Chapter 12: Initiation of the Legal Process, Bail, and the Right to Counsel

Question 1

After police conduct formal __________ and __________ and ___________, the question becomes whether or not to pursue any further _______________ of the crime. Law enforcement may opt to ___________ any investigation if there is a ____________ of evidence, or if the crime was considered a ____________ violation of law. But officers may choose to continue the investigation and focus on other potential ______________. Officers may also decide that a _____________ is enough to deter someone from breaking the law again, or may ______________ someone from prison, who they believe have served ___________ time as punishment.

Answer 1

arrest; search; seizure; investigation; drop; lack; minor; suspects; warning; release; enough

Question 2

_____________ is the most ____________ individual in the criminal justice system. He has the power to ___________ a defendant, decide ___________ to charge him with, and chooses whether or not to offer a __________ ___________. He may also recommend the defendant to a ____________ program or _______________ counseling for some other purpose rather than to prosecute the individual.

Answer 2

Prosecutor; powerful; charge; what; plea bargain; diversion; psychological

Question 3

In Wayte v. U.S., (1985), it was decided that the _____________ has ____________ discretion to deciding whether or not to ____________, and what to _____________ the defendant with, as long has the charges are based on ____________ ______________ to believe the accused has committed a crime within the definition of state ______________.

Answer 3

prosecutor; broad; prosecute; charge; probable cause; statutes

Question 4

Presumption of Regularity

Answer 4

Prosecutors will not do anything contrary to their duties.

They will honestly, fairly, and responsibly exercise their authority.

Question 5

Why is it that the court recognizes the prosecutor’s ____________ on whether or not to charge, and yet these decisions are not submitted to / made by a judge?

Separation of Powers: (define)

Discretionary Judgement: (define)

Resources: (define)

Answer 5

Separation of Powers:

• Prosecutor is a part of executive branch, while judge is a part of judicial.
• Judge would prefer to stay out of the everyday decisions of the executive, unless he’s violating state or federal constitution.

Discretionary Judgment:

• Judges lack expertise prosecutors have in the weighing and balancing of factors such as
  • strength of evidence,
  • personal character of defendant,
  • government’s interest in deterring other crimes.

Resources:

• prosecution’s discretion to charge is broad but not unlimited.
• Courts will intervene to ensure prosecutor’s charges aren’t based on selective / vindictive prosecution.

Question 6

Selective Prosecution

Answer 6

• Violates Equal Protection Clause of 5th and 14th Amendments.
• Protects people from prosecutions based on race, gender, religion, or other fundamental right.

Question 7

Two Prong Test of Selective Prosecution

Answer 7

• Are members who fall within particular race, gender, religion prosecuted for exercising fundamental right whilst others “similarly situated” who are not apart of those groups not prosecuted for exercise same fundamental rights?
• Is the prosecutorial policy meant to discriminate against the group?

Question 8

Vindictive Prosecution

Answer 8

• Violates Due Process Clause of 5th and 14th Amendments.
• Protects those people who assert their constitutional rights from retaliation by the government by being charged with more serious crimes.

Question 9

In Blackledge v. Perry, (1974), the Supreme Court decided that just because a prosecutor ____________ the charges against a defendant to more ____________ charges, doesn’t automatically mean it is a case of _______________ prosecution. The Supreme Court ruled, that during the course of ____-_________ investigation, the prosecutor may find more evidence that elicits / justifies more ____________ charges.

Answer 9

increases; serious; vindictive; pre-trial; serious

Question 10

First step for prosecutors after police have formally arrested suspect w/o an _____________ warrant or without bringing the defendant before a ___________ __________ to be ______________ is a court hearing to determine whether there is ____________ _____________ to keep suspect detained for an extended period of time. This is called a _____________ hearing.

Answer 10

arrest; grand jury; indicted; probable cause; Gerstein

Question 11

In Gerstein v. Hugh, (1975), the Supreme Court ruled a Florida law that allowed the police to detain a suspect for a month or more ____________ taking him before a judge to establish probable cause is an _____________ restraint on ___________ in violation of the 4th Amendment.

The Court ruled it is the Court’s responsibility to determine _____________ ______________, and defendants are to be brought before a judge “______________” to conduct a “non-adversarial” ______________ ______________ hearing.

