8 9 dockets podcasts

8/2/2019 8 9 Dockets Podcasts

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CRIM B1 Week 10 Docket:I. The Courtroom Players and the Trial A. Key Personnel 1. Judge 2. Jury 3.

Prosecutor 4. Defense Attorney 5. Defendant 6. Court Reporter 7. Bailiff 8.Witnesses: Expert and Lay 9. The Press 10. The Public II. Order of the Trial A.

Jury Selection and Swearing In B. Opening Statements 1. Prosecutormust open2. Defensemay open or reserve C. Case-in-Chief 1. Prosecutormust presentevidence 2. Defensemay present evidence D. Rebuttal 1. Prosecutor 2. DefenseE. Closing Arguments aka Summation 1. Sandwich closing in CA 2. Other states:Prosecutor gets last word F. Judges Instructions to the Jury aka Charge to the Jury1. Burden of proof on the Prosecution 2. Matters of law regarding the crime(s)charged (elements) 3. defenses (elements and burdens of proof) 4. presumptions G.Jury Deliberations H. Verdict and Options I. Polling of the Jury

The Trial ProcessThe Participants Judge: acts as a legal referee to ensure that propertrial procedure is followed and issues rulings on points of law. Forexample, when an attorney objects during the testimony of a witness, thewitness must stop talking while the judge makes a ruling to either sustain(uphold) or overrule (to dismiss) the objection. The Judge also rules onvarious motions, including motions to limit testimony on specific subjectmatter. In a bench trial, the judge gives the verdict in place of a jury.Jury: The jury is present in a criminal case unless waived by thedefendant. When a trial is ready to begin, the judge sends the deputysheriff to the jury room to request potential jurors. The judge generallyrequests a group 30 jurors. Jurors, chosen by panel number, are sent tothe courtroom to be questioned by the judge and the attorneys todetermine the juror's ability to keep an open mind and be fair. Thequestioning of potential jurors is called voir dire . Eventually a jury panelof 12 is selected. In some instances, two alternate jurors are also chosen.They are present throughout the trial but do not deliberate unless takingthe place of an absent jury member. Any jurors not selected to sit on thecourtroom panel return to the jury room and may be sent to a newcourtroom to be questioned for another trial. While the trial judge issuesruling concerning the admission and exclusion of evidence and othermatters of law, and instructs the jury as to the law, the jurors areresponsible for deciding the facts, following the law and rendering a finaldecision. Plaintiff: in a civil case, the person who files the complaint.Defense Counsel: is the attorney representing the accused. Defendant :is the person against whom a civil or criminal complaint is filed.Prosecutor: in a criminal case, the Kern County District Attorney's Officeacts as the legal representative of the people of the State of California inprosecuting the accused defendant. Witnesses: give testimony duringthe trial relating to the case. There are two types of witnesses: Expertand Lay. A Lay Witness may only testify to his/her observations: what


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Media: Print and broadcast media may be permitted access to thecourtroom proceedings unless they are closed. Juvenile proceedings areclosed. Public: Observers in the audience are permitted to view thecourtroom proceedings unless they are closed. Juvenile proceedings areclosed. Trial Proceedings Stage 1 Jury Selection The judge and

attorneys question the jurors sent to the courtroom until a panel of twelve is agreed upon by all sides. The questioning is designed to excuse jurors who might have difficulty in rendering a fair and impartial verdict inthat particular case. The questioning process is called the Voir dire. Whenan attorney wishes to exclude a prospective juror from serving, s/he mayuse a peremptory challenge or a challenge for cause. Peremptorychallenges are limited in number, so the attorney must be prudent inusing the peremptory challenge. Challenges for cause are not limited. Anytime an attorney can show bias, prejudice, or predispositions of theprospective juror that could affect his/her impartiality, a challenged forcause is used. The Judge makes the ultimate decision on challenges for

cause. The judge does not decide peremptory challenges. However, oncethey are used up, the attorney must use challenges for cause to attemptto exclude a juror. Opening Statements These are brief overview of thecase statements made by the attorneys to the jury in which the attorneysoutline the facts as they see them and what their theory of the case. Theattorneys are not considered witnesses and their statements are notevidence. The plaintiff's attorney in a civil case or the prosecutor in acriminal case gives the first statement and the defense attorney follows.Case-in-Chief: Presentation of Documentary, Physical, andTestimonial Evidence Witnesses for the plaintiff in a civil case or for theprosecution in a criminal case testify first, witnesses for the defense

testify next and any rebuttal witnesses testify last. Each witness is swornto tell the truth. The attorney who calls the witness asks questions indirect examination. The attorney for the opposing side then questions thewitness in cross-examination. The purpose of this questioning is to elicitevidence. Exhibits and physical objects such as photographs and x-raysare also presented at this time as evidence. Closing Arguments alsoknown as Summation This is the final opportunity for the attorneys toaddress the jury. The plaintiff's attorney


