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 open 2. Defensemay open or reserve C. Case-in-Chief 1. Prosecutormust present evidence 2. Defensemay present evidence D. Rebuttal 1. Prosecutor 2. Defense E. 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 Jury 1. 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 Process The Participants Judge: acts as a legal referee to ensure that proper trial procedure is followed and issues rulings on points of law. For example, when an attorney objects during the testimony of a witness, the witness must stop talking while the judge makes a ruling to either sustain (uphold) or overrule (to dismiss) the objection. The Judge also rules on various motions, including motions to limit testimony on specific subject matter. 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 the defendant. When a trial is ready to begin, the judge sends the deputy sheriff to the jury room to request potential jurors. The judge generally requests a group 30 jurors. Jurors, chosen by panel number, are sent to the courtroom to be questioned by the judge and the attorneys to determine the juror's ability to keep an open mind and be fair. The questioning of potential jurors is called voir dire. Eventually a jury panel of 12 is selected. In some instances, two alternate jurors are also chosen. They are present throughout the trial but do not deliberate unless taking the place of an absent jury member. Any jurors not selected to sit on the courtroom panel return to the jury room and may be sent to a new courtroom to be questioned for another trial. While the trial judge issues ruling concerning the admission and exclusion of evidence and other matters of law, and instructs the jury as to the law, the jurors are responsible for deciding the facts, following the law and rendering a final decision. 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 Office acts as the legal representative of the people of the State of California in prosecuting the accused defendant. Witnesses: give testimony during the trial relating to the case. There are two types of witnesses: Expert and Lay. A Lay Witness may only testify to his/her observations: what

/she heard, saw, etc. An Expert Witness may testify to his/her observations and his/her conclusions, the conclusions of other Expert Witnesses, and hypothetical questions. Court Reporter: records every word spoken during the trial on a stenograph machine or a recording device. The work product of the Court Reporter is called a transcript. Deputy Sheriff: keeps order in the court, guards defendants in criminal cases and maintains custody of the jury. Court Clerk: swears in witnesses and maintains court orders and exhibits in a trial.

Media: Print and broadcast media may be permitted access to the courtroom proceedings unless they are closed. Juvenile proceedings are closed. Public: Observers in the audience are permitted to view the courtroom proceedings unless they are closed. Juvenile proceedings are closed. 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 in that particular case. The questioning process is called the Voir dire. When an attorney wishes to exclude a prospective juror from serving, s/he may use a peremptory challenge or a challenge for cause. Peremptory challenges are limited in number, so the attorney must be prudent in using the peremptory challenge. Challenges for cause are not limited. Any time an attorney can show bias, prejudice, or predispositions of the prospective juror that could affect his/her impartiality, a challenged for cause is used. The Judge makes the ultimate decision on challenges for cause. The judge does not decide peremptory challenges. However, once they are used up, the attorney must use challenges for cause to attempt to exclude a juror. Opening Statements These are brief overview of the case statements made by the attorneys to the jury in which the attorneys outline the facts as they see them and what their theory of the case. The attorneys are not considered witnesses and their statements are not evidence. The plaintiff's attorney in a civil case or the prosecutor in a criminal case gives the first statement and the defense attorney follows. Case-in-Chief: Presentation of Documentary, Physical, and Testimonial Evidence Witnesses for the plaintiff in a civil case or for the prosecution in a criminal case testify first, witnesses for the defense testify next and any rebuttal witnesses testify last. Each witness is sworn to tell the truth. The attorney who calls the witness asks questions in direct examination. The attorney for the opposing side then questions the witness in cross-examination. The purpose of this questioning is to elicit evidence. Exhibits and physical objects such as photographs and x-rays are also presented at this time as evidence. Closing Arguments also known as Summation This is the final opportunity for the attorneys to address the jury. The plaintiff's attorney

