Chapter 10- Introduction and Participants

Criminal Procedure: describes the methods used in bringing an alleged criminal to justice, puts
criminal law into action
- Each state and federal government has its own rules
A COMMON LAW ADVERSARIAL, AND ACCUSATORIAL SYSTEM
- All states except LA today are common law, brought from England by colonists
- Legal system is also adversarial: judge acts as the decision maker b/w opposite sides
rather than acting as the person who also makes the states case or independently
seeks out evidence
o Judge only becomes involved when needed in system, however, in US, judge
plays a bigger part in keeping fairness
o Parties mainly responsible for developing their case
o Criticism: fact finder bases judgment on polarized versions of same event,
rests on idea that there will be 2 equally competent competing parties
- Accusatorial: government, as accuser, bears burden of proving a defendants guilt
o If they fail, defendant is entitled to an acquittal
DUE PROCESS MODEL
- Focuses on integrity of individual rights, not rights of community
- Focuses on legal guilt: concerned with factual guilt (whether a defendant has in fact
committed the crime) as well as whether the defendants rights have been observed
and respected by the govt in the investigation and prosecution processes
- Less evidence required to establish probable cause searches than to bind defendant
over trial
PARTICIPANTS
Law Enforcement Officers
- Police, exist at national, state, and local levels
- Many agencies such as Coast Guard, US Marshalls, Secret Service etc.
Discretion
- Should keep peace, investigate, possible wrongdoing, enforce laws, crime prevention
- Have to exercise discretion b/c not all laws can be/should be enforced
- Also must comply with constitution, statutes, and department policy
Ethics
- IACP has set of ethical principles to guide their duties
- Have public trust and obligation not to violate the trust
- Should inspire confidence and respect for law enforcement officials, attempt to obtain
max public cooperation, enforce all laws with courtesy
Prosecutors
- Govt attorneys responsible for prosecuting violators
- Prepare and file docs, engage in pretrial activity, appear in court
- Also offer legal counsel to law enforcement officers
- Federal govt and each state have attorney general and district attorneys under them

Prosecutorial Discretion
- Have considerable amount of discretion in whether to prosecute a case
- Nolle prosequi: ending of a case b/c prosecutor decides or agrees to stop
o Sometimes requires judicial approval
- Ethical obligation requires they seek justice, not convictions
- Economics also a reason for discretion
o Cases must be prioritized, not all cases can be prosecuted because of lack of
funds, officers, prosecutors, investigators, etc
- Decisions motivated by improper criteria may violate equal protection
Ethics
- Model Code of Professional Responsibility and Model Rules of Professional Conduct
- Violations can result in discipline by the bar and/or an offended court
- Must be sure that a prosecution is warranted and seek dismissal upon discovering one
is not
- Can only request fair sentence from a court
- Must disclose evidence that mitigates the degree of an offense or reduces a sentence
- Also, at trial, must pursue conviction unless they become convinced the accused is
innocent
Judges
- Responsible for issuing warrants, supervising pretrial activity, preside over hearings
and trial decide guilt or innocence sometimes, and pass sentence in criminal law
- Must remain unbiased, fair and impartial
Ethics: Code of Judicial Conduct, must be fair, impartial, and be sensitive to defendants rights
and not imply a defendant is guilty to a jury
Defense Attorneys
Ethics
- High and morally challenging responsibilities
- Must represent accused, regardless of innocence
o Often dont know if innocent or guilty, may not even ask
o Defend rights of accused, not the acts themselves
- Communication b/w attorney and client is confidential
o Is allowed but not required to report a clients intention to commit a crime
- When they know client has given or intends to give false testimony (perjury), ethical
dilemma occurs
o Must examine laws of jurisdiction to help make decisions
- Representing co-defendants can create conflicts of interest
- Must continue on appeal unless new counsel is retained or court authorized
withdrawal
Legal Assistants
- Employed by prosecutors and defense attorneys
- May conduct interviews, do legal research, prepare drafts, organize files, contact
incarcerated clients, assist in preparing witnesses and defendant for trial, conduct
investigations
- Must also follow ethical guidelines
- Cant engage in practicing law: includes giving legal advice, establishing attorneyclient relationship, set fees, appear on behalf of a defendant

Victims
-

Bound by confidentiality rule

Must not suborn perjury when preparing witness or client for trial
Government is technically victim, there is also a victim-in-fact
Sometimes can affect whether there is an arrest or investigation conducted
May have to testify at hearings and trial
Can participate in sentencing hearing
Victim impact statements: at the time of sentencing, a statement made to the court
concerning the effect the crime has had on the victim or on the family
o Used in most states
Victim protection available
Can have civil remedies against perpetrator as well as the criminal prosecution
Many counseling and aid programs available

LIABILITY OF GOVERNMENTS AND THEIR OFFICIALS

- Officials not above law, but society doesnt want them threatened with every incorrect
decision, so action only taken for outrageous, malicious and shocking violations
- States provide many laws concerning remedies for improper government conduct
- Officials can claim certain immunity doctrines as defense
- Judicial immunity: acts judicial in nature shielded by absolute immunity
o Most judicial acts performed by judges
- Qualified immunity: free from liability but not necessarily from suit
o If officer acted maliciously or intentionally can matter
- Sovereign immunity: government is immune from lawsuits unless consent is given