Answer 11

before; unreasonable; liberty

probable; “promptly”; probable cause

Question 12

Probable Cause Hearing

Answer 12

Hearing to determine whether there is probable cause to detain a suspect.

Question 13

In County of Riverside v. McLaughlin, (1991), the Supreme Court ruled that _______ hours is a _____________ period of time in which to conduct the ___________ _________ hearing. This _____ hr. limit balances the need to the government to conduct the ________ __________ hearing and doesn’t take the suspect away from his personal life responsibilities including his __________, making ____________ for too long.

Court also ruled that the ___________ ____________ standard to ____________ people is ALSO the same _________ ___________ standard necessary to ______________ someone (i.e. based on facts within one’s knowledge and trustworthy information, one has reason to believe that a crime has been, or is being committed, and that the person being arrested committed the crime).

Answer 13

48; reasonable; probable cause; 48; probable cause; job; income

probable cause; detain; probable cause; arrest

Question 14

First Appearance

Answer 14

• First step after formally arresting defendant.
• aka, Initial Appearance
• bringing defendant before a judge to be warned of the charges against him & be informed of his right to legal counsel.

Question 15

The First Appearance is only triggered by the prosecution first filing a ____________ document.

Answer 15

complaint

Question 16

Complaint document

Answer 16

• Prosecutor may or may not decide to charge.
• If he decides to charge, he files a complaint document.
• Document stating the charges against the defendant, and in particularly what portion of the offense is being charged against him.

Question 17

Supreme Court ruled that defendants are to be brought before a judge following the arrest without delay, which may be 48 hours, (__________ v. ___________), and also ruled that confessions obtained from suspect may be inadmissible if the suspect is not brought before a judge within a reasonable amount of time (__________ v. ______, and ____________ v. ______).

Answer 17

Riverside; McLaughlin; McNabb; U.S., Mallory; U.S.

Question 18

Purposes of First Appearance (4)

• Defendant is informed of __________ against him.
• Constitutional Rights: Defendant is informed of…
  
  • ____________ rights,
  • entitlement to a _____________ and to consult his _____________,
  • option of _____-__________ release,
  • right against _________ ______________,
  • right to have ____________ obtained evidence suppressed.
• Pretrial Release: it’s determined during first appearance whether or not defendant is __________ for release from __________ before trial, and sets the _________ amount or any condition on which his release is permitted.
• Attorney: _____________ defendants are appointed an attorney.

Answer 18

charges

Miranda; lawyer; lawyer; pre-trial; self incrimination; unlawfully

eligible; custody; bail

indigent

Question 19

In County Riverside v. McLaughlin, (1991), the Court was presented with a question as to the constitutionality of a Riverside, California law that states defendants arrested without a ____________ must be brought before a judge without undue __________, which in some extreme cases could be ____ days. However, this ____ day extreme never accounted for ___________ or ____________. So, if you’re arrested w/o a warrant during a _____________ vacation period or during the _____________, then you may not receive a ________________ _______________ hearing until after ____ days.

Enter Donald Lee McLaughlin, who in August 1987, filed complaint in District Court of California, ordering that he, and all others similarly situated as him, be given injunctive and declaratory _____________. Respondent’s complaint document suggested he, and 3 others, had been arrested w/o a ________________ ,incarcerated, and still hadn’t received a ____________ _____________ determination hearing.

In 1989, Respondent entered another request to the District Court, requesting preliminary injunctive relief from current Riverside County arraignment laws, and wanted an order from the court stating that people arrested without a ______________ are taken before a judge without delay in a period of _____ hours. District Court sided with Respondent, and claimed the County’s current practices were inconsistent with the Gerstein ruling.

Supreme Court ruled that Gerstein gave defendant’s the right to understand the ____________ _____________ on which they were arrested without _____________. This determination of _____________ ____________ must be made ____________. The Court established that a jurisdiction that provides ____________ _____________ determinations within ______ hours of arrest generally comply with the “______________” requirement in Gerstein.

That’s not a hardline rule, btw, the Court says just because a ____________ ____________ determination takes place within ________ hours of arrest, that doesn’t make it reasonable, it could be proven that there was unnecessary, ______________ delay during that ______ hr. period.

