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Week 6 notes

by: Nicole Wolfe

Week 6 notes CJ 342

Nicole Wolfe

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About this Document

These notes cover the second half of chapter 2 notes and the first part of chapter 17 notes.
Criminal Procedure
Kristi Venhuizen
Class Notes
Criminal Justice
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This 5 page Class Notes was uploaded by Nicole Wolfe on Thursday March 3, 2016. The Class Notes belongs to CJ 342 at University of North Dakota taught by Kristi Venhuizen in Spring 2016. Since its upload, it has received 39 views. For similar materials see Criminal Procedure in Criminal Justice at University of North Dakota.

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Date Created: 03/03/16
Chapter 2 part 2 and Chapter 17 part 1 State Court System  Courts of general jurisdiction o Ex: district court or superior court  Courts of limited jurisdiction o Ex: municipal court, juvenile court  Appellate courts o Ex: courts of appeal, supreme court  N.D.C.C. 27-02.1-01  N.D.C.C. 27-02.1-02 Juvenile Justice System  Delinquency – acts that would be criminal if conducted by an adult  Status offense (unruly) – particular to the status of juveniles  Historical basis: o Common law – 14 and older were treated as adults o Parens Patriae – the power of the state to protect the interests of those who cannot protect themselves o Late 19 century there was a public outcry against treating children like adults o Focus shifted to rehabilitation o By 1945 every state had a juvenile court  Proceedings were treated as civil  Not many procedural protections  In re Gault, 387 US 1 (1967) o Required courts to provide due process o Right to counsel o Freedom from self-incrimination o Right to confront witnesses  Juveniles are not entitled to a jury trial  Juveniles are not entitled to a “public trial” o Courts have discretion in this area the Supreme Court has stated that the Constitution does not require that all differences regarding how we treat juveniles be eliminated Correction System  Provide punishment and rehabilitation  Historical background: o English common law – severe punishment o American Revolution – death penalty and corporal punishment o Eighth Amendment – prohibits cruel and unusual punishment o Penitentiary th  20 century: o Incarceration o Death penalty o Variety of punishments available today  Fines, incarceration, probation, community service o Rehabilitation  Prison population o Punitive sentencing policies o Public demands Chapter 17: The Pretrial Process US Constitution guarantees due process to all persons accused of criminal offenses  Fair notice of criminal charges  Adequate opportunity to contest the charges The degree of due process depends on the seriousness of the crime Defined by state and federal Constitutions subject to court interpretation  Criminal procedural has developed significantly Pretrial process  Includes the following: o Initial appearance o Preliminary hearings o Grand jury proceedings o Arraignment o Pretrial Motions  Act to eliminate cases with insufficient evidence and create orderly resolution of cases Right to counsel  Essential to preserving the fundamental fairness of criminal proceedings  Defense attorney does the following: o Represents the accused at pretrial o Advises on strategy o Serves as a negotiator  Deemed by any as the most essential right  Common law – no right to counsel for reason or felony o Did have right to counsel for misdemeanor o 1836 Parliament passed law recognizing the right to counsel for all criminal defendants  Meant you could hire a barrister o 1903 finally passed law providing counsel for indigents at public expense  Poor Prisoner’s Defense Act  Modern approach – Sixth Amendment provides the right to counsel in all criminal prosecutions o Evolved through judicial discussions and legislation o Defendants can employ an attorney for all federal prosecutions o Gideon v Wainwright (1963) – made the 6 amendment applicable to states What about the defendant too poor to hire an attorney?  Congress passed the Judiciary Act of 1790 providing counsel for indigents in capital cases if they requested  Powel v. Alabama, 287 U.S. 25 (1932) "Scottsboro case" - Supreme Court required the states to provide counsel to indigents in capital cases  Supreme Court eventually determined that the Sixth Amendment required federal courts to appoint counsel for indigents in all felony cases o Johnson v. Zerbsy, 304 U.S. 458 (1938)  Betts v. Brady, 316 U.S. 455 (1942) - Supreme Court refused to extend the right to counsel for felonies to the states determining it was not incorporates under the due process clause of the Fourteenth Amendment  1963 Supreme Court decided that the 14th Amendment requires states to provide counsel to indigent defendants in felony cases o Gideon v. Wainwright o Court recognized that attorneys in criminal courts are a necessity, not luxury o Law was made retroactive  Criminal Justice Act of 1964 - all indigent defendants in federal criminal cases are entitled to appointed counsel  1972 Supreme Court extended Gideon to all defendants