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TRIAL Theory Penal - Copia

TRIAL Theory Penal - Copia

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Published by: Imperial Translations on Sep 03, 2013
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Criminal procedure Police questioning of arrestees When police officers make an arrest; they usually question (interrogate) the

arrestee (suspect) in order to obtain some evidence of guilt or developing leads (pistas) to additional suspects. When answering, the arrestee gives up two constitutional rights: - Right to remain silent (5th amendment) - Right to have a lawyer present during interrogation. The info obtained by police officers through the questioning of a suspect in police custody may be admitted as evidence at trial only if the arrestees where read the Miranda warnings. - You have the right to remain silent - If you do say anything what you say can be used against you in court of law. - You have the right to consult with a lawyer and have that lawyer present during the questioning. - If you cannot afford a lawyer, one will be appointed for you if you so desire. - If you choose to talk to the police officer, you have the right to stop the interview at any time. If the police questions a suspect without giving the suspect the Miranda warning, nothing the suspect says can be used against the suspect at trial (this is the exclusionary rule). Suspects may wave their Miranda rights by talking to the police officers after having been advised that they have the right not to. A valid arrest: an arrest is valid if the police has probable cause (causa probable), but in some cases (eg; if the arrest takes place in a public area) no warrant (orden de arresto/acta de detención en Arg) is needed (for ex, Comission of a felony (delito grave) or a misdemeanour committed in the presence of the officer). - Arrest: To isolate the defendant; top take into custody by law enforcement officers (Police, FBI, etc) against her will. It requires physical application of Force by a police officer or a submission to an officer’s show of force. - Stop and Frisk: detención y cacheo/palpar a la persona. - Stop: The police have the authority to detain/stop a person briefly (temporary and no longer than necessary) for questioning without a probable cause to believe that this person has committed a certain crime. It is not an arrest. There must be an observation of unusual conduct, leading to a reasonable suspicion of the commission of the crime and the ability to point to specific and articulable facts to justify that suspicion (investigatory stop) there is no rigid time limit for the length of the stop. - Frisk: Patdown of a person’s outer clothing for instruments of assault. A police officer may frisk (palpar) a person if the officer reasonably suspects he is in danger. The Stop and Frisk rule: Police need reasonable suspicion of criminal behaviour to detain and question a person (stop) and at the same time carry a limited patdown search for weapons (eg knives , guns) (frisk). It applies whether you are on foot or in your car. - Arrest and arrest warrant: Police officers may take a suspect under arrest only if they have probable cause to believe that a crime was committed and that the suspect did it. The police shall read the suspect the Miranda Warnings. - Arrest Warrant: is an official doc signed by a judge or magistrate (judicial officer) authorizing a police officer to arrest the persons named in the warrant (which identifies the crime).

Arrest warrants are requested by the police to a judge or magistrate by submitting /filing a written affidavit (written statement under oath) which contains sufficient factual information to establish probable cause that a crime was committed and that the person named in the warrant committed it. Unwarrant arrest: When a crime is commited in the officer’s presence or if the officer’s has probable cause to believe the suspect committed a felony. - Search (allanamiento) and seizure (confiscación/secuestro) - Search is defined as any governmental intrusion upon a person’s reasonable and justifiable expectation of privacy. - Seizure: is defined as the exercise of control by the government over a person or things. - Search warrants: It’s an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time. It must be based on probable cause. It must be supported by oath (juramento) or affirmation (“una especie de declarac jurada”- explicar). It must be specifically described what is to be searched and seized. It must be issued by a neutral magistrate (judicial officer). The police obtain search warrants by providing a judge or magistrate with the information the police have gathered. This information is provided in a written document called affidavit (written statements under oath). A warrant must describe with reasonable certainty the place to be searched and the items to be seized. If not, it is unconstitutional. Only police officers may execute (formalizar) a warrant. While executing a search warrant, the police may detain persons who are present on the premises while the search is conducted. Search warrants shall be executed without unreasonable delay during daylight hours unless night searches are authorized. The scope of the warrant may not exceed the premises described in the warrant. Police officers do not need a warrant to make a search “incident to an arrest” to search for weapons and protect evidence. Criminal Pretrial proceedings 1) 2) 3) 4) 5) 6) 7) 8) Identification Procedures Preliminary Hearing Bail (caución) Indictment Information Right to a Speedy Trial Government’s Obligation to Disclose (divulger) Info and Notice of Defenses. Competency to Stand Trial and a Time of Execution.