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in a civil case or the prosecutor in a criminal case proceeds first. Theattorney analyzes the evidence and attempts to convince the jury todecide in favor of his or her side of the case. The attorney will emphasizethe strength of his/her case and the weakness of the adversarys case.The defense attorney follows with his or her argument, attempting to do

the same. The attorney emphasizes the strength of his/her case and theweakness of the adversarys case Finally, the plaintiff's attorney orprosecutor has the opportunity to present a rebuttal to the defenseattorney's argument. In California, it is called a sandwich closing whichmeans the prosecutor goes first, then the defense, then the prosecutorgets the last word. Jury Instructions The judge instructs the jury on thelaw they must apply in the particular case. For example, the Judge willread the relevant sections of the Penal Code in criminal cases. S/he willexplain the various meanings of mens rea or actus rea elements of thecrime. S/he will also explain the presumption of innocence. If thedefendant has not taken the stand, the Judge will also instruct the jurors

that they may not infer anything negative about the defendants choice toexercise his/her Fifth Amendment rights. Jury Deliberations Jurors thenretire from the courtroom to deliberate in secret. In California, aunanimous verdict is required. That means all twelve jurors must agreeon the verdict. The options are: Guilty, Not Guilty, Not Guilty by Reasonof Insanity, or Guilty but Mentally Ill. If the jury is unable to come to aunanimous decision, the will be called a hung jury. The Judge willencourage them to try to come to a verdict, He may give what is calledan Allen charge with has been nicknamed a dynamite charge becausethee Judge really wants to avoid declaring a mistrial which would requirestarting the case over again with selecting a new jury and moving

through all the stages again. This is very costly, and the risk is great thatthe evidence will become stale. Witnesses disappear, etc. So themotivation is great to come to closure on a verdict. When the jurors doreach a verdict, the jury foreman who is elected by fellow jurors informsthe deputy sheriff that a decision has been reached. The jury returns tothe courtroom and the verdict is read aloud to the parties. Sentencing:In cases where the Jury has found the defendant Guilty, the Judge will seta date for the Sentencing Hearing. In the interim, the Prosecution and theDefense prepare their arguments for the sentence for the Judge toconsider. In California, the Probation Department will conduct apresentence investigation. The result of that investigation will be prepared

in a document known as the Presentence Report (PSR). In the majority of


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cases, the Judge will follow the sentencing recommendation that is part of the PSR. The Defense may also prepare a Sentencing Memorandum.Expert and Lay witnesses may be called to testify, but the only issueunder consideration is the sentence, not guilt or innocence. In addition,there is an opportunity for the Victim or the Victims family to state the

effect the crime had on their lives. This statement is called a VictimImpact Statement. The Judge listens very carefully to the desires of thevictim. There are reported cases where families with moral beliefs thatopposed the Death penalty have so stated in their Victim ImpactStatement. The Judge in one notorious case decided to impose LifeWithout Parole (LWOP) based solely on the familys wishes. He hadoriginally been poised to impose the DP. Sentencing Options: The TopTen List We will learn more about the Sentencing Options in the Chapter9 podcast.Thats all for now! See you on the Moodle.

The Federal Courts do not allow cameras in the courtroom. A forensic artist skillfullydepicted the Omar Kadar sentencing hearing.

The Judge considers many factors before imposing a sentence. The first consideration is thegoal/objective of sentencing. The Judge must make a determination about what he hopes toaccomplish by selecting a particular sentence that is permitted under the law.

The Goals/Objectives of Sentencing include:1. Retribution means Revenge : Does society have a moral right to exact payment of time or money from a criminal defendant? What are his/her just deserts for violating the law.2. Rehabilitation means Reform : Will a defendant be encouraged to engage in meaningfulopportunities for behavior change as a result of the sentence imposed by the Judge?3. Reintegration means Reentry : Will an inmate who is ready for release from prison have thetools to return to society and remain crime free? Do prison pre-release programs and halfwayhouses assist in meeting this goal?4. Restoration means Renewal : What component of a sentence can incorporate compensatingthe victim for financial loss resulting from crime? How about society? Dos community service meetthis goal?5. Restraint means Incapacitation : Sentences that limit or restrict the mobility of a defendant or an inmate meet this goal. Consider the effectiveness of house arrest, electronic monitoring andGPS. In prison, it is often necessary to further segregate dangerous or disruptive prisoners in theSHU (solitary confinement).6. Deterrence means Prevention : A sentence that discourages or prevents the individual offender (specific deterrence/special deterrence) meets this goal. A sentence that prevents or discouragesthe public at large (general deterrence) from committing a crime meets this goal. Do we learn fromother people's experiences?

After the Judge considers the goals/objectives of sentencing, then s/he selects from the menu of options available for the crimes committed by the offender

Docket Week 11 I. SentencingGoals/Objectives of Sentencing: Podcast!A. Rehabilitation= reform B. Retribution= revenge C. Restraint=incapacitation D. Reintegration=reentry E. Restoration=renewal F.Deterrence=prevention 1. Specific/special 2. general


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II. Sentencing Options available to the Judge A. Top 10 ListMoodle fileB. Factors considered by the judge when selecting a term of years 1.Aggravating circumstances 2. Mitigating circumstances 3. Low term; mid-term; high term: The CA model a. Ex. defendant may be sentenced to3 or 4 or 5 years. C. Presentence Report 1. Common Elements: a.