sentenced to jail terms for misdemeanor crimes o Argersinger v. Hamlin, 407 U.S. 25 (1972) Actual Imprisonment Standard - Supreme Court decided that counsel should be appointed in  misdemeanor cases only if the defendants faced jail sentences o Scott v. Illinois, U.S. 367 (1979)  Possible jail sentence vs. actual jail sentence debate o Some states extended protections under Scott  Alabama v. Shelton, 535 U.S. 654 (2002) - no suspended sentences may be imposed if the defendant was not afforded the right of counsel  Critical Pretrial Stages (For all of these an appointed attorney is allowed): o Preliminary hearings o Lineups after charges have been filed o Post-indictment interrogations o Arraignments  Public Defender Systems vs. Ad Hoc Appointed Attorneys  N.D.R. Crim. P. 44 o The Right to Counsel Felony Cases. An indigent defendant facing a felony charge in state court is entitled to have counsel provided at public expense to represent the defendant at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right. From <>  Indigency: o Left to the discretion of the courts o If hiring an attorney would preclude the defendant from making bail o Financial information o Repayment?  Judge decides  Self-representation: o There is a constitutional right to represent yourself  Faretta v. California, 422 U.S. 80 (1975)  Not based on legal skill of knowledge o Can only waive your right to representation if you do so "knowingly and intelligently"  Judge must make sure that the defendant is aware of the dangers and disadvantages of self-representation  Faretta hearing o Not entitled to help from the judge  Standby counsel: o Can be available to answer questions by a pro se defendant o Can step in to complete the case if it becomes necessary to terminate the pro se defense because of misconduct  Cannot have a non-attorney represent you nor can you force an unwilling attorney to represent you  Ineffective Assistance of Counsel: o Supreme Court interprets the Sixth Amendment to guarantee effective assistance of counsel o Two prong test:  Performance prong - avoids conflict, advocates the client's case, brings skill and knowledge (Did they know what they were doing in court?)  Prejudice prong - defendant must show that but for counsel's errors the outcome would be different (because of the errors that occurred, the outcome was different) Disposition of Petty Offenses Offenses for which fines and short jail terms are imposed  o Includes minor misdemeanors and traffic  Decriminalized traffic violations o No authority to arrest o Citation issued o "Cite and release" statues  Can either pay the bond or consent the charge and request a hearing o Preponderance of the evidence  Traffic violations are handled as civil matters o No criminal record  Minor Misdemeanors: o Summary trial o Beyond a reasonable doubt  Counsel: o Can hire counsel o Many chose to represent themselves o Can get court appointed attorney if actually sentenced to jail terms Initial Court Appearance  Process to begin the formal charging process  3 important functions: o The charges must be read so that the accused knows exactly what the charges are. o The accused must be informed of relevant constitutional rights. o Determination whether the accused should be released pending trial or remanded to custody.  N.D.R.Crim.P. 5(a) and (b) o Tell them charges & their rights and then decide whether or not to give them a bail.  Once arrested the accused must be brought before the magistrate promptly o 24 o 48 hours o U.S. Supreme Court has found that 48 hours is reasonable  Can he held on a state charge before charged with federal crime o The requirement for prompt appearance does not apply until officially charged with the federal offense Pretrial Release and Detention  Pretrial release or granting bail: o Originated in English common law o Today controlled by statue or court rule  Forms of pretrial release: o Personal Recognizance (PR) o Release to custody of another o Posting an individual bond o Posting a s a surety bond (bail bond)  PR or ROR - accused is released on the assumption will show up for court appearances  Custody of another - released to custody of another - released to responsible person who supervises the accused to assure attendance at court appearances o Often the defense attorney acts as the agent  Posting an individual bond - the court collects a deposit from the accused to assure appearance in court  Posting a surety bond (bail bond) - professional bail bond agent collect a fee from the accused and post the bond on their behalf (or surety) o Skip tracers or bounty hunters then locate the accused and bring them to court if the accused does not show up when required to do so  The court may place any other conditions deemed reasonable on a pretrial release  Criteria for release: o Flight Risk - must strike a balance between ability to pay and ensuring appearance in court o Dangerousness - court may deny bail or set amount high because purpose to protect society o Financial Status - must consider ability to pay  N.D.C.C. 29-08-01  N.D.C.C. 29-08-02  N.D.C.C. 29-08-28  N.D.R. Crim. P. 46


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