in a civil case or the prosecutor in a criminal case proceeds first. The attorney analyzes the evidence and attempts to convince the jury to decide in favor of his or her side of the case. The attorney will emphasize the 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 the weakness of the adversarys case Finally, the plaintiff's attorney or prosecutor has the opportunity to present a rebuttal to the defense attorney's argument. In California, it is called a sandwich closing which means the prosecutor goes first, then the defense, then the prosecutor gets the last word. Jury Instructions The judge instructs the jury on the law they must apply in the particular case. For example, the Judge will read the relevant sections of the Penal Code in criminal cases. S/he will explain the various meanings of mens rea or actus rea elements of the crime. S/he will also explain the presumption of innocence. If the defendant has not taken the stand, the Judge will also instruct the jurors that they may not infer anything negative about the defendants choice to exercise his/her Fifth Amendment rights. Jury Deliberations Jurors then retire from the courtroom to deliberate in secret. In California, a unanimous verdict is required. That means all twelve jurors must agree on the verdict. The options are: Guilty, Not Guilty, Not Guilty by Reason of Insanity, or Guilty but Mentally Ill. If the jury is unable to come to a unanimous decision, the will be called a hung jury. The Judge will encourage them to try to come to a verdict, He may give what is called an Allen charge with has been nicknamed a dynamite charge because thee Judge really wants to avoid declaring a mistrial which would require starting 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 that the evidence will become stale. Witnesses disappear, etc. So the motivation is great to come to closure on a verdict. When the jurors do reach a verdict, the jury foreman who is elected by fellow jurors informs the deputy sheriff that a decision has been reached. The jury returns to the courtroom and the verdict is read aloud to the parties. Sentencing: In cases where the Jury has found the defendant Guilty, the Judge will set a date for the Sentencing Hearing. In the interim, the Prosecution and the Defense prepare their arguments for the sentence for the Judge to consider. In California, the Probation Department will conduct a presentence investigation. The result of that investigation will be prepared in a document known as the Presentence Report (PSR). In the majority of

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 issue under 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 Victim Impact Statement. The Judge listens very carefully to the desires of the victim. There are reported cases where families with moral beliefs that opposed the Death penalty have so stated in their Victim Impact Statement. The Judge in one notorious case decided to impose Life Without Parole (LWOP) based solely on the familys wishes. He had originally been poised to impose the DP. Sentencing Options: The Top Ten List We will learn more about the Sentencing Options in the Chapter 9 podcast. Thats all for now! See you on the Moodle.
The Federal Courts do not allow cameras in the courtroom. A forensic artist skillfully depicted the Omar Kadar sentencing hearing. The Judge considers many factors before imposing a sentence. The first consideration is the goal/objective of sentencing. The Judge must make a determination about what he hopes to accomplish 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 meaningful opportunities 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 the tools to return to society and remain crime free? Do prison pre-release programs and halfway houses assist in meeting this goal? 4. Restoration means Renewal: What component of a sentence can incorporate compensating the victim for financial loss resulting from crime? How about society? Dos community service meet this 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 and GPS. In prison, it is often necessary to further segregate dangerous or disruptive prisoners in the SHU (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 discourages the public at large (general deterrence) from committing a crime meets this goal. Do we learn from other 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

II. Sentencing Options available to the Judge A. Top 10 ListMoodle file B. Factors considered by the judge when selecting a term of years 1. Aggravating circumstances 2. Mitigating circumstances 3. Low term; midterm; high term: The CA model a. Ex. defendant may be sentenced to 3 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. Family history v. Employment history vi. Military history c. Defendants Criminal History i. Instant crimewhat he is charged with now ii. Prior Criminal History: Adult iii. Prior criminal History: Juvenile iv. DMV history d. Victim Impact Statement

e. sentence recommendation with sentence computation i. includes minimum and maximum exposure II. Sentencing: The Death Penalty A. Week 11 Podcast: The Goals/Objectives of Sentencing Hello, Class! In this podcast we are going to examine some of the goals/objectives of the criminal law and sentencing. When the Judge receives the Pre-Sentence Report from the Probation Department, s/he pays very close attention to the Sentencing Recommendation. In the majority of cases, the Judge follows the recommendation in that document. In so doing, the Judge is attempting to address as many of the goals/objectives of sentencing as possible. In very practical terms, we must ask ourselves, what exactly is the Judge hoping to achieve by imposing a particular sentence on the defendant? 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 precise and require your retaining these exact terms and definitions to assure you select the proper answers on the next quiz. Okaylets get busy. 1. Retributionthis goal is best defined by the word Revenge. We all know what interests are served when we talk about retribution. We have all wanted to get even with someone whom we perceive has done the wrong thing to us or someone in whom we are invested. Its a gut reaction, emotionally driven, and a quite human and natural response, unless of course you are the Dalai Lama or Mother Theresa, or a very highly evolved person who does not have a drivers license. Society often feels 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 cultural traditions. There was a time when criminologists would never admit publicly, much less in writing and in scholarly treatises that Retribution is a goal of punishment. That was then, and this is now! 2. Restraintthis goal is best defined by the word Incapacitation. Note the root of this word capacity. Restraint involves rendering the individual incapable temporarily (a term of years, for example) or permanently (execution, for example). And, of course, there are lesser forms of restraint not involving incarceration, such as GPS monitoring, House arrest, and

