American Criminal Courts (MyCrimeKit Series)

AMERICAN CRIMINAL comms ClgfRobers0n FmnI<],DiMarino 4 A ’é

ri x Cliff Roberson, LLM, Ph.D. Academic Chair Graduate School of Criminal justice, Kaplan Universigz Emeritus Professor of Criminal justice, Washburn Universigz Frank DiMa.rino, LLM Dean, School of Criminal justice, Kaplan Universig; Executive Editor; Professional Issues in Criminal justice journal Prentice Hall Boston Columbus Indianapolis New York San Francisco Upper Saddle River Amsterdam Cape Town Dubai London Madrid Milan Munich Paris Montréal Toronto Delhi Mexico City Sao Paulo Sydney Hong Kong Seoul Singapore Taipei Tokyo

Vice President and Executive Publisher: Vernon Anthont Senior Acquisitions Editor: Enc Krassow E.dlt0rla.l Assistant: Lynda Cramer Media Project Manager: Karen Bretz Director of Marketing; David Gesell Senior Marketing Manager: Adam Kloza Senior Marketing Coordinator: Alicia Wbzniak Production Managerr Holly Shufeldr Creative Director: jayne Conte Cover Design: Suzanne Duda Cover I1lustrati0n/ Photo: Fotolia Pul.l·Servlce Project Managem¤1!/Cnmposltiom Nitin Agarwal/Aptarag. inc. Printer/Binder: Edwards Brothers Cover Printer: Lehigh-Phoenix Color Copyright © 2012 Pearson Education, Inc., publishing as Pearson Education, 1 lake Street, Upper Saddle River, Newjersey 07458. All rights reserved Manufactured in the United States of America. This publication is protected by Copyright, and permission should be obtained from the publisher prior to any prohibited reproduction, storage in a retrieval system, or transmission rn any form or by any means, electronic, mechanical, photocopying. recording, or likewise To obtain permrssion(s) to use material from this work, please submit a written request to Pearson Education, [nc , Permissions Department. Pearson Education, 1 lake Street, Upper Saddle River, New jersey 07458, Library of Congress Cataloging-in·P•|b11catlon Dau Roberson, Cliff American criminal courts / Cliff Roberson. Frank DrManno P CW Includes index. ISBN-15 978-0-13-$1111176 ISBN-10 O-15-511111-0 1. Criminal courtwtlnited States Z Criminal yustice. Administration of—!Jnrted States 1 Title KF9225.R59 2012 545.7501--dc22 2010034540 10 9 B 7 6 5 4 1 2 1 Prentice Hall is an imprint of ISBN 10 O-15511111-0 V V wWW.peIr!¤NhIgl\eIed.C¤m ISBN 15. 97E-0-15511111-6

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11 Chapteri • Our Criminal Courts If t.he act violates both state and federal law, the case may be tried in both. For example, if a police officer uses excessive force in the arrest of a suspect, the officer may be charged with assault and battery in state court as a violation of that state’s criminal code. ` The officer also may be tried in federal court if the officer's conduct also violates the federal civil rights of the suspect. I Federal courts may not decide issues originally tried in state courts unless there is a federal question involved, for example, the state criminal coun conviction infringed a right protected by the U.S. Constitution or a federal statute. For example, the police officer discussed above is tried in state court for assault and battery. During the trial, a statement made by the officer is used in evidence against her. After conviction, t.he officer files ` a writ in federal court alleging that the statement was taken in violation of her federal constitutional rights under the Fourth and Fourteenth Amendments to the U.S. Constitution, Whether or not the statement was taken in violation of her federal constitutional rights is a federal question and may be decided by the federal courts. State courts are required to protect an individual’s federal rights and those rights guaranteed by the state constitution or state statutes. Accordingly, while state courts are responsible for protecting a person's federal civil rights, the court normally has no jurisdiction to try and punish a person for violations of U.S. criminal laws. lf exclusive federal jurisdiction exists or me offense is only a federal cri.me, then a state court has no jurisdiction. The state supreme court or court of criminal appeals is the highest court of appeal for state criminal cases that do not involve federal issues. The decision of a state supreme court that a particular practice violates the state constitution is not subject to review by the U.S. Supreme Court (Payton v. Mw York, 1980). In most states, death penalty cases are reviewed automatically by the state supreme court. The state supreme court generally has original jurisdiction (along with court of appeals and superior courts) in habeas corpus proceedings. ln other criminal cases, the state supreme court accepts only those cases decided by the court of appeals. Except in death penalty cases, an accused generally has no absolute right to have the state supreme court decide his or her appeal of a criminal conviction. The state supreme court may in most states, before a decision is entered, order a case transferred from a court of appeal to the state supreme court. The state supreme court generally also may review any decision of a court of appeals. State supreme courts generally do not have the jurisdiction to render advisory opinions (Younger rz. Superior Court 1978). Accordingly, there must be an actual case or controversy pending in the court before an opinion will be issued. For example, New LAW IN ACTION The coun of last resort tor citizens in Arizona is the Arizona Supreme Court. Following is a description of the court. it is very typical to most state courts One interesting fact regarding this coun is that the justices must retire at the age of 70 Contrast that with the history of the U.S. Supreme Court where many of the justices senze well into their 80s and even 90s Another interesting iact is the requirement that the justice have been a resident of Arizona for at least ‘l0 years priorto appointment While Arizona requires that thejustices to the state supreme court be attorneys, there is no similar requirement for membership on the UTS. Supreme Court although there has never been a non·Iawyer appointed to that court. The Arizona Supreme Court The Arizona Supreme Courts primaryjudicial duties under Article Vi, § 5 of the Arizona Constitution, are to review appeals and to provide rules of procedure for all the courts in Arizona it is the highest court in the state of Arizona and is often called the court of last resort.