If the time between the _________ and the ___________ __________ determination hearing takes more than ________ hours, then the burden of proof falls on the ____________ to prove that there was some emergency or circumstances which reasonably required the time be _____________, and weekends aren’t a good enough excuse.

Jurisdictions are also free to combine the ______________ _____________ determination hearing with the ________________ process, but it must happen within ______ hrs. of a defendant’s arrest.

Answer 19

warrant; delay; 2; 2; holidays; weekends; holiday; weekend; probable cause; 5

relief; warrant; probable cause

warrant; 36

probable cause; delay; probable cause; promptly; probable cause; 48; “promptness”

probable cause; 48; unreasonable; 48

arrest; probable cause; 48; government; extended

probable cause; arraignment; 48

Question 20

Bail

Answer 20

bond of money posted as a condition for pre-trial release.

Question 21

The 8th Amendment provision which prohibits __________ bail has not been applied to the ___________ through the ___________ ___________ clause of the 14th Amendment. But, most state constitutions provide a right to ____________ only in ____________ offense cases.

Answer 21

excessive; states; Due Process; bail; capital

Question 22

The Supreme Court states that bail is posted to ___________ that the defendant __________ up at trial, and any amount __________ than what would guarantee the defendant’s _____________ at trial is “_____________” per the 8th Amendment.

Answer 22

ensure; shows; greater; presence; “excessive”

Question 23

Bail Clause

Answer 23

Clause within the 8th amendment that prohibits excessive bail.

Question 24

Money Bail

Answer 24

• Money deposited to court.
• Once defendant shows up at trial, court returns deposit to person who paid it.

Question 25

Surety Bonds

Answer 25

• When you can’t pay full bail amount upfront.
• Defendant paying bail has to apply for a bond from bondsman.
• Defendant deposits 10% of bond with bondsman, and the bondsman deposits the money with the court.
• Bondsman retains that 10% as a fee for depositing money to the court, and forfeits the entire amount that needs to be paid to the court if the defendant doesn’t show up for trial.

Question 26

Release on Recognizance

Answer 26

Release from pre-trial custody based on promise to appear at trial.

Question 27

Individuals charged with ____________ felonies or who pose a major risk of _________ to a particular person are not given the opportunity of ___________, and are kept in jail until trial.

Answer 27

specific; harm; bail

Question 28

Preventative Detention

Answer 28

giving government a court order to detain an individual who poses a risk of flight or risk to safety of others.

Question 29

Defendants who are not granted ____-_________ ____________ are detained in ____________ institutions until trial.

Answer 29

pre-trial release; correctional

Question 30

Bell v. Wolfish, (1979)

Metropolitan Correctional Center (MCC) was established in 1928 as New York City’s federal ______ to house ____________ defendants awaiting ___________, and people waiting to be transferred to federal prison.

MCC was only intended to house 389 persons w/ _________ occupancy rooms, but the number of persons committed to the ___________ increased. Despite efforts to accommodate for increased ___________, the MCC eventually became overcrowded after its opening which required single occupancy rooms to begin _________-bunking.

Respondent challenged these conditions in District Court, alleging several of his __________ and __________ rights were being violated including __________ length of __________, improper __________, and inadequate ___________, _________, and __________ opportunities.

The District Court ruled to limit these practices, and the Court of Appeals affirmed.

Supreme Court said the dispositive question was whether or not the defendant’s right to _____ ____________ of the 5th and 14th Amendment was being violated.

The Supreme Court answered this question by first questioning if these institutional conditions ____________ to ____________ the defendant.

The Court ruled that if the restrictions (i.e. like on educational opportunities and such) on detainees __________ to __________, then they would violate the Constitution, because the Respondents held in the facility are really only their awaiting _________.

In this case, the conditions the Respondent complains about do not amount to ___________. Loss of __________ and freedom of _________ are just part of being resigned to confinement.

Then it has to be decided if the restrictions by the correctional facility are merely there to perform as “___________,” or whether they operate to achieve a legitimate govt __________ in which they’re not punishment.

Govt has legitimate interest in promoting ____________ and ___________ in the facility in which the individual is __________, and may have to go beyond what is considered necessary to ensure the detainees ___________ at trial.

The institution is responsible for ensuring that no ___________ nor _________ drugs are smuggled into the institution and introduced to the general population or the detainees.

