Criminal Justice:Chapter 8-9 Reading Notes
Criminal Justice:Chapter 8-9 Reading Notes 75073 - CRIM 100 - 003
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75073 - CRIM 100 - 003
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Date Created: 10/01/15
Crim 100 Week 5 Notes (8&9) 10/1/15 12:09 PM Chapter 8: Policing: Issues and Challenges Police Personality and Culture • New police officers learn appropriate behavior through veterans o Police subculture—informal values which characterize the police force as a distinct community with a common identity o “streetwise”—cops know what the official policy is but they also know the most efficient way to get a job done • police working personality o all aspects of the traditional values and patterns of behavior evidenced by police officers who have been effectively socialized into the police subculture. o Characteristics of the police personality often extend to the personal lives of law enforcement personnel • Two sources of police personality o Components of police personality already exist and draw them toward police work o Police personality can be attributed to the socialization into the police subculture that rookie officers experience Corruption and Integrity • Police corruption o The abuse of police authority for personal or organizational gain • Policing is an occupation with many opportunities for misconduct • Effects of police corruption are far-reaching o Affects the officer, the community, the police department, and all other police departments and officers in America and sometimes the world. • Corruption ranges from minor offenses to serious violations in the law • “occupational deviance”—motivated by the desire for personal benefit • “abuse of authority” –occurs to further the organizational goals of law enforcement • Police deviance: unprofessional on and off duty misconduct, isolated instances of misuse of position, improper relationships with informants or criminals, sexual harassment, disparaging racial or sexual comments…etc. o Precursor to individual and organizational corruption • Knapp Commission o A committee that investigated police corruption in NYC in the early 1970s o “Grass eaters”—more common form of police corruption. Illegitimate activity that occurs form time to time in the normal course of policing. o “Meat eaters”—more serious form of corruption. Officers actively seeking illicit moneymaking opportunities. • Money—The Root of Police Evil? o Police officers’ low pay could be critical ingredient of the corruption mix o Working hand in hand with monetary pressures toward corruption o The financial and societal pressures on the police to profit from the drug trade will remain substantial • Building Police Integrity o High moral standards implemented in the police profession can help raise the level of integrity in any department § Through training and communication § Ethics training o International Association of Chiefs of Police create the Law Enforcement Oath of Honor § Statement of commitment to ethical behavior § Reinforce principles of the IACP’s Law Enforcement Code of Ethics o Internal affairs § Branch of police organization tasked with investigating charges of wrongdoing involving members of the department o Garrity rights—protections that officers have against self- incrimination in the face of questioning by internal affairs or superior officers • Drug Testing of Police Employees o IACP developed model drug-testing policy for police managers. It suggests: § Testing all applicants and recruits for drug or narcotics use § Testing current employees when performance difficulties or documentation indicates a potential drug problem § Testing current employees when they are involved in the use of excessive force or when they suffer or cause an on-duty injury § Routine testing of all employees assigned to special “high-risk” areas, such as narcotics and vice o Courts support drug testing based on a reasonable suspicion that drug abuse has been or is occurring o Those working for agencies with federal contracts are entitled to counseling and treatment before termination o Most issues regarding drug testing are resolved in court The Dangers of Police Work • Violence in the Line of Duty o Most officers who are shot are killed by lone suspects armed with a single weapon o In 2012, 119 officers were killed in the line of duty o 9/11 attacks resulted in greatest annual loss of life of on-duty officers ever • Risk of Disease and Infected Evidence o Increased risk with handling evidence and investigations o Biological weapon § Biological agent used to threaten human life o Routine criminal investigations hold potential for infection through minor cuts etc. § Risk for AIDS, hepatitis B, tuberculosis, and other diseases o “Persons with infectious diseases must be treated with the care and dignity we show all citizens” o Officers take courses on how to prevent contamination by blood borne infectious agents o Predictable concerns include § The need to educate officers about AIDS, anthrax and other serious infectious diseases § Responsibility of police departments to prevent the spread of AIDS and other infectious diseases in police lockups § The necessity of effective and nondiscriminatory enforcement activities and lifesaving measures by police officers in environments contaminated with active biological agents • Stress and Fatigue among Police