1l Chapter 1 · Our Criminal Courts Jersey enacts a new statute making it unconstitutional for a citizen to move from one county in the state to another county in the same state. In most instances, the New jersey Supreme Court would not issue an opinion as to the validity of the statute until there is an actual case involving the statute before the court. Courts of appeals decide appeals from superior or district courts and have original jurisdiction in habeas corpus proceedings. In most cases, an accused has a right to have his or her appeal of a criminal conviction in superior or district ooutt decided by the court of appeals. Superior or district courts are considered as courts of general jurisdiction and have original jurisdiction in all cases except those given by statutes to other trial courts. Superior or district couns have jurisdiction to try misdemeanors not otherwise provided for and felonies (criminal offenses punishable by death or by imprisonment ln the state prison). Generally, a superior or district court has no jurisdiction over a case charging only a misdemeanor in a county with a county, municipal, or justice court, Superior or district courts in most cases have appellate jurisdiction in criminal cases that are tried in county, municipal. and justice courts. Municipal, county, and justice courts usually have jurisdiction in criminal matters as follows; 1. to hear and decide cases involving misdemeanors and infractions; 2. to conduct the following procedures in felony cases; a. arraignment, It. bail setting and reduction, c. accept pleas, and d. preliminary hearings; and 3. to issue search and arrest warrants. JUDICIAL DECISIONS Most state constitutions provide that no judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirectlon of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. COURTS IN ACTION D0 you agt•• with dtl•fJtn1I¤ John Jay. that |url•| |r• the best judges of hcts1 How do you dlstlngulsh hetwnn n question nfhcund n quntlon of Inf! Cltlef Justice John Jay. U.S. Supretna Coun on tho provlnm of the jury Georgia v, Bratisiord, 3 U S, 1, 4 (U S 1794) It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of lact, it is the province of the jury, on questions of law, it is the province oi the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves tu judge of both, and to determine the law as well as the fact in controversy On this, and on every other occasion, however, we have no doubt, you will pay the respect, which is due to the opinion oi the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully within your power of decision