1) Identification procedures a) Lineups (rueda de reconocimiento): A lineup consists of five to six person (one is the suspect) while the others are police officers or persons who resemble the suspect according to the eyewitnesses (testigos presenciales) description. The witness shall make a positive identification. b) Showups: It’s a one on one identification procedure. An eyewitness views a single suspect at a police station or at the crime scene.

c) Photo identification: Eyewitnesses view photographs, tipically head shots (mug shots) in a police department’s files. The Booking (or criminal report) Process (formulación del prontuario) It’s conducted by a jail booking officer to identify arrested persons and prepare suspects for identification. Booking creates an official arrest record (prontuario) Steps 1) Recording the Suspect’s name and the crime for which the suspect was arrested. 2) Taking a mug shot. 3) Taking the suspect’s clothing and personal property into police custody. 4) Taking fingerprints. 5) Conducting a full body search. 6) Checking for warrants (other charges pending in other states). 7) Health screening (x rays - tuberculosis, blood tests- sida) 2) Preliminary Hearing It’s a judicial proceeding that occurs between the time of a suspect’s arrest and trial. It serves 3 purposes: - To determine probable cause for an arrest and detention exists. - To set bail or some condition for pretrial release. - To review the prosecutor’s decision to charge the accused 3) Bail Bail is cash or its equivalent Bail Bond that a court accepts in exchange for allowing a defendant to remain at liberty until the conclusion of the case. Its function is to assure the presence of the accused at trial. If a defendant fails to appear in court, the bail is forfeited (ejecutada) and an arrest warrant is issued/rendered. Bail jumping (not returning to court when required) is a crime. Cash bail is refunded to the defendant who posted full cash bail whether a defendant is convicted after trial, pleads guilty before trial, or gets the charges dismissed. Defendants are brought before a judicial officer within 24 to 72 h of arrest at an initial appearance (comparecer o estar a derecho). At this hearing, judicial officer will: a) Inform a defendant of her rights b) Set bail or other conditions for pretrial release c) Appoint a counsel if Defendant is indigent. No right to bail exists in capital cases. Own Recognizance Release (Release O.R) (caución juratoria) It’s a no cost bail. Defendant released on their own recognizance need only sign written promise to appear as required. It may be under certain conditions (and if these are not fulfilled, an order for arrest is issued) or if he fails to show up. From Suspect to Defendant (accused)

- Felony: serious crime punishable by more than a year in a state prison (penitentiary) (murder, rape, burglary, sale of illegal drugs). - Misdemeanor: less serious crimes punishable by up to a year in a county jail (shoplifting, drunk driving, assault, possession of unregistered firearm) - Infractions (petty offenses): violations involving traffic laws. Defendants are charged with a monetary fine. The Mechanics of Charging There are two procedures which Prosecutors may follow to charge a Defendant, depending on local policies and the seriousness of the crime. a) Misdemeanors: prosecutor files a criminal complaint, information or a petition directly to court. b) Felonies: The prosecutor may file an information or an indictment handed down by a grand jury. Eastern against other States require indictments filed before the Grand Jury. The rest of the States allow prosecutors to choose (indictment or information). The Federal Government shall use Grand Juries in all felony cases. Indictement Acusación formal presentada ante el Gran Jurado. It is a written accusation submitted to a Grand Jury by that charges a person with a crime. The Grand Jurors decide if there is probable cause of the commission of the crime by Defendant or of the person should not be prosecuted. The Grand Jury will endorse the Bill of Indictment with the words “A true Bill” if there is probable cause, “not true bill” if the person should not be prosecuted. Grand Jury proceedings are secret. Grand Jury need not be unanimous to issue an indictment (number of jurors between 16-23(Federal)/15 to 23(State). Grand Jury Decide whether to indict suspects/charge them with crimes Meet in secret Serve for longer periods that coincide with a term of Court (6 to 18 months) Composed of 15-23 jurors; 16-23 (Federal courts) Not unanimous to indict (Federal System only the decision) Petit Jury Decide if defendants are guilty. Serve during public trials Jurors serve for a short period (usually 10 days) Composed of 6-12 jurors Unanimous verdict to convict a defendant

Information: It’s a written accusation prepared by a Prosecutor in the name of the state charging a person with the commission of a crime. It’s used to charge persons with criminal offenses, when a Grand Jury indict is not required or has been waived by the accused. Joinder of offenses of Defendant: (concurso de delitos) Federal Rules and many State rules: an inform or indict can charge 2 or more offenses that are connected together in their commission or are of the same or similar character.