Electronic monitoringthink Lindsay Low-lows ankle bracelet! 3. Restorationthis goal is best defined by the word Renewal. The Judge may impose a sentence that requires the offender to make restitution to the victim or to the community. As I was driving down the freeway this morning I realized Spring has arrived in Bakersfield because I saw the Kern County Probation van unloading the probationers who were sentenced to community service at the roadside picking up the litter and garbage. In the alternative, offenders are also required to pay restitution to their victims, and the payments begin while the inmate is incarcerated. At least thats how it works here in CA. A portion of the inmates prison wages are garnisheed to a fund to satisfy that portion of his sentence. Needless to say, with prison wages being .70/hour on average, it would take quite a while to cover the levy. But every little bit helps, and it is part of the lesson learnedhopefully. And speaking of lessons one has learned, we have our 4th goal. 4. Rehabilitationthis goal is best defined by the word Reform. The idea that a person may, in fact, voluntarily engage in behavior change as a result of certain types of sentencing options reveals the inherent optimism in the due process model of justice. Why does a criminal ultimately turn it around and renounce the life of crime? Some say its a religious experience, while others suggest its all about education, and the rule of readiness. The gotta wanna that makes all of us renegotiate our relationship with habits that are not in our best interests, whether its our health or our freedom. Think about the last time you considered eliminating a bad habitsugar, caffeine, nicotine, excessive alcohol, gambling, or shopping. Tough stuff, right? We have all tackled similar challenges, and we know that vigilance for signs of relapse is our constant companion. 5. Reintegrationthis goal is best defined by the word Re-entry. The Judge often selects a sentence that s/he hopes will facilitate the offenders reentry into mainstream society. This is especially difficult for those offenders who know nothing about the rules of the road for law abiding social interactions. For those of you going into the corrections field, youll see that inmates have their own code of behavior. The one subtle example that comes to mind is the avoidance of eye contact. In fact, I was walking across campus last week and I passed a man who had all the emblems of prisongang tattoos from MS 13 and a quick aversion of eye contact after I reflexively smiled at him

after all, it is a college campus, and not the NY subway, right? As he averted his eyes, he gave a sideways noda gesture I observed frequently when I worked as a contract employee for the NYSDOC. Now that I think of it, an inmate would rarely say hello as he passed you (if he did not know you). He usually said okay, head down sideways, eyes averted. Fascinating days those were, my friends. I learned a lot working in the prison; in many ways more than when I was a police officer. And last but not least 6. Deterrencethis goal is best defined by the word prevention. Sentences are imposed with the expectation that the offender will be discouraged or prevented from repeating his offense. But we know better. All we need to do is to look at our recidivism rates. We have one of the highest recidivism rates in the world. Thats quite a stat, no? We need to spend a minute discussing the two types of deterrence: general deterrence and specific deterrencealso referred to as special deterrence. General deterrence is aimed at the population as a whole. It assumes that the public will be prevented or discouraged from committing a crime by virtue of knowing that the offender is being punished. Think of it as learning from someone elses adverse experience. How many times has that worked in your life? Special or specific deterrence assumes that the individual offender will be discouraged or prevented from engaging in subsequent criminal acts. Again, think about the recidivism rates and ask yourself if deterrence works, or more importantly, how we can even measure how effectively it works on any given day. How can we measure something that has not occurred? Most law abiding people remain crime free because of reasons other than the existence of a law or the knowledge 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 attends Narcotics Anonymous twice a week and produce evidence of attendance to his probation officer. What goal? Rehabilitation Irma Inmate got a CDCR 115 for fighting on the yard. She had a disciplinary hearing and was sent to the SHU for 10 days. What goal? Restraint Iggy Inmate is participating in the Pre-release Program at Wasco State

Prison. What goal? Reintegration Got it? Think about the sentence and then consider the goals. Now sometimes a sentence may have more than one goal. Heres an example of that: Dudley Defendant was sentenced to death. He was executed last night. Goals? Restraint (he is truly incapacitation from committing any more crimes) and Deterrence specific: he certainly is prevented from committing any more crimes as well. Most examples will have a primary goal: that is, one goal stands out above the rest. Consider this example: Judge Hanging imposed the Death penalty on Deadly Defendant and made the following statement at the Sentencing Hearing. The public has a moral right to see that you commit no more crimes. Therefore I am imposing the death penalty. Listen to the languagemoral rightthis means Retribution first, then the other goals achieved by the DP. So, bottom line, make sure you read the scenario carefully to select the best goal for the situation. Thats all for now! See you on the Moodle.