Officers o Long-term stress may be the most dangerous and least visible of all threats facing law enforcement personnel today o Officers face often disturbing situations such as dealing with a child homicide victim or the survivors of vehicle crashes o Stress Reduction § Keeping an emotional distance from stressful events § Exercise, meditation, abdominal breathing, biofeedback, self hypnosis…etc… § Careful psychological screening should be done to better identify those who have a natural ability to cope with situations that others might perceive as stressful § Programs to help the families of officers’ deal with stress § Emotional Self-Care Training o Officer Fatigue § Police officers levels of fatigue are about six times higher than those who work normal shift jobs § Fatigue may contribute to police accidents, injuries and misconduct § Police departments should review policies, procedures, and practices that affect shift scheduling and rotation, overtime moonlighting, the number of consecutive work hours allowed, and the way in which the department deals with overly tired employees Police Use of Force • Police use of force o The use of physical restraint by a police officer when dealing with a member of the public • Police are authorized to only use the amount of force that is reasonable and necessary • Often referred to as “response to resistance” • Primarily use weaponless tactics • Excessive force o The application of an amount and/or frequency of force greater than that required to compel compliance from a willing or unwilling subject • Excessive force: shoving or pushing when simply grabbing a suspect would be adequate • Excessive use of force: phenomenon of force being used unacceptably often on a department-wide basis • Illegal use of force: situations in which the use of force by police violates a law or statute • Force factor: the level of force used by the police relative to the suspect’s level of resistance o Measures suspect’s level of resistance and officer’s level of force on an equivalent scale and then subtracts level of resistance from police force • Problem police officers o A law enforcement officer who exhibits problem behavior, as indicated by high rates of citizen complaints and use-of-force incidents and by other evidence • Deadly force o Force likely to cause death or great bodily harm. Also, the intentional use of firearm or other instrument resulting in a high probability of death. o One form of potential civil liability that has received a lot of attention in the recent years o Historically officers could use deadly force to prevent the escape of a suspected felon o Tennessee v. Garner § The use of deadly force to prevent the escape of all felony suspects whatever the circumstances is constitutionally unreasonable o Graham v. Connor § Established standard of “objective reasonableness” § Judgment of an officer if deadly force was used reasonably o Imminent danger standard restricts the use of deadly force to those situations in which the lives of agents or others are in danger § Defense of Life—agents may use deadly force only when necessary § Fleeing subject—deadly force may be used to prevent the escape of a fleeing subject if there is probable cause that they have committed a felony § Verbal warning—should be given before using deadly force § Warning shots—agents may not fire warning shots § Vehicles—agents may not fire weapons solely to disable moving vehicles o Stress and trauma comes along with using deadly force, and the retentions of shooting a suspect can greatly affect the officer o “suicide by cop” § direct confrontations: suicidal subjects instigate attacks on police officers for the purpose of dying § disturbed interventions: suicidal subjects take advantage of police intervention in their suicide attempt in order to die § criminal interventions: criminal suspects prefer death to capture and arrest • Less-Lethal Weapons o A weapon designed to disable, capture, or immobilize—but not kill—a suspect. o Occasional deaths do sometimes occur o Possible solution to “suicide by cop” o Pepper spray, Tasers, rubber bullets o Designed to give officers effective and safe alternatives to lethal force Racial Profiling and Biased Policing • Racial profiling o Any police-initiated action that relies on the race, ethnicity, or national origin rather than the behavior or the information that leads the police to the individual that has been identified to be engaged in criminal activity o Uses a persons race as the sole or predominate factor in determining criminal intent o “driving while black” o weakens the public’s confidence in the policeàdecreases police-citizen trust and cooperation • Behavioral profiling: makes use of a person’s demeanor, actions, bearing, and manner to identify an offender before he can act • Racially Biased Policing o The majority of officers are committed to serving all citizens with fairness and dignity o Intolerance for racially biased policing o Some police behaviors are mistaken for biased o PERF report gives recommendations to help police departments be free of bias § Ex) supervisors should monitor activity reports for evidence of improper practices and patters, cameras and communications in cars to determine any bias or other disrespect Police Civil Liability • Civil liability o Potential responsibility for payment of damages or other court-ordered enforcement as a result