The charge or charges against a suspect are specified on the warrant.

After charges have been filed, the suspects are now defendants, and are brought before a lower-court judge for an initial appearance.

They are advised of the charges against them and their rights.

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For felonies, a hearing is held to determine whether the defendant should be released or held for a preliminary hearing.

If the defendant is to be held, bail may be set.

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The U.S. Supreme Court has held that a “prompt” judicial hearing is required in a warrantless arrest to determine if the officer had probable cause to make the arrest.

In 1991 (County of Riverside v. McLaughlin), the Court ruled that anyone arrested without a warrant may be held no longer than 48 hours before a judge decides whether the arrest was justified.

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A bail bond or bail allows suspects or defendants to remain free while awaiting the next stage in the adjudication process.

It is not a fine, but an incentive to appear. Bail Bond or Bail: Usually a monetary guarantee

deposited with the court that is supposed to ensure that the suspect or defendant will appear at a later stage in the criminal justice process.

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The amount of bail generally depends on: The likelihood that the suspect or defendant will

appear in court as required. The seriousness of the crime. The suspect’s prior criminal record. Jail conditions and overcrowding.

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If a judge believes that a suspect or defendant would pose a threat to the community, the judge can refuse to set bail.

This is called preventive detention. Holding suspects or defendants in jail without giving

them an opportunity to post bail, because of the threat they pose to society.

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For people who cannot afford to post bail, professional bonds people are available to post it for them for a nonrefundable fee, typically 10% of the required amount.

Bonds people are under no obligation to post a bond if they believe someone is a bad risk.

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In practice, most bail bonds people assume little risk.

Bonds people secure surety bonds from insurance companies to cover their financial liability.

Judges have the ability to vacate outstanding bonds, reliving bonds people of their financial obligations.

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Suspects who post their own bail get it all back after they appear.

If the suspect or defendant does not appear, the bail is forfeited and the judge issues a bench warrant or capias authorizing the person’s arrest. A document that authorizes a suspect’s or

defendant’s arrest for not appearing in court as required.

They cannot be released on bail again.

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When the crime is minor and suspects or defendants have ties to the community, they are generally released on their own Recognizance (ROR). A release secured by a suspect’s written promise to

appear in court. Other nonfinancial releases are:

Conditional release Unsecured bond

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Conditional Release A form of release that requires that a

suspect/defendant maintain contact with a pretrial release program or undergo regular drug monitoring or treatment.

Unsecured Bond An arrangement in which bail is set but no money is

paid to the court.

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If the decision is made to prosecute a defendant, in states that do not use grand juries, the prosecutor drafts a document called an information. The information outlines: The charge or charges. The law or laws violated. The evidence to support the charge or charges.

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A pretrial stage used in about half of all states and only in felony cases.

Its purpose is for a judge to determine whether there is probable cause to support the charge or charges imposed by the prosecutor.

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A preliminary hearing is both similar to a criminal trial and different. It is similar because:

Defendants can be represented by counsel. Defendants can call witnesses.

It is different because: The judge must only determine that there is probable cause

that the defendant committed the crime. There is no right to a jury.

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The alternative to filing an information is a grand jury.

Generally a group of 12 to 23 citizens who meet in closed sessions to investigate charges coming from preliminary hearings or to engage in other responsibilities.

A primary purpose of the grand jury is to determine whether there is probable cause to believe that the accused committed the crime or crimes.

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Before appearing before a grand jury, the prosecutor drafts an indictment. A document that outlines the charge or charges

against a defendant.

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Because the grand jury has to determine only probable cause: Only the prosecution’s evidence and witnesses are

heard. In most jurisdictions, the defendant does not have a

right to be present. Prosecutors are allowed to present hearsay or

illegally obtained evidence.

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In addition, prosecutors have the authority to subpoena witnesses. A written order to testify issued by a court officer.

After hearing the prosecutor’s evidence and witnesses, the grand jury makes its probable cause determination and, usually, on a majority vote, either indicts (issues a true bill) or fails to indict (issues no bill).

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In practice, the grand jury system is criticized for merely providing a rubber stamp for whatever the prosecutor wants to do.

Suspects waive the right to a grand jury hearing in about 80% of cases.

Defendants may also waive the right to a grand jury hearing to speed up their trial date.

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At an arraignment, the most common plea is “not guilty.”

Defendants may also plead “guilty.” In some jurisdictions, defendants may

plead: Nolo Contedere. Not guilty by reason of insanity. Or stand mute.

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Arraignment A pretrial stage Its primary purpose is to hear the formal information

or indictment and to allow the defendant to enter a plea.