Also, two or more Defendants may be charged in the same information or indictment if they participated in the same crime as series of crimes charged. Diversion: Process in which a person does not have to answer to criminal charges if she cooperates in a type of informal probation. Defendants whose cases are diverted generally have to participate in a treatment or rehabilitation program. Right to a Speedy Trial (6th Amendment): In all criminal prosecutions the accused shall enjoy the right to a speedy trial in order to relieve the Defendants of unnecessary consequences of being accused of a crime (eg. Pretrial incarcelation lost of employment, public scorn, etc. and to promote the interest of society in promptly disposing of charges to enhance proper administration of justice) This right attaches only after indictment, information or arrest of the accused. Detainer: A detainer is a request by one jurisdiction to another jurisdiction to advise the incarcelated defendant of the right to demand a speedy trial in the requesting jurisdiction. A defendant may waive the right to a speedy trail under the Interstate Agreement on Detainment (IAD) Government’s obligation to Disclose Info and Notice of Defenses (6th Amendment): In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation. It requires the indictment (or other charging documents) give the Defendant sufficient detail so that he will be prepared to present an adequate defense. The government has a duty to disclose material exculpatory evidence to Defendant. Some states provide that the Defendant shall give information to the prosecution prior trial. Competency to Stand Trial and Time of Execution. Incompetency to Stand Trial is not a defense, it’s a bar to trial and depends on Defendant’s mental condiction at the time of the trial (Insanity is a defense to a charge and depends on a defendant’s mental condition at the time of the crime). A defendant who is incompetent to stand trial can’t be tried but if later she regains competency, she can be tried and convicted. A funding of incompetence suspends the criminal proceedings. A defendant may not be executed if incapable of understanding the nature and purpose of the punishment. The Trial Right to Counsel Indigent defendants are entitled to free legal representation (court appointed attorneys) only if there’s an actual risk of a jail or prison sentence. Defendants should always hire an attorney. Self-representation Defendants can’t represent themselves unless a judge determines that they are competent to do so. Courtroom players Judge (conducts hearings) seated at the bench wearing a black robe makes ruling concerning preliminary hearings and …. He determines how cases will be tried subject to established legal rules of evidence of procedure. He makes legal ruling during trial (admits/excludes certain evidence). Judge: - decides on the guilt/innocence of Defendant (in cases of non jury trial). - instructs the jury on the law they must follow to decide the Defendant’s guilt/innocence (jury trial).

- sentences convicted defendants following a guilty verdict or negotiated plea of guilty. Court: Bench: Magistrate: Commissioner are sometimes used interchangeably with “judge”. Justice: a judge in the highest appeals Court in a State or US Supreme Court. Commissioners and Magistrates: are lawyers appointed by the judges in a court system. Judges may delegate full judicial authority to magistrates and commissioners or limit them to certain types of cases or functions. Courtroom Clerk: Court officials who work for particular judges. - verifies parties are present in court. - prepares bench warrants together with judge for defendant’s arrest. - prepares and keeps court calendar (docket) which lists dates /times for trials, etc. - prepares court orders for judge to sign (ex motion to exclude evidence) - keeps custody of exhibits entered as evidence in a case. - administers oaths to witnesses, jurors, interpreters. - keeps custody of case files kept and stored in the Court Clerk’s Office. - assist the judge during hearing or trial by marking and handling documents and other exhibits. Case files: legal papers (indict, bail orders, documents) related to the case which have been filed. Law clerk: He is lawyer or law student who research legal issues and assist with legal questions that may arise prior to and sometimes even during trials. He helps draft written documents (findings and conclusions) that judges produce to explain their rulings. Bailiff or deputy sheriffs: they are uniformed armed peace officers, court officials who maintain order in courtroom; removing disruptive expectators, tell the attendees where to stand, escort juries to and from jury room and jury box. Court reporter (or tape recorders) -record every word that is said. - read back testimony of a witness etc to the judge. -prepare transcripts for a fee upon request of parties /judges. Interpreters Appointed by the Court to translate for Defendant (or victims) who have substantial difficulty speaking/understanding English (Court Interpreters Act). Jurors Randomly drawn form the Court’s geographical area (from voter or motor vehicle registration lists) to evaluate evidence during trials and render verdicts. They decide,