of a ruling in a lawsuit o Not the same as criminal liability • Two types: o State: the more common form of civil litigation involving police officers o Federal: increasing number of suits have been brought to the federal level in recent years • Common Sources of Civil Suits o Most common: assault, battery, false imprisonment, malicious prosecution o Failure to protect property in police custody o Negligence in the care of suspects in police custody o Failure to render proper emergency medical assistance o Failure to prevent a foreseeable crime o Lack of due regard for the safety of others o Failure to aid private citizens o Inappropriate use of deadly force o Racial profiling o Patterns of unfair and inequitable treatment o Departments can protect themselves from lawsuits through proper training and regulations • Federal Lawsuits o Civil suits charging police misconduct of which are tried in federal courts are called 1983 lawsuits § A civil suit brought under Title 42, Section 1983, of the US Code against anyone who denies others their constitutional right to life, liberty, or property without due process of law o Ex) shooting suspects under questionable circumstance— denying their right to life o Bivens action § A civil suit, based on the case of Bivens v. Six Unknown Federal Agents brought against federal government officials for denying the constitutional rights of others o Sovereign immunity: governing body can’t be sued because it makes the law and therefore can’t be bound by it § Immunity is much more complex today § Some states have discarded it § Federal Tort Claims Act: grants broad immunity to federal govt. agencies engaged in discretionary activities § U.S Supreme Court supports a type of qualified immunity for individual officers ú Shields law enforcement officers from constitutional lawsuits if reasonable officers believe their actions to be lawful in light of clearly established law and the information the officer possess. ú Two pronged tests to determine constitutional violations by government agents • Court must decide whether the facts show that the defendant’s conduct violated a constitutional right • Court must decide if that right was clearly established o Criminal chargers can be charged against officers who overstep legal boundaries or who violate a set of standards § Federal law officers not immune from state prosecution § Liability insurance protects police departments from civil lawsuits o Proper training, better screening, treating people fairly, and close supervision reduce likelihood of lawsuits Chapter 9: The Courts: Structure and Participants Intro: Without the court system, the activities of law enforcement officials would be useless. History and Structure of the American Court System • Two court systems: o Federal court system § The three-tiered structure of federal courts, comprising U.S district courts. U.S courts of appeal, and the U.S Supreme Court o State court system § A state judicial structure. Most states have at least three court levels: trial courts, appellate courts, and a stat supreme court. • U.S has a fairly loose federation of semi-independent provinces • State legislatures can create own laws • Recently, states’ rights have decreased in relation to the power of the federal government • Jurisdiction o The territory, subject matter, or people over which a court or other justice agency may exercise lawful authority, as determined by statute or constitution. The State Court System The Development of State Courts • By 1776 all of the American colonies had established fully functioning court systems. • After American revolution, state court systems weren’t uniform o No distinction between original jurisdiction and appellate jurisdiction § 1. The lawful authority of a court to hear or act on a case from its beginning and to pass judgment on the law and the facts. The authority may be over a specific geographic area or over particular types of cases § 2. The lawful authority of a court to review a decision made by a lower court • Increase in civil litigation and criminal arrests by late 19 th century o States created multiple levels of courts and tribunals • State court systems developed by following several models: o New York State Field Code of 1848 o Judiciary Act of 1789 and Reorganization Act of 1801 o Federal three-tiered structure § Trial courts of limited jurisdiction § Trial courts of general jurisdiction § Appellate courts State Court Systems Today • American Bar Association and American Judicature Society led movement toward simplifying the state court structures. o Unify courts that held overlapping jurisdictions o Focused on: § Centralized court structure composed of a clear hierarchy of trial and appellate courts § The consolidation of numerous lower-level courts with overlapping jurisdictions § Centralized state court authority that would be responsible for budgeting, financing, and managing all courts within a state • Non-reform, or traditional, states keep judicial systems that are a mix of multilevel redundant courts with poorly defined jurisdictions • State Trial Courts o Where criminal cases begin o Conducts arraignments, set bail, takes pleas, conducts trials o Lower level courts: limited jurisdictions, deal with less serious criminal cases, rarely hold jury trials, no detailed records kept, less formal o High courts, circuit courts, superior courts: General jurisdiction, can hear any criminal cases, provide first appellate level for lower courts, trial de novo, operate within the adversarial process—fact finding framework—contstrained by procedural rules. § 1. “new trial” applied to cases that are retried on appeal, as opposed to those that are simply reviewed on the record • State Appellate Courts o Court of appeals, and state supreme court o High level appellate courts are called courts of last resort § The court authorized by law to hear the final appeal on a matter o Appeal § The request that a court with appellate jurisdiction review the judgment of a lower court and reverse it or modify it § Review the case on the record, do not hold a new trial § State laws usually require that death sentences or life imprisonments be automatically reviewed by the state supreme court § Most convictions are affirmed on appeal ú A second appeal may be taken to the US Supreme Court but it must be based on the claimed violations of the defendant’s rights guaranteed by federal law or the constitution. • State Court Administration o Courts need funding, staffing, support personnel, and coordination between jurisdictions in order to run properly o State court administrators § A coordinator who assists with the case-flow management, operating funds, budgeting, and court docket administration § Receive assistance from the National Center for State Courts o At the federal level, courts are administered by the Administrative Office of the United States Courts § Prepares budgets and legislative agenda for federal courts § Performs audits of court accounts, manages funds, compiles and publishes statistics on the volume and type of business conducted by the courts, recommends plans and strategies to manage court business. • Dispute-Resolution Centers and Specialized Courts o Make it possible to resolve minor disputes without a formal court hearing o Dispute-resolution centers § An informal hearing place designed to mediate interpersonal disputes without resorting to the more formal arrangements of a criminal trial court § Staffed by volunteer mediators § Resolve disagreements without placing blame § Substantially reduce the caseload of lower-level courts § Some are run by the courts with court-ordered referrals § Some are semiautonomous but depend on courts for endorsements of their decisions § Some are completely autonomous o Community courts § A low-level court that focuses on quality-of-life crimes that erode a neighborhood’s morale. § Emphasize problem solving rather than punishment § Build on restorative principles like community service and restitution o Specialized courts § Low-level courts that focus on relatively minor offenses and handles special populations or addresses special issues such as reentry. § Often a form of community courts § Focus on cases involving veterans, mentally ill, homeless, or sex offenders § Provides counseling and treatments for those with mental illness instead of jail time § Gun courts, domestic violence courts, DUI/DWI courts, and drug courts. § Motivated by two goals: ú Case management: court works to expedite case processing and reduce caseloads, as well as to reduce time to disposition ú Therapeutic jurisprudence: court works to reduce criminal offending through therapeutic and interdisciplinary approaches that address addiction and other underlying issues without jeopardizing public safety and due process § Problem-solving model: address root causes of crime, whether they lie with the individual, community, or the larger culture. The Federal Court System • Federal courts were created by the constitution • Have jurisdiction over cases arising under the Constitution, federal laws, and treaties • Deal with cases between states and have jurisdiction in cases where one of the parties is a state • 3 levels o U.S District Courts o U.S Courts of Appeals o U.S Supreme Court U.S District Courts • Trial courts of the federal court system • 94 federal judicial districts • each districts includes a U.S bankruptcy court • two special trial courts with nationwide jurisdiction o The Court of International Trade o U.S Court of Federal Claims • Have original jurisdiction over all cases involving violations of federal statutes • District court judges are appointed by the president, confirmed by the senate and they serve for life U.S Court of Appeals • 94 judicial districts are organized into 12 regional circuits, each with one U.S Court of Appeals • hears appeals from the district courts in its circuit • Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in special cases • Often referred to as circuit courts • Consists of six or more judges o Appointed for life by president and consent from senate • Chief Judge: served on the court the longest and who is under 65 • Federal appellate courts have mandatory jurisdiction over the decisions of district courts within their circuits • Appeals usually fall under one of the three categories: o Frivolous appeals: have little substance, raise no significant issues, general disposed of quickly o Ritualistic appeals: brought because of demands of litigants, even though the probability of reversal is slim o Nonconsensual appeals: have major questions of law and police and there is considerable professional disagreement among the courts and within the legal profession U.S Supreme Court • Consists of 8 associate justices and 1 chief