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16 Chapter 1 · Our Cmnt;-tal Courts credibility that [it] permits the jury to be satisfied beyond a reasonable doubt that the People have proven their case. . . Crimes are defined by elements. The focus of a trial is to determine whether or not the prosecutlon can prove each of the elements of a crime beyond a reasonable doubt. During the course of a trial, things happen. You hear testimony You can spend your deliberation time trying to resolve each and everything that you heard My suggestion is you try to resolve only the things that you need to resolve in order to make a determination whether the People have proven the elements of a charge beyond a reasonable doubt Ajury makes factual findings. The elements must be established beyond a reasonable doubt if they're going to be established at all. . . What your concern is: Did the People prove beyond a reasonable doubt the elements of a robbery; and, equally, if not more importantly the accuracy of the identification of Mr. Burvvell and Mr Brown as the person or persons involved in the crime. . With regard to identification cases, as this is, it’s the judges responsibility to focus the jury on the considerations that a jury should go through in deciding whether or not the People have proven an accused's guilt beyond a reasonable doubt I'll go through these things. But, with respect to the credibility factors and the identification considerations, you'|l see that an intelligent, functioning adult human being instinctively would think of or examine, assess virtually all these things, if not all these things, in trying to determine whether the People have met their burden. First of all, you’ve got to decide the credibility of li/lr. Degll-Adalberti, as well as any other witness. Because only by initially making factual decisions do you have a basis on which to draw your ultimate conclusions Vou've got to decide what facts you're working with. That means you’ve got to decide as the witnesses are conveying testimony here, is their testimony accurate and credible. So, with respect to whether the identification is truthful, that is not deliberately false, you must evaluate the believability of the witness who makes an identification. In doing so, you may consider the various factors for evaluating the believabillty of a witness' testimony that I listed for you a while ago with regard to whether the identification is accurate... These factors are common sense things that any intelligent person would assess in making the determination whether the defendant or defendants are correctly identified. You heard me say crimes are defined by elements. Essentially, there are three elements with regard to robbery. . . So, there are three elements, each of which must be proven beyond a reasonable doubt. Was there a theftT Ordinary meaning. Was there force used7 Force is any physical force beyond some incidental touching And, was there a person present vvho was present, ready willing and able to aid in the commission of the robbery, the theft. . . Those three elements have to be proven separately as to each person, li/lr. Burwell and Mr. Brown If the People prove the three elements as l've just described them beyond a reasonable doubt, each one of them, then you have no choice, you must convict the person If the People miss any one or more or all of the elements, miss proving that beyond a reasonable doubt, you have no choice, you have to acquit the person. . . Does the jury unanimously agree as to the charge against Mr. Bunxvell, as to the charge against Mr Brown? When you get into the jury room, conceivably, there would be disagreements among you Not surprising. The two most important civic functions that people do are to vote and to serve on juries. And for centuries elections have been closely decided. 50.i beats 49.9 every time, and then you're stuck with somebody for two, foun six or in the case of some judicial elections fourteen long years. And, yet, for 230 years now, juries, the same pool of people who can't agree on a candidate, have been unanimously deciding cases. So, how does that happen? It happens, obviously because within the jury deliberation context, people sometimes change their minds

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Chapter 3 • Thejudicial Process 49 COURTS IN ACTION Wi-Fi for Jurors According to the Charlotte Observer, Mecklenburg County, N.C., is trying to make jury duty less of a chore. The juror assembly room in the downtown Charlotte courthouse has free wireless Internet, a business center, a day care center and even a place where mothers can pump breast milk. There's a 90-minute lunch break and two movies are offered. The courthouse provides free popcorn. Court officials recognize most people don't look forward to jury duty, so the amenities and services aim to make performing the public obligation more pleasant, officials said. Of course, there’s another incentive to performing your civic duty. Those who don't show up may have to explain their absence to a judge. The efforts seem to make a difference. The benchmark-setting National Center for State Courts says fewer than five percent of jurors should be no-shows. In Mecklenburg County, four percent of those called from motor vehicle and voter registration records never show up. [Cleve R. Wootson, lr "Comfort in the courthouse" Charlotte Observer, Monday, Aug. O2, 2010, B·1; web site http;//www. charlotteobsen/er.com/2 O1 0/08/02./1 5961 24/comfort-in-the-courthousehtml#ixzz0vlyjcJAq Accessed on August 7, 2010.] 7. Reading of charge and plea 8. Opening statement by prosecuting attomey 9. Opening statement by defense (this may be waived entirely or until prosecution rests) 10. Calling of first prosecution witness and administration of the oath 11. Direct examination 12. Cross-examination (may be waived) 13. Redirect examination (may be waived) 14. Recross-examination (may be waived) IS. Calling of additional prosecution witnesses, administration of oath, direct examination, and other procedure as in case of first witness 16. Prosecution rests 17. Motion for judgment of acquittal by defense (if denied, then the following procedure) 18. Opening statement by defense (if not previously given) 19. Calling of first defense witness and procedure followed as in case of first prosecution witness 20. Defense rests 21. Rebuttal presentation by prosecution 22. Closing arguments by prosecution and then by defense 23. Rebuttal closing argument by prosecution 24. Instructing the jury 25. Deliberation 26. Retum of verdict (if guilty verdict returned, then the following procedure) 27. Request for new trial by defense (if denied, then the following procedure) 28. Sentencing the defendant if adjudged guilty.