Nolo Contedere Latin for “no contest.” When defendants plead nolo, they do not admit guilt,

but are willing to accept punishment.

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Justice in the U.S. is dispensed mostly through plea bargaining.

There are three basic types of plea bargains: The defendant may be allowed to plead guilty to a

lesser offense. A defendant who pleads guilty may receive a lighter

sentence. A defendant may plead guilty to one charge in

exchange for the prosecutor’s promise to drop another charge.

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The bargain a prosecutor will strike generally depends on three factors:

1. The seriousness of the offense.2. The defendant’s criminal record.3. The strength of the prosecutor’s case.

There is neither a constitutional basis nor a statutory basis for plea bargaining.

Plea bargaining developed out of custom, but has been upheld by the Supreme Court.

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Plea bargaining is widely used because of several factors: It reduces uncertainty in the criminal justice process. It serves the interests of the participants:

Prosecutors get high conviction rates. Judges reduce their caseload. Defense attorneys spend less time on each case and avoid

expensive trials. Defendants get lighter sentences than they might have

gotten from juries, and can avoid conviction on stigmatizing crimes such as child abuse.

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Two types of criminal defendants are not served by plea bargaining: Innocent, indigent, highly visible defendants who

fear being found guilty of crimes they did not commit.

Habitual offenders. Prosecutors use “three strikes” laws as bargaining chips to force repeat offenders to accept guilty pleas.

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One of the distinctive features of criminal justice in the U.S. is trial by a jury of one’s peers.

A jury trial is an adversarial process in which the state must show, beyond a reasonable doubt, that the defendant is guilty.

The judge or jury must determine and assign guilt.

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Only about 5% of cases are resolved through a jury trial.

90% are resolved through a guilty plea. 5% are decided by a judge in a bench trial.

A trial before a judge without a jury.

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The purposes of trial by jury are: To protect citizens against arbitrary law

enforcement. To prevent government oppression. To protect citizens from overzealous or corrupt

prosecutors and from eccentric or biased judges. Jury trials are relatively rare. When jury trials are used, seldom is the jury

composed of peers.

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Jury pools are often drawn from voter roles, which exclude people not registered to vote, often including: The poor. The poorly educated. The young. People of color.

Today, some jurisdictions use multiple source lists for obtaining jurors.

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From the master list of all eligible jurors, people are randomly chosen for the venire. The pool from which jurors are selected.

Those chosen are summoned for service. Many will be eliminated because they do not

meet basic requirements for citizenship, etc. Many will be excused for financial hardship or

other reasons.

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From the venire, as many as 30 people are randomly selected by the court clerk for the jury panel from which the actual trial jury is selected.

Potential trial jurors go through voir dire, during which the defense, prosecution, and judge question jurors about their backgrounds and knowledge of the case. Voir Dire: The process in which potential jurors who

might be biased or unable to render a fair verdict are screened out.

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Potential jurors can be eliminated by either the defense or prosecution in two ways: “for cause”—the juror appears to be biased or unable

to render a fair verdict. By use of a peremptory challenge—the prosecutor or

defense can excuse jurors without having to provide a reason.

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Traditionally, a jury in a criminal trial consists of 12 citizens plus one or two alternates who will replace any jurors unable to continue.

Recently, primarily to reduce expenses, some states have gone to six-, seven-, and eight-member juries in noncapital criminal cases.

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Before a criminal trial formally begins, attorneys in about 10% of felony cases file pretrial motions.

Common motions ask for: Discovery of evidence. Suppression of evidence.

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The prosecution must establish beyond a reasonable doubt each element of the crime.

If the defense feels the prosecution has not made its case, it can rest and ask for a directed verdict or make a motion for dismissal.

If the case is not dismissed, and the defendant at that point is not acquitted, the defense presents its case.

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Both the prosecution and defense have the opportunity to: Offer rebuttals. Cross-examine witnesses. Re-examine witnesses.

Finally, both prosecution and defense summarize their case in a closing statement.

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The judge normally instructs the jury on: What principles of law to consider in judging the

case. The charges. The rules of evidence. Possible verdicts. The jury then withdraws and deliberates.

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If the jury cannot agree beyond a reasonable doubt that the defendant has committed the crime, it acquits.

If the jury cannot reach a unanimous verdict, the result is a hung jury. The result when jurors cannot agree on a verdict. The judge declares a mistrial. The prosecutor must decide whether to retry the

case.

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copyright © 2008 the mcgraw-hill companies, inc. all rights reserved. the administration of justice

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