justice • Supreme Court Justices are nominated by president, confirmed by senate and serve for life • Greatest authority is judicial review o The power of a court to review actions and decisions made by other agencies of government • The Supreme Court Today o Reviews decisions from lower courts and accepts cases from courts of appeals and state supreme courts o Has limited original jurisdiction o Does not conduct trials except in disputes between states o To hear a case it issues a writ of certiorari to a lower court asking to send over the records of the case o Court elects to review only cases that involve a substantial federal question The Courtroom Work Group Professional Courtroom Participants • Two categories: o Professionals: courtroom actors, well versed in criminal trial practice, conduct the business of the court. Also called the courtroom work group § 1. the professional courtroom actors, including judges, attorneys, public defenders, and others who earn a living serving the court o Outsiders: only temporarily involved with the court; jurors, witnesses, defendants and victims The Judge • Judge o An elected or appointed public official who presides over a court of law and who is authorized to hear and sometimes to decide cases and to conduct trials • Primary duty of ensuring justice • Holds ultimate authority • Sentence offenders after verdict is reached • Judicial Selection o State judgeships won by popular election or political appointment § Criticized for allowing politics to enter the judicial arena o Missouri Plan: combines election and appointment § Also called merit plan of judicial selection • Judicial Qualification o Must have a law degree, be a license attorney, and a member of their state bar association o State sponsored training on courtroom procedure, evidence, dispute resolution, ethics etc… o National Judicial College: provides specialized training o Lower-level judges can be elected without educational and professional requirement • Judicial Misconduct o Judicial Councils Reform and Judicial Conduct and Disability Act § States procedures needed to register complaints against federal judges, and possibly begin process of impeachment of the bench. o Most states have their own commissions on judicial misconduct The Prosecuting Attorney • Prosecutor o An attorney whose official duty is to conduct criminal proceedings on behalf of the state or the people against those accused of having committed criminal offenses • Prosecutors supervise a staff of assistant district attorneys • Serve as quasi-legal advisors for local police departments • At the trial, they present the state’s case against the defendant o Prove guilt beyond reasonable doubt • Prosecutorial Discretion o The decision-making power of prosecutors, based on the choices available to them, in handling criminal defendants, scheduling cases for trial, acceptance of negotiated pleas. o Most important form of prosecutorial discretion lies in the power to charge, or to charge. o Prosecution dismisses from one-third to one-half of all felony cases o Prosecutors bring evidence before grand jury o Disclose evidence to the defense that relates to claims of guilt or innocence o Must disclose any evidence that the defense requests o Exculpatory evidence § Any information having a tendency to clear a person of guilt or blame o Prosecutor’s absolute immunity extends to: § A failure to properly train prosecutors § A failure to properly supervise prosecution § A failure to establish an information system containing potential impeachment material about informants • The Abuse of Discretion o Many types of discretionary decisions are always inappropriate § Guilty pleas to reduce charges, deciding not to prosecute friends etc. o Some prosecutors are more lenient towards female defendants o Gross misconduct is addressed by the state supreme court or the state attorney general o Professional Misconduct Review Unit: disciplines federal prosecutors who commit reckless or intentional misconduct • The Prosecutor’s Professional Responsibility o Prosecutors are expected to follow the Model Rules of Professional Conduct found in ABA o Serious violations can result in a prosecutor being disbarred from law o National District Attorney’s Office: allows prosecutors to have a voice in influencing public policy The Defense Council • A licensed trial lawyer hired or appointed to conduct the legal defense of a person accused of a crime and to represent him or her before a court of law • Represent the accused, test strength of prosecution’s case, make sure defendant’s rights aren’t violated, take part in plea negotiations, prepare defense for trial • Lawyers can’t reveal information that their clients have confided to them • The Criminal Lawyer o 3 categories of defense attorneys assist criminal defendants § private attorneys (retained council) ú have own legal practices or work for law firms § court-appointed counsel § public defenders • Court-Appointed Counsel o 6 thamendment guarantees criminal defendants the assistance of a council o state courts have to appoint counsel for defendants who can’t afford their own o drawn from a roster of all practicing criminal attorneys within that jurisdiction o loose connection to clients o public defender § An attorney employed by a government agency or sub- agency, or by a private organization under contract to a government body, for