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Chapter 5 • Thejudicial Process 55 showing is made, adds to that burden. it seems apparent that there are times when to deny this privilege prior to trial might result in the hearing itself being delayed—at a considerable expense to the State—whi|e such an examination or tests are made, We believe justice dictates that the defendant be entitled to the benefit of any reasonable opportunity to prepare his defense and to prove his innocence. We are of the opinion that such a rule is in the interest ofjustice, and that it is left to the sound discretion ot a trial court when a proceeding is pending therein as to whether such inspection and examination should be allowed or not. (1965) that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” The court noted that the governments obligation to disclose exculpatory information includes evidence that may be used to substantially impeach the credibility of a government witness. The court concluded that the touchstone of the governrnents disclosure obligations is tl1e *materiality“ of the information, that is, evidence for which there is a reasonable possibility that, had tl1e evidence been disclosed to the defense, the result of the proceeding would have been different. The court noted that the defendant in the instant case was seeking information relating to the reliability of the confidential informant (Cl) who provided information in connection with the search warrant. The court concluded that there was no question that in analyzing a warrants validity, a court may assess a source’s reliability or personal background. [The court then ruled that a motion for discovery was not the proper procedure to attach the sufficiency of a search warrant.] The court then held that the defendants request for reliability infomation conceming the CI who provided information in connection with the search warrant was denied, subject to renewal if the defendant submits evidence that the search wan·ant affidavit contained false information and that absent such evidence the court lacked probable cause for the warrant. Frosecuti¤n's Right of Pretrial Discovery Rule 16 of the Federal Rules of Criminal Procedure grants to the government (the prosecution) almost the identical rights of pretrial discovery that are granted to the defendant. More states in the future may follow the precedent set by the federal government in granting the right of pretrial discovery to the prosecution Most states that recognize the right to pretrial discovery have granted little pretrial right of discovery to the prosecution. This trend supports the contention that the right of pretrial discovery is a one-way street. The most convincing argument against allowing pretrial discovery by the prosecution is that the right would compel the defendant to be a witness against himself or herself. Many legal scholars are at a loss to understand how furnishing the names and addresses of witnesses or the defense to be used—such as an alibi or insanity defense—would be self-incrimination, but there are state courts that have prohibited the prosecution from exercising the right of pretrial discovery upon the sel.t'-incrimination claim. In addition to the self-incrimination allegation, the supreme court of one state has held that the prosecution must prove the defendant guilty beyond a reasonable doubt and that any discovery by the prosecution that would lessen that burden is not pemtissible. It is almost impossible to imagine any discovery that would not, in some respect, lessen the burden of the prosecution. This holding by that court has been highly criticized in legal circles as being too restrictive and without merit.

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Chapter 4 · Federal Courts 73 COURTS IN ACTION Fair Sentencing Act of 2010 For three decades, individuals convicted of crack offenses faced far harsher penalties than defendants convicted of stmilar offenses involving cocaine powder. A person in possession of 500 grams of powder cocaine would face a five-year mandatory minimum sentence. Crack offenders would face the same penalty for a mere 5 grams. The Fair Sentencing Act of 2010 [Public Law No: 111-220] reduces the sen· tenclng disparity to 18 to 1, meaning that a person convicted of selling 28 grarns of crack would face the same five-year mandatory minimum as someone with 500 grams of cocaine. The law also eliminates mandatory minimum sentencing for simply possessing crack cocaine. The U.S. Sentencing Commission says that between 5.500 and 6,000 offenders are sentenced for crack offenses each year. The law will reduce by up to 27 months sentences for about 3,000 offenders each year. According to the Washington Post, for the past three decades most of those arrested for crack offenses were mostly young, African American men and they faced far harsher penalties than the white and Hispanic suspects most often caught with powder cocaine. A person found holding 500 grams of powder cocaine would face a five-year mandatory minimum; crack offenders would have to bein possession of a mere S grams to face the same obligatory sentence Crack offenders faced a 10-year mandatory minimum for carrying 10 grams of the drug; the same penalty would not kick in for a powder-cocaine suspect unless caught with 1,000 grams. ["Editorial: The Fair Sentencing Act corrects a long-time wrong in cocaine cases" Washington Post, August 3, 2010, p. A-18] Georgia. Each division may have a federal courthouse and is the location for the trial of cases arising from among select counties assigned to that division. District courts are among the busiest in the nation. Not only do district courts hear civil cases involving large sums of claimed damages involving personal injury and contracts, but also they hear criminal cases. The number of criminal cases continues to grow, NF Quit Fish . W . gl M ¤itlig§,,;iex.r. l ’ t*=¢¤**§ · se ri. ·* ililliiiilillilli .rt riiiifllgyr. ¤~r “· ’ , · . . , . Q rt=gg::""vl· ._ _i ; _ in . ·- si y · ll ‘ dh ,t §l·§§l§s:;l3lf§llg¤ iv; §¥’g·3;;ii·r:tllllj,.E;Z;;. _.r·rs;· ci` i yM..g;»;ti.{€{,rli in iillrmt :2..;;, ., »» _ ,_· M ‘ Qril regs; ~ Jllrtlzrt ary t ·\ ne ·~ r ‘ r §g£s··l*¤l· _tg;;t<.r•e,“;L — M¤ [til .¢ "$l§ll§i·§tti§l~;¤Q .2· i °° W will lilfllls•1•$l=*·*·¢‘2ll "l’;··*· FED ir ..,..=:;»rrm . ymmlm L >`;}m1£liI..;.£\?;]trr ¤»< §,;;;;,· ,!l,,,,,..._ msi ¤· [ 'iti§§{§ ,iiti:sillli»lrg2§§§ll · » 4 ·;a.a, · ~ rat , ui; r ., . . ll'l¢:i•r(l§"}l;riJl -- · $212; ; Lvl V 5 .. .; ·-·· gg §§gii;!$' ,lé;·se;tg9lt •rmt** ‘ l { i itlilg ,;§;}i¥ V, ’ll¥lts· iter. M ` Qlllllroillllh ‘ " I aw au *" *" wig neun: 4-: u.s. Courts or Appeals Circuits and u.s. District Courts

