Criminal Procedure Questionnaire

Excerpt from Questionnaire :

Constitutional Violations

Two types of remedies that protect citizens against governmental wrong doing and ensure the projections of the Constitution are the Exclusionary Rule and Defense against Entrapment. The Exclusionary Rule means that any evidence that is illegally obtained (without probable cause, etc.) must not be used when prosecuting defendant. The idea is that any issue, statement or evidence illegally obtained is "fruit of the poisoned" tree and denies Constitutional protections. The Defense of Entrapment rule allows the Court to dismiss a case against defendants who commit crimes because they were encouraged or enticed to commit them by law enforcement officers (Samaha, 2008, pp. 335-6).

The five exceptions to the exclusionary rule are: 1) Collateral use allows illegally obtained evidence to be used in nontrial proceedings (bail hearings, preliminary hearings, etc.); 2) Cross-Examination may allow the prosecution to bring up illegally obtained evidence to impeach testimony; 3) Independent Source exlcusion allows for the evidence to be admissible if it is cooborated from another indicent that is separate from the current trial; 4) The Good Faith exception states that some evidence may be used if law enforcement honestly and sincerely believed they were obtaining it correctly; and, 5) Inevitable discovery notes that if the evidence would have been found by searchers or others legally and constitutes the same evidence the illegally obtained evidence may be used (Samaha, pp. 340-5).

3. The narrow definition of Good Faith assumes that law enforcement was reasonably unaware they were violating the Fourth Amendement in pursuing lawful duties. This is narrow because it requires a judgement that law enforcement believed an arrest warrant or search warrant was issued and had no reason to question their actions from a legal basis (Samaha, p. 346).

4. Qualified immunity or "good faith" defense means that a law enforcement agent cannot be sued or held liable for violations of Constitutional rights if: 1) the officer's actions met the test of being objective and reasonable in the pursuit of their duties, and 2) their actions were clearly established at the time of the action; e.g. they were regular and not exceptional towards certain clients. This is a fairly easy test to meet because law enforcement can fairly easily establish actions in the role of their duties.

5. Two differences between suits against individual state officers both fall under the idea of the tort system of law. One type surrounds the normal and functional duties performed to protect civil rights and immunity based on the effective need for law enforcement and that law enforcement's actions were based on the public's safety. Another is that there is an expectation that law enforcement will protect citizens and if actions create a special danger the state has failed to protect (Samaha, pp. 374-5).

6. The vicarious official immunity action allows law enforcement and public officials to claim immunity for its employees by balancing the need for law enforcement and the need to keep the public safe (also see above) (Samaha, p. 372).

Court Proceedings

1. After arrest, interrogation and identification, the defendant is either remanded into custody or released, depending on the facts gleaned during interrogation and/or the amount of tangible evidence collected. The criminal complaint document authorizes the initial procedures of: informing defendants of the charges against them, inform them of their rights, set bail or detain, and appoint legal representation for the defendant if needed. Felony defendants rarely enter a plea at this point, but misdemeanor defendants usually enter a plea (Samaha, p. 398).

2. Bail is the temporary release of an accused person who is awaiting trial, often with a financial guarantee that will assure their appearance in Court. While about 90% of those arrested are released on bail while they await trial, there is still a balance between bail and detention. The balance is typically based on the degree of seriousness of the alleged crime along with the potential flight risk presented by the defendant (e.g. capital murder and a millionaire with assets in several foreign countries vs. theft and a middle class workman). There is no Constitutional guarantee of bail, just of excessive bail. Thus, the judge weighs prior criminal history, the alleged crime, the amount of evidence against the defendant, the length of time prior to the trial, and other subjective factors when making a bail decision (Samaha, pp. 399-401).

3. Indigence is typically defined as a defendant's inability to hire legal representation. It has never been defined by the Supreme Court, but the four general guidelines are: 1) poor defendants do not need to be completely destitute to qualify for indingency; 2) actual earnings and assets contribute to the decision of indigence, help from friends and relatives does not; 3) actual, not potential earnings are the guidelines; 4) the state may tap future earnings to get reimbursements for the costs of counsel, transcripts and fees for investigations. In Minnesota, this is further elaborated to include those who receive means-tested governmental benefits; the defendant through reasonable means could not hire counsel, and that the defendant can demonstrate that two attorneys maintained by a Court list have refused to defend the case (Samaha, p. 412).

4. There are four possible pleas that a defendant may use to answer the charges against them: 1) Not Guilty; 2) Guilty; 3) Not Guilty by reason of insanity; and 4) Nolo contendere. All are self-explanatory but nolo contendere, which means that the defendant answers criminal charges by declining to plead guilty but accepting a fine. The difference is that the state cannot use their plea to further prove any wrong doing, but must have the permission of the Court to be viable (Samaha, p. 427).

5. Conviction by guilty plea means the defendant admits to the crime and agrees that after statements from counsel they will abide by the Judge's decision and the person is convicted. Conviction by trial is a process in which a trial is set, a jury convened and a process followed that allows an adversarial system to find-facts and allows public participation in the legal process. Typically, a trial ends in either a conviction or a release (or mis-trial in some cases) and the Judge then passes sentence. The guilty plea saves money, time and effort, and is sometimes used with plea bargaining in certain cases (Samaha, p. 442).

6. The two ways of removing a potential juror are peremptory challenges, which strike the juror without needing a reason and challenges for cause, which allow attorneys to argue that the juror is biased or cannot be impartial. The number of challenges changes by area and type of crime (Samaha, p. 446).

7. Straight guilty pleas are please of guilt by the defendant without negotiation or plea bargaining. Negotiated guilty pleas are pleas entered into based on discussion and bargaining between the DA's office and the defendant's attorney or representative. There are many reasons for negotiated pleas -- on the DA's side the case is strong but there is room for a change in outcome as well as the need to save money. On the defendant's side the negotiated plea may result in a lesser sentence or recommendation for a lighter sentence and quicker parole for the defendant; otherwise there is a chance for a harsher sentence (Samaha, pp. 442-3).

After Conviction

1. In the U.S. criminal justice system, the word defendant implies an individual who has been charged with a crime but not yet convicted -- there is a presumption of innocence. The word "offender" implies that the defendant has been found guilty and has either been punished and released or is currently experiencing some form of punishment. Within the overall system, the defendant still has all rights and presumption of needed resources to prove their case. Once a verdict has been reached, though, the defendant becomes an offender if found guilty (Samaha, p. 474).

2. Sentencing guidelines have now become more common when dealing with the model of fixed sentencing. Sentencing guidelines and mandatory minimum sentencing are designed to limit discretionary power over sentencing in order to response to three societal demands: 1) uniformity in giving similar sentences the same punishment (designed to eliminate ethnic or state bias); 2) certainty and truth in sentencing (knowing the sentence "do the crime, do the time"); and, 3) retribution and punishment for a crime across the board regardless of circumstances (Samaha, p. 478).

3. In contemporary society, there are a number of targets for mandatory minimum sentences. Among them are the reduction of weapons and drug related charges by leveling out the punishment and to ensure that there is a proportional sentence for a specific crime (e.g. first offense drug crime in Alabama for African-American youth vs. first offense drug crime in Colorado for wealthy Caucasian) (Samaha, pp. 482-3).

4. There are times when emergencies (weather, terrorism, etc.) cause the government to require emergency powers to keep the nation safe. Two limits to these powers are the necessity of safety and the temporary nature of the emergency -- that is the extraordinary…

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