the purpose of providing defense services to indigents, or an attorney who has volunteered such service § Public defender system is the primary method used to provide indigent counsel for criminal defendants § Tend to plea bargain excessively o Contractual Arrangements § County and state officials get together with local criminal lawyers to provide for indigent defense on a contractual basis § Underfunded system—“plea’d ‘em and speed ‘em” o Defendants can wave their right to an attorney and represent themselves • The Ethics of Defense o Attorneys violate law and the standards of their profession if they knowingly misrepresent themselves or their clients o American Bar Association provides significant guidance in the areas of legal ethics and professional responsibility o Attorneys can reveal clients’ secrets in order to stop future deaths or to prevent substantial bodily harm o Lawyers duty to a clients is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth The Bailiff • The court officer whose duties are to keep order in the courtroom and to maintain physical custody of the jury • Critical role in courtroom security • National Center for State Courts plan for security: o assess existing and potential threats o identify physical strengths and weaknesses of existing courts o develop a comprehensive emergency response plan o be aware of the latest technologies in court security o build strong and effective partnerships among state courts, law enforcement agencies, and county commissioners Trial Court Administrators • Facilitate the smooth functioning of courts in a judicial district • All courts with five or more judges must create the position of court administrator • Provide uniform court management • Relieve judge of routine tasks • Juror management The Court Reporter • Creates reords of all that occurs during a trial • Appeals are based entirely on what went on in the courtroom The Clerk of Court • Maintains all records of criminal cases, all pleas and motions made before and after the actual trial • Prepares a jury pool, issues jury summonses, and subpoenas witnesses • Swears in witnesses • Serve as judge of probate Expert Witnesses • A person who has special knowledge and skills recognized by the court as relevant to the determination of guilt or innocence. • Can express opinions or draw conclusions in their testimony • Must demonstrate their expertise through education, work experience, publications, and awards • Their testimony usually introduces scientific evidence • Generally paid professionals • Daubert standard o A test of scientific acceptability applicable to the gathering of evidence in criminal cases Outsiders: Nonprofessional Courtroom Participants Lay Witnesses • An eyewitness, character witness, or other person called on to testify who is not considered an expert • Must testify to facts only and may not draw conclusions or express opinions • Subpoena o Written order issued by a judicial officer or grand jury requiring an individual to appear in court and give testimony or to bring material to be used as evidence • Everyone who testifies must do it under oath • Subject to cross examination • Many states pay witnesses for each day they spend in court • Victims’ assistance programs o An organized program that offers services to victims of crime in the areas of crisis intervention, and follow-up counseling and that helps victims secure their rights under law. Jurors • A member of a trial or grand jury who has been selected for jury duty and is required to serve as an arbiter of the facts in a court of law • Render verdicts • Jury duty is a responsibility of citizenship • Peer juries: composed of a representative cross section of the community in which the alleged crime occurred and where the trial is held The Victim • Victims (if alive) have little, if any participation in the trial process • Sometimes unaware of the final outcome of a case • Experience many hardships: o Uncertainty as to their role in the criminal justice process o General lack of knowledge about the criminal justice system, courtroom procedure, and legal issues o Trial delays that result in frequent travel, missed work, and wasted time o Fear of the defendant or of retaliation from the defendant’s associates o The trauma of testifying and of cross-examination The Defendant • Defendants must be present at their trials • Defendants charged with similar or related offenses can be tried together • Defendants have choice in: o Selecting and retaining counsel o Planning a defense strategy in coordination with their attorney o Deciding what information to provide to the defense team o Deciding what plea to enter o Deciding whether to testify personally o Determining whether to file an appeal if convicted Spectators and the Press th • 6 Amendments requires a public trial • press reports can create problems for the justice system • Defendants right to a fair trial and impartial jury ensured by: o Change of venue § Movement of a trial or lawsuit to another jurisdiction. o Trial postponement § Allows memories to fade and emotions to cool o Jury selection and screening § Eliminates biased people from jury pool • Different states and courts have different rules regarding cameras and filming of cases • Increased technology and smartphones threaten courtroom privacy 10/1/15 12:09 PM 10/1/15 12:09 PM
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