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Courtroom Work Group to an expert witness, generally, cannot testify to opinions, inferences, impressions, or conclusions. Conclusions are within the domain of the jury sitting as the fact finder in a criminal prosecution. An expert witness, on the other hand, may testify as to her opinion. There are several qualihcations to this general rule. First, the expert witness must be qualified as an expert by specialized knowledge, skill, experience, training, or education to the extent that her opinion would probably aid t.he jury to determine the facts. It is sufficient that the expert be qualified on only one of these grounds. This means that an expert witness need not be a formally educated scientist or physician, although some are, but may be a tradesman, such as a plumber or carpenter, or other professional, such as a policeman. What is LAW IN ACTION Eyewitness identifications Eyewitness identification is vital to the prosecution of many criminal cases. When the victim of a crime is called upon to testify about the identification of her attacken the iury takes special notice about the certainty and verification of the perpetrators identity The victim is asked· "Do you see the person who committed the crime in the courtroom?" When the answer is a point of the witnesss finger to the defendant seated at counsel table with the confident words, "lt is hirn," the evidence is difficult to rebut. Recent research, howevet has begun to question how accurate is visual memory. The CBS News Show "60 Minutes” reported on a 1984 case in which 22-year-old college student Jennifer Thompson was raped in her off campus apartment. She studied her attackers face the best that she could and identified the perpetrator three days later in a photo array and later in a physical lineup. At a trial, based upon Thompsons in-court identilication, Ronald Cotton was convicted and sentenced to prison. After 1 1 years, Cotton was released because his DNA did not match the DNA at the crime scene. It was a case of mistaken identity and an innocent man was convicted. Now Thompson and Cotton speak together at conferences as advocates for the reform of the eyewitness identification process To see more about this fascinating case. view the video and read the report, go to this link; www.cbsnews.corn/ stories/2009/03/06/60minutes/maln4B4BO39_page3.shtml?tag=coriter1tMain;contentBody Excerpts from Jones in State, 213 Ga. 213 (Ga. 2000) When a trial court concludes that an identification procedure is impermissibly suggestive, the issue becomes whether, considering the totality of the circumstances, there was a substantial likelihood of irreparable rnisidentificahonl If not, then both the pretrial and in-court identifications are admissible. Factors to be considered in determining whether there was a substantial likelihood of misidentification include: (1) the witnesss opportunity to view the accused at the time of the crime; (2) the witnesss degree of attention; (3) the accuracy of the witness's prior description of the accused; (4) the witness's level of certainty at the confrontation with the accused; and (5) the length of time between the crime and the confrontation. The ultimate question is, whether under the totality of the circumstances, the identification is reliable. The admission of expert testimony regarding eyewitness identification is in the discretion of the trial court. Where eyewitness identification of the defendant is a key element of the States case and there is no substantial corroboration of that identification by other evidence, trial courts may not exclude expert testimony without carefully weighing whether the evidence would assist the jury in assessing the reliability of eyewitness testimony and whether expert eyewitness testimony is the only effective way to reveal any weakness in an eyewitness identification. Howeven the admission or exclusion of this evidence lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.