There are no conditions present that would even demonstrate a substantial _____ ___________ violation of the 5th Amendment.

Detainees do not possess all the___________ of an ___________ individual.

Answer 30

jail; criminal; trial

single; institution; capacity; double

statutory; constitutional; undue; detention; searches; educational; recreational; occupational

Due Process

amount; punishing

amount; punishing; trial

punishment; privacy; choice

“punishment”; purpose

order; security; detained; presence

weapons; illicit

Due Process

liberties; unincarcerated

Question 31

The 6th Amendment provides the ___________ a right to legal ______________. In English common law, defendants received the assistance of a __________ for ___________ but not for ___________, because attorneys were thought to interrupt the process of prosecution for more serious crimes.

Answer 31

indigent; counsel; attorney; misdemeanors; felonies

Question 32

Even the intelligent and educated _____________ needs the aid of counsel at every stage of the _____________ against him, because on his own, he does not know how to establish his ___________. On his own, he will be vulnerable to incompetent __________, ___________ that is completely irrelevant to the issue or that should otherwise be _____________.

Answer 32

layman; proceedings; innocence; evidence; evidence; inadmissible

Question 33

In Gideon v. Wainwright, (1963), Clarence Earl Gideon was charged with breaking and entering into a poolroom in the State of Florida to commit a misdemeanor. This is a _______ under Florida State Law.

Gideon was arrested and during his preliminary hearing, without ________ or a __________, requested the court appoint him legal _________.

The trial court judge denied petitioner’s request to an attorney, stating the Florida law only compels the court to appoint legal counsel when someone commits a _____________ offense.

So, petitioner represented ________ in court: he gave an opening statement, cross-examined, and refused to testify himself.

The jury returned a verdict of guilty.
Gideon was sentenced to 5 years in state prison.

Gideon (read law books in jail and) appealed using a writ of habeas corpus on the grounds that his __th Amendment rights, to have legal _______ present for a criminal defendant’s defense, was violated.

The Supreme Court ruled in favor of Gideon and held, that although Gideon did about as well as any _____________ could in defending himself, and person who is too _________ to hire a lawyer must be __________ one by the court for his defense. Lawyers for defense are ___________ not ___________. Anything otherwise would deprive the defendant of ______ __________ of law.

This case established that defendants have the right to legal ___________ in ___________ and now _________ court according to the __th Amendment applied through the ____th Amendment.

Answer 33

felony

money; lawyer; counsel

capital

himself

6th; counsel

layperson; poor; appointed; necessities; luxuries; due process

counsel; federal; state; 6th; 14th

Question 34

Defendants have the right to __________ __________ when adversarial ____________ are __________.

Answer 34

legal counsel; proceedings; initiated

Question 35

Adversarial criminal proceedings begin when an individual is charged of __________ by ___________ or _____________ document by a prosecutor, or when a charge is brought against him at the _____________ hearing. At that point, the full force of the ___________ is set against him, and the individual transforms from a ___________ into a _____________.

Answer 35

crime; indictment; information; preliminary; prosecution; suspect; defendant

Question 36

Critical Stages of the Prosecution

Answer 36

those stages of criminal proceedings where we’d argue that if a defendant did not have counsel, he would not be safeguarded from the prosecution, and diminish the defendants right to a fair trial.

Question 37

In Argersinger v. Hamlin, (1972), the Supreme Court decided that “absent a ___________ and __________ waiver, no person may be incarcerated for any offense, ________ or __________, or __________, unless he was represented by ________ ___________.

Answer 37

knowing; intelligent; petty; serious; felony; legal counsel

Question 38

According to Scott v. Illinois, (1979), a judge cannot sentence a defendant to a term of _____________ if he is not given a __________ for his defense during __________

Answer 38

imprisonment; lawyer; trial

Question 39

There’s not a one-size-fits all standard for ____________. ____________ is defined on a _______-by-________ basis. Georgia defines indigency as one lacking sufficient ___________ or other ___________ to provides them selves with ___________ counsel that won’t ___________ to defend them. Most standards of _______________ are defined by ____________.

(We will (likely) follow Washington’s standard for indigency from Wash. Revised Code § 10.101.010 (1)).

