Prosecution and Defense

1. Prosecution and Defense Wide Variety Among the States

2. The Prosecutor • Little difference among the states in the selection of prosecutor … he/she is almost always elected on a county or district basis • May be the most powerful office in the criminal justice system • Authority comes from the state, but the office is essentially local • Over 2,300 prosecutors offices in the US … with 78,000 staff members • The top five percent of prosecutors’ offices serve about half the US population • They have enormous discretion in the conduct of their offices

3. Why so much discretion? • Legislative over-criminalization • Need to individualize justice … facts, issues, evidence varies • But there are limits, such as: • Some states require Grand Jury indictment • Juries must determine guilt beyond reasonable doubt … jury nullification might occur if the jury doesn’t believe a case should have been brought to court • Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged.  The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate that are charged with deciding. • Actually, few cases end up going to trial anyway • Discretion can be misused … leading to court challenges or even changes in sentencing laws

4. Defense Attorneys • Gideon v. Wainwright (1963) … required that the states provide attorney to indigents • Miranda v. Arizona (1966) … required that defendants be apprised of their rights • Generally, a court appoint attorney is required in all cases, felony or misdemeanor, where imprisonment/jail time is possible • And “effective” counsel is required … how do we measure that?

5. Public Defenders • There is a great deal of variety in how states implement public defender programs • About 60 percent of funding comes from the county & 25 percent from the state • Most states utilize: • Public defender programs • Assigned counsel or • Contract attorneys • Among the nation’s 100 most populous counties, 90 used public defender programs, 89 used assigned counsel, and 42 used contract attorneys

6. Varieties of public defenders … • Public defender offices have a staff of salaried attorneys … some of these are very good • Often states use “assigned counsel” … private attorneys chosen or appointed on a systematic or ad hoc basis & paid from public funds … often using a roster or rotation • Contract attorneys are employed to handle cases on a flat fee or total compensation basis … mostly states use these as overloads or in case of conflicts • There is a lot of pressure on public defenders to finish the case quickly … low pay, high work load … might not result in effective counsel

7. Juries • Sixth Amendment to the US Constitution • Applied to the states through the “due process of law” clause of the 14th amendment • Not all criminal prosecutions trigger the right to a jury trial … minor offenses where the potential sentence is less than 6 months do not, for instance • The jury is a “fact finder” • Sometimes defendants forgo a jury trial and have a bench trial • Juries are to protect the defendant … often find them guilty though • In civil trials (like product liability), judges tend to favor the plaintiffs more than juries do • Historically, juries are composed of twelve jurors … who must vote unanimously to convict • But that is not always the case … several states use 6 or 8 member juries and do not require unanimous verdicts in noncapital felonies • Jury selection begins with voir dire examinations … questioning jurors for potential biases … and possibly interviewing expert witnesses … • Some are rejected “for cause” … attorneys have some “preemptory challenges”

8. Defendants’ Rights • Defendants: • Presumed innocent until proven guilty • Safe from arrest unless there is probable cause • Right to an attorney • Right to a jury trial • Right to confront witnesses/subpoena • Right to due process/equal protection • Punishment cannot be cruel and unusual

9. Victims’ Rights • These vary among the states • Every state has some sort of statement of rights for victims … Some involve: • Cash compensation • Notice of procedural developments • Protection from offender harm • More attention from justice system • May actually require conferences with prosecutor • May allow testimony at sentencing phase

10. Sentencing • In Arkansas, the jury chooses the sentence • In Texas, the judge is free to ignore the jury’s decision as to sentencing • Most states permits the judge to sentence the convicted criminal … particularly in noncapital cases • In capital cases, juries set the sentence in a separate phase & it must be unanimous • Discretion in sentencing varies among the states • While indeterminate sentencing was once the standard, states have move more to determinate sentencing … more structure in sentencing • Several states have mandatory minimum sentences for certain crimes. Others have habitual offender laws and/or “truth in sentencing laws” that require a minimum sentence to be served • In Arkansas, a convict can earn a day of “good time” for each day served • Because prisons are overloaded, states have allowed “house arrest,” electronic bracelets, intensive probation, halfway houses, boot camps for younger offenders, work release programs, weekend sentencing, and treatment for offenders.