e vA''A *Z·“ 3% ' A V~‘· .·’r f ¢‘· i ; ·: V’V,,V ;, . ‘ ,#‘ra T ·· '.·& ,g‘>,,,,.Q§ji;§lg ·.’‘. , ,V ,v;‘‘‘ ? l ; i=" YH ··7Tr?’??{ -''` Q Z, — »:¤·.m¤·.#· · · re. ¤ . · .t · · _ T ‘ · ,· ;,,, ,‘’v ; vv’*vy. ‘ ‘ ‘ ·y‘,, . Yi Vv·V·VV 1 T ¤ it t ‘ 1 : ·*·· “ . .· V g . `''‘”” V ».= mzzzzeziremasees.; - · · `L¤ ~ jet ·: ,·,., .. i ; .$·vv · J W.., ‘·;‘“ ~ 2f"_§=* · ··· ···’ , ·: , ,,,,, 'A ·H *A ;—tm—te ~;;i melt; —_r¤ at>=¤¤»<¤¤¤t¤¢#~2aas4;eztzwzzzse<~éteiz22222s’:=zs=z:zezzszzaziszzsszsstsazzszase <;ezzz=2szz==;at222itzsszzzsssstztzeszzzzzssatz;»¢e~¤zz22=w~t.,::.r···;~» ~z · ·A · ' °‘h?¥?P¥*?*T¢??*P¥€i¥¢**$ii*f% ZE [ I . “ ``'` ” zi; €§2‘i?Y¥E* ii n Atttiiitéys zs·we1:1‘as titlxcrs rnayiberheld contemptrmore than once during atrial and may bexfij Tg , » ti . il prrnishedtfoiteacli tiiziethey are so helcl. . A " ' ' “Z ..r' ¤ Tlre.1J,$. Supreme Court has hcldthat under these circumstances, the offender is entitled to at html on f T ` V _ l the contempt charge, . 1 I . V ' 1 ¤ if the judge waits until the eonclutairm of the trial to take the contempt action, the offender is entitled ' ` to a trial an the contempt charge, ¤ Defense counsels are held in contempt more frequently than prosecuting attorneys. ¤ The judge should uphold the independence and integrity of the judiciary, shall perform the duties of the office impartially, and shall avoid irnpropriety and the appearance of impropriety in all of the judges acrivwties. ¤ A judge shrill avoid impropriety and the appearance of impropriety. n A jadge should not make public comment on the merits of a ruatter pending or impending in any court. ¤ A judge should require similar restraint by eonrt personnel subject to the judges direction and control. ¤ Every state has some commission or- panel to serve as more or a tt atchdog on its judges. n What constitutes judicial misconduct is an oljten litigated question ¤ The lest for rntpropriety is tvhether thc conduct eomprcrnises the ability of the judge to carry out jtttlieiul rtzsptmsibilities with independence, integrity, impartiality. and competence. ¤ The attor·ney»client privilege basically means that intorrnation ltirnished to an attorney in confidence by his or- her client may not be dist‘|<>sct.\ without the permission of the client. n The attorney-client privilege normally shields only confidential cemmuniczatitxns from client lo attorney. 163

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’“ ‘??V'‘ * ‘‘’‘' I ''‘.. ’ “ ‘.’’ V V V `’'` ``'VV” V· · ’vvvry· ’;V`’‘”‘ M i=l r,v= V , ¥’'= V 3 j ’V,’ ? V ‘ ° · V r 1 ·’··Z r·2=·;;;3 .;:v r », .;yE Q"-? '’,’ i .:¢; ·,’* ‘ " r.v,' r 4 , ‘, ···r 1 itseerrrrra . .r - i , e;;,;;;;;;;;;;;;;;¤z;;;g· . i _ · r- r Hiiibf ·ii?;¤:¥%?%5e¤;;;;;;; e ==*‘°é¢*i¢’ =’:= . ·s . ' "rii."l"~Lir " 1J‘ ‘· = ?~ · ··‘ j _;;r4; r ;w;;,r r~» .e»»:. ,~. ” · ,·-· .· · · ll??€EE5E¥?§“?i€E"€?$??&?7iiEZiE'°P?’i?ifTEEQEY£E?é‘?:E?$°%::'i’?i?£EEE;i!§ii:E:::<E?*E***¤"¥$2I$EEEEEE’BE‘.2Z5€EE%’ll2FE’?"§2i$EE§”“**‘éZ€':%£@5E’EE€'!EE?:$?i$i??E§€`:$;::.·:i£!’d¤ a- . r··=¤?s25Z ·= · »»>,~>;¤;:¤=»¢~»;;;;,_~ »_ ii?*72IEZ?if*?€??€“Yiili??¥?fl?€??¥¥$??¥?l€f??¥$¥H ·A ' $#1; :,6 ri » » i >¥**%¥i L · r>rrrrterprirrs·§a>ii<:trrrr$nee;rsiirrrinltoreoliyFrequent ming. T " _ F V ' *’ I The ultimate goal of drug addiction treatment is toenable the individual tojachieve lasting abstinence, _ V witlithc irumecliate goals to reduce drug abuse, improve the individuals ability to function, and" , r r ; -'~` Q , ' minimize the medical and social complications ofdrug abuse and addiction. i V L ’ , ¤ Omg rrearrnent court must take into accounr that defendants in the early srages of recovery may resist treattnent and most probably do not remember how ro perform mundane rasks such as grocery shopping. ¤ Critics of drug court programs frequently eonrend that the drug court entry process is a type of forced plea bargain, which involves intimidation and threat of virulent coercion. ¤ The treatment programs generally involve cornmunirv supervision designed ro help the partieipanrs eoinbal their addiction, prevent relapse as well as to obey the law and comply with program conditions, , ¤ ln mosr states rhere is a treatment court hearing before an individual is assigned to the program, ln , addition, there are frequent conferences vtirh the treatment court coordinators to rnoniror the individuals participation and progress and to alter case nizmagcment plans as needed, n Drug treatmenr programs frequently provide ancillary services in an attempt ro provide effective rehahilirarion for the participants. l ¤ Drug court treatment programs generally conduct frequent and random substance abuse resrs of participants. ¤ The testing is designed ro derer future usage. ro idcnrify parrieipanis who arc both maintaining abstinence or who have relapsed, and to guide rrcatrncnt and sanction decisions. 181