Answer 39

indigency; Indigency; state; state; funds; resources; legal; struggle; indigency; statute

Question 40

Defendants do not have a right to choose one’s specific _____________ counsel, although courts do typically respect a defendant’s ______________ of who they want to be represented by. In Morris v. Slappy, (1983), Defendant Morris was assigned legal counsel who was hospitalized at the time. The Defendant refused to have that public defender represent him, but the trial court refused to assign him _____ counsel. The Supreme Court upheld trial court decision, reasoning that when the Court assigns ____________ to an ____________ defendant there need not be an established _________-___________ relationship.

Answer 40

appointed; preference; new; counsel; indigent; attorney-client

Question 41

Defendants do not have a right 1) to have counsel appointed to them whom they cannot _____________, 2) to be represented by someone who is _____ a ____________, 3) to be represented by someone who is not apart of the ________ (American ______ Association).

Answer 41

afford; NOT; lawyer; bar; Bar

Question 42

The Supreme Court ruled that defense attorneys have the overarching duty to represent the defendant’s _________ and “bring to ___________” skill and knowledge that will render the trial an reliable ____________ process.

The adversarial criminal process is at its best when both the _____________ and ___________ are represented by ______________ lawyers. That’s why, in Strickland v. Washington, (1984), the Supreme Court ruled that ____________ and _____________ defendants alike have the right to have _____________ (skilled) counsel appointed to them for their defense. We would rightly say that defendants not provided with ____________ counsel are deprived of _____ ____________ of law.

Answer 42

Cause; bear; adversarial

Prosecution; defendant; effective; indigent; nonindigent; effective; effective; due process

Question 43

Ineffective Assistance of Counsel

Answer 43

Describes when a lawyer’s performance falls below a standard of reasonably expected effectiveness and affects the outcome of a trial.

Question 44

Two Prong Standard of Ineffective Assistance of Counsel

Answer 44

• Deficient Performance
• Prejudice

Question 45

Deficient Performance

Answer 45

• Defendant has to prove that attorney’s performance falls below the standard of reasonably effective competence expected of an attorney in a criminal case.
• The attorney’s actions are presumed to be effective.
• Judges, on appeal, will evaluate the “totality of the circumstances” test to determine whether or not the counsel’s performance falls below what’s reasonably expected.

This only requires that the attorney’s decisions be “reasonable” not the “best” or “most intelligent.”

Question 46

Prejudice

Answer 46

• If not for the lawyers error, is there a reasonable probability that the outcome of the trial would have been different.

Question 47

Presumption of Prejudice

Answer 47

When a lawyer’s conduct falls so dramatically below the standard of reasonably effective counsel that (is expected during a criminal case that) that it is presumed that there is prejudice against the defendant, and judges don’t even bother looking at the case, and automatically reverse any conviction against him.

Question 48

pro se representation

Answer 48

when one chooses to represent themselves on their own during trial

Question 49

In Faretta v. California, (1975), Anthony Faretta was refused the right to _____________ himself in trial court during a prosecution for grand theft. The Supreme Court overruled, and declared an individual does have the right to ______________ himself in court, a right protected under the ___th Amendment.

Answer 49

represent; represent; 6th

Question 50

In Iowa v. Tower, (2004), the Supreme Court ruled that for a defendant to ______________ himself during _________, he must knowing and intelligently __________ his right to legal representation and ____________ his right to represent himself.

These waivers are often referred to as “___________ waivers.”

Answer 50

represent; trial; waive; invoke; Faretta

Question 51

While defendants are granted the __th Amendment right to ____________ themselves at trial, the Supreme Court has established ____________ _____________, also known as “___________ counsel.” This ____________ does not interfere with the trial at any stage, and there is no such thing as “__________” counsel where the ____________ counsel and the defendant _____________ up responsibilities.

Answer 51

6th; represent; standby counsel; “shadow”; counsel; “hybrid”; standby; divide

Question 52

One’s ability to __________ trial is ascertained based on their “____________ _____________”: one’s ability to understand the ___________ of their crimes, the ___________ of the charges against them, and the basic ability to __________ with their lawyer. This is NOT to be conflated with ____________ ____________. One may be fit to stand trial, but one may not be deemed ready to ____________ himself because he lacks the __________ ____________ to represent himself.

Answer 52

stand; mental competency; nature; nature; consult; mental capacity; represent; mental capacity