Prepared by Probation Department b. Defendants Personal History i.Medical history ii. Psychological history iii. Educational history iv. Familyhistory v. Employment history vi. Military history c. Defendants CriminalHistory i. Instant crimewhat he is charged with now ii. Prior CriminalHistory: Adult iii. Prior criminal History: Juvenile iv. DMV history d. VictimImpact Statement


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e. sentence recommendation with sentence computation i. includesminimum and maximum exposure

II. Sentencing: The Death Penalty A.

Week 11 Podcast: The Goals/Objectives of Sentencing Hello, Class! Inthis podcast we are going to examine some of the goals/objectives of thecriminal law and sentencing. When the Judge receives the Pre-SentenceReport from the Probation Department, s/he pays very close attention tothe Sentencing Recommendation. In the majority of cases, the Judge follows the recommendation in that document. In so doing, the Judge isattempting to address as many of the goals/objectives of sentencing aspossible. In very practical terms, we must ask ourselves, what exactly isthe Judge hoping to achieve by imposing a particular sentence on thedefendant? With that question in focus, lets take the goals one at a time.This would be a great opportunity for you to pause the podcast and grab

your pen and notebook. The terminology and the definitions are preciseand require your retaining these exact terms and definitions to assure youselect the proper answers on the next quiz. Okaylets get busy. 1.Retributionthis goal is best defined by the word Revenge. We all knowwhat interests are served when we talk about retribution. We have allwanted to get even with someone whom we perceive has done the wrong thing to us or someone in whom we are invested. Its a gutreaction, emotionally driven, and a quite human and natural response,unless of course you are the Dalai Lama or Mother Theresa, or a veryhighly evolved person who does not have a drivers license. Society oftenfeels a righteous indignation when a crime is committed against one of its

members. And the need to exact a moral payment (an eye for an eye; just desserts) for transgressions is a continuing theme in most culturaltraditions. There was a time when criminologists would never admitpublicly, much less in writing and in scholarly treatises that Retribution isa goal of punishment. That was then, and this is now! 2. Restraintthisgoal is best defined by the word Incapacitation. Note the root of this wordcapacity. Restraint involves rendering the individual incapabletemporarily (a term of years, for example) or permanently (execution, forexample). And, of course, there are lesser forms of restraint not involvingincarceration, such as GPS monitoring, House arrest, and


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after all, it is a college campus, and not the NY subway, right? As heaverted his eyes, he gave a sideways noda gesture I observedfrequently when I worked as a contract employee for the NYSDOC. Nowthat I think of it, an inmate would rarely say hello as he passed you (if hedid not know you). He usually said okay, head down sideways, eyes

averted. Fascinating days those were, my friends. I learned a lot workingin the prison; in many ways more than when I was a police officer. Andlast but not least 6. Deterrencethis goal is best defined by the wordprevention. Sentences are imposed with the expectation that the offenderwill be discouraged or prevented from repeating his offense. But we knowbetter. All we need to do is to look at our recidivism rates. We have oneof the highest recidivism rates in the world. Thats quite a stat, no? Weneed to spend a minute discussing the two types of deterrence: generaldeterrence and specific deterrencealso referred to as special deterrence.General deterrence is aimed at the population as a whole. It assumes thatthe public will be prevented or discouraged from committing a crime by

virtue of knowing that the offender is being punished. Think of it aslearning from someone elses adverse experience. How many times hasthat worked in your life? Special or specific deterrence assumes that theindividual offender will be discouraged or prevented from engaging insubsequent criminal acts. Again, think about the recidivism rates and askyourself if deterrence works, or more importantly, how we can evenmeasure how effectively it works on any given day. How can we measuresomething that has not occurred? Most law abiding people remain crimefree because of reasons other than the existence of a law or theknowledge that a person has been sentenced for a crime.Consider these goals/objectives when looking at various scenarios. Ask

yourself what goal is being met with this sentence? Heres an example.Izzy Inmate is sentenced to Probation with the condition that he attendsNarcotics Anonymous twice a week and produce evidence of attendanceto his probation officer. What goal? Rehabilitation Irma Inmate got aCDCR 115 for fighting on the yard. She had a disciplinary hearing andwas sent to the SHU for 10 days. What goal? Restraint Iggy Inmate isparticipating in the Pre-release Program at Wasco State


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Prison. What goal? Reintegration Got it? Think about the sentence andthen consider the goals. Now sometimes a sentence may have more thanone goal. Heres an example of that: Dudley Defendant was sentenced todeath. He was executed last night. Goals? Restraint (he is trulyincapacitation from committing any more crimes) and Deterrence

specific: he certainly is prevented from committing any more crimes aswell. Most examples will have a primary goal: that is, one goal stands outabove the rest. Consider this example: Judge Hanging imposed the Deathpenalty on Deadly Defendant and made the following statement at theSentencing Hearing. The public has a moral right to see that youcommit no more crimes. Therefore I am imposing the death penalty. Listen to the language moral right this means Retribution first, thenthe other goals achieved by the DP. So, bottom line, make sure you readthe scenario carefully to select the best goal for the situation.Thats all for now! See you on the Moodle.

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