Ch

21

224 Index 0601111111 wo1l1 cmup (eonunuw D E 11111, 117 11,1111111 11 171111111 .:111111. 110-119 011111-uoy 1. K111;1 177 Km =*· “"’“'¢¤¢ **7 1>11111o111 1o111p11 1-:11111111 1111111111 of 111111111 N1111111 D1111111 111o111y1 111o11111o1·1 ..bn8h,_Hm mm,. 4 Mmmm, v_ mm ua N“‘*""‘*_°“’“°‘ f°' C°“""“““V 191011111 1111111111 111111 co1111·1 ¤1111lo1 . 125 *’*°°°°““°‘*· *’·° 1o111111111 1111611. 121 01ro111111111o1;11111111111111111, 34 *"°P'* ”- mk **9 11111-1111111111o1, 115 1:111111 161111161 1111 1111111. 5 1111111 oi 118 1111111111 or 111111. 124 01111111 1111111, 11111; 111111, P“'*€*P*°s_°£ *20 1>1o1-1111 11111 of11-111111111 1111111111 192-191 r¤i¤r1¤¤§h11?w11h1 117 11,11 31 m(l1), 124 Evide1·wc,p·r=s¤1¤¤¤¤ 1=¤P¤¤¤·b·*·¤J 9*1 **7 1111111111 or, 110 111111 111111111, sa ¤'¤¤¤‘=*d5 '°*» **8 11111111 1/:111111111 1. Hella 116 11111111.1 1111111111 by 11111111 1111111 charsxcnerlsticn 1111 11111111 DW V, Hmm", wg Mmm 58 ”**‘“*' me °“'°°m°*· **9 1711111111 11 G11111111, 161 111111111 111.11111. S8 1111111. 115 _ I p11; 110 1>w1 111111.1 1111111111 5**** *PP°**'** *¤**¤8¤‘* d*f°¤***¤' 1111111111 1111111,11 crowexamlnauon. 56 111111.11, 112 U 11111111 or, 192 law 11 1111111, 57 R"*’B"J’ "- ‘·`°“"’J’· *22 oo1111111111y 111p11v111o1, 109 leading qu1s11¤11s, $5-57 11111 111111;1111111 11 1111111 11111111y 111111111, 190 Expert 1111111111 '“*°’ *°¤ **6 11111111n1111o1 11111111, 109 1111111111 111111111111o11, 126 111111111 :11111 1111111111m.·1 121 111111 111111-1111111 111111111, 109 p1o111111111 111111, 127 1111111111 hzlfway houses, 190 11111111111111111 1o. \25—lZ6 11o11.1111111111o1. 121 1111111111 detoxification 111111111. 189 1z1111w11·111111y 1111-111, us "°‘» *2** 111111111 o111p111111. 190 Allaway 1. M1c11111111 116 M“““*"”°"“ " M°’*"‘•'·D*’# 11111 11111 111111111111 1111, 190 6111111111 1:11 125 1111111111y 1111111110 111111111-11 11111, 131 ¤=**¤f¥ bv- *2* _ 1111111111 111111111, 190 11111-11 16, 155 C°°"-* *= ·¤$¤"¤*°¤" °* *°<¤* °'•*¤6° 111111.1111o1.111111111 111111111, 190 1111111111 wo11111 11111 11. 155 ”’°“’” ”~ ”°“'·' °/““°¤"°”· *°‘ 1111111111 111111o111111o1 111111111, 109 1111111111 of com oflast 111611 (001.111 1111-11111111 11111111111111y, 190 1111111, 145 ¢==¤*¤ P”"“·*‘Y W =v1><·¤ ¤¤¤ ¤·¤·¤ *1*0*- 111111111. 111.111 1:11111 1. 1111111. 111 °9‘“‘· ***7 4 _ _ 1111111 1111111, 192-191 111111111 by. IM ‘**’°"**°”“'Y1“’*’“*‘°“°**1 *07 Florida 11111 or11l111111l p1oo1111111 5 170. 192 011;1M1a¤1¤u 1: my 11/ c111111 11 111111111 1¤111111111¤1 CHM 191 e11111g11 11s °°“¤‘Y md '¤“¤*°*P”* °°“"-’· *0** go111. 105 1111111161 of c111111 $11111. 157 i“*'*‘° °f P€“f° _ ` ` g111111111o11, 191 Daniels v. L*r1t¤edSmr¤. 