according to the evidence, whether the defendant is guilty beyond a reasonable doubt of the charged crime. Parties: Prosecutor (Government (State or Federal) bringing the charges. Prosecution: People Defendant (accused) Self represented defendant: Pro se defendant, for oneself, pro per, in propia persona. Lawyers: Attorneys: counsel: counsellor: legal representation of either defendant (Defense Counsel) or Government (Prosecutors: district attorneys, state’s attorneys, city attorneys). Arraignment The arraignments are usually held within 48 hours (as quietly as possible) of a suspects arrest (excluding weekends and holidays) if suspect is in jail. If suspect had to pay bail (was bailed out) or was summoned through a citation, arraignments occur several weeks later. Object: To give the Defendant’s written notice of the charged crimes and to take the Defendant’s plea. TRIAL In a criminal trial, a jury examines the evidence to decide whether, “beyond a reasonable doubt”, the defendant committed the crime in question. A trial is the government’s opportunity to argue its case, in the hope of obtaining a “guilty” verdict and a conviction of the defendant. A trial also represents the defense’s chance to refute the government’s evidence, and to offer its own in some cases. A complete criminal trial typically consists of six main phases: 1) 2) 3) 4) 5) 6) Choosing a Jury Opening Statements Witness Testimony and Cross Examination Closing Arguments Jury Instruction Jury Deliberation and Verdict

1) Choosing a Jury The judge will question a pool of potential jurors generally and as to matters pertaining to the particular case- including personal ideological predispositions or life experiences that may pertain to the case. The judge can excuse potential jurors at this stage, based at their responses to questioning. The defense and the prosecution may exclude jurors through use of “peremptory challenges” (for any non discriminatory reason) and challenges “for cause” (if the person cannot be truly objective). 2) Opening Statements

Once a Jury is selected, the first “dialogue” at trial comes in the form of two opening statements- one from the prosecutor on behalf of the government, and the other from the defense. Because the government has the “burden of proof” as to the defendant’s guilt, the prosecutor’s opening statement is given first and is often more detailed than that of the defense. 3) Witness Testimony and Cross Examination “Case-in-chief”: the stage at which each side presents its key evidence to the jury. Eyewitnesses and experts are called to testify. Once the prosecution and defense each have had the opportunity to present their case and to challenge the evidence presented by the other side, both sides “rest” (no more evidence will be presented). 4) Closing Arguments It offers the government and the defense a chance to “sum up” the case. This is the final chance for the parties to address the jury prior to deliberation. The government seeks to show why the evidence requires the jury to find the defendant guilty. In turn, the defense tries to establish that the government has fallen short of its “burden of proof”. 5) Jury Instructions The judge gives the jury the set of legal standards it will need to decide whether the defendant is guilty or not guilty. The judge also describes key concepts, such as “guilt beyond a reasonable doubt”, and defines any crimes the jury may consider, based on the evidence presented at trial. 6) Jury Deliberation and Verdict The jurors consider the case through “deliberation”, attempting to agree on whether the defendant is guilty or not of the crime(s) charged. Once the jury reaches a verdict , the jury foreperson informs the judge who announces the verdict in open court. SENTENCING After a person is convicted of a crime, whether through a guilty plea, plea bargain, or jury verdict, the appropriate legal punishment is determined at the sentencing phase. Sentencing usually takes place almost immediately after convictions for infractions and minor misdemeanors, or when a defendant has pled guilty. In more complex criminal cases, such as those involving serious felonies, the sentencing judge usually receives input from the prosecutor, the defense, and the probation department (which prepares recommendations in a “pre-sentence report”.

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