118-149 “°‘·"‘ °f **'"*'°** i“*'“***°"°¤- *0* 111111111111 1111 196 A111e1l 1:11111 c111111111A11 or 1984 J“"*°° °' *’“°° ·‘*‘*· *02 u1cl>, 19; (AGCA), 115-149 ¤¤¤*¢1w¤r 1¤d0¤#— 102-104 _ 1.1111111 11111 11111111. 194 111111111o1. 1;: my 1; w11111 11111111 11 w1>1111;11 M,_DD_ 1,; 11111111 1111/1111111w. 1a9 10a ,,,1111,,,n,, 1,,_ 19; 1111111 1o1p111 or. 100 D"'J'” H¤'”P'°”1 *05 1111111111 1111o¤11111 1111, 101 adopted 11. 157 ¤<=¤=¤¤¤_¤F=1>1>==*¤· 102 1111,1111;.111 ,1111111 11po11 1111 11111111 111111. IM K°¤'“°kY 'W°"*°* ‘*'*“* °°“*" 1·11o111111111111o1-1, lu folklom of, 157 $V**°m1 *°* p1o111111111 11111111 11111111 111111 11 1111111111;, Nmb **1 R¤-¤·’L *0**05 1o1111o1 111 1111 111111 11111. 106 11111. us 1111>o11111111 111011111 o1111111, 101 muy pmm 188 wud by_ Us ¤¤¤¤'9 1>1¤f¢¤=¤¤¤¤* ¤¤¤ff· *29 111111 P1111111111111 1111111111111111 1111111111 111111111. 150 n1-1111 11111111 11111111. 9—10 ,11111;.111. 106 1111111611 1o, 150 1111111 11111111 11,100 Rm 1.11111111 150 1111111111 law. 2 ,1,, 1,1.,;,..,1.,8 ,1,11, 1116 s1o111 1. raweu 138 11111111, 2 111111 111 111111 p1o11111o1 1111 111111, 109 1111 oi. 157. 111 B“*‘*°**°°’ 1111111111 11~111p111111, 107-100 111111111111/p1ol11l>l1lo11, 125-151 °°¤¤“'“¤°"*· Z 1111111111 1111111 11101;, 191 1ll0w ro1, 119 111111 11111. s 1111111111o1, 191 11111 or. 155 1“**‘°**‘* °P*“*°"¤· 5 1:111; 11111111111111 1111 11ef11-11111-11*1 11111111 Minnesma banned w¤111¤1's legal _ §*¤“**°¤· **5 _ law 11 1111111, 76 advocacy proim ¤¤·¤·¤=* 1-7 ¤=*·¤*¤·~¤·¤¤¤ Due 1111111 1111111. 1.111 111111111. 111 c1is11·lc1/01.u1e's nrrcrnrys plmm,. 11 1.).111111111 use cf. 135 .1111111 or, 9 1111 111111111. 45 0y1w1111111 1111111r11111o11, 126 we ¤n9r¤=7 s=¤¤r¤¤. 8-9 11,111. 111,111. 1111111-1 111|o111y op111o1. 1111011. 126 °¤““'¤* "*"*· 9* 111111111, 1;-16 711111 11 11111, 126

index 225 F Federal Rules of Evidence. 76 tnter-national courts and tribunals, 150 Fm S - Am of mm Fifth Amendment to United States Abagninm v, AMVAC Chem. Carp., 152 mum in acgan 73 Constitution. 77 coun of justlce of European communities, Federal ulu Financing coun systems, 210-212 158 Amd: m 0{U S C . mn 74 Maron vS1ltxn 211 compcsed nf, 1511 mle 72 ' ` Flond.1 rule nl criminal procedure 3 170, Pr0¤»¢d¤r¤ Stage!. 159 . ' . . drug coun, 192 Purpose to, 155 In S5; ngnzzglgongl manga 204 Fcruneenth Amendment and State judicial ICC, 150, 152-155 I 'U Smcbw 205 Proceedings IC], 150, 157-158 ‘Z . . _ . ' eoune in action international crimes B '”,;;s;;@"C0° I;0°';”'d due process nna, 41 cnrnes against nutnnnrty, 151 meter judgeqjudicial atntoe ·”'“”" " M”‘€“"'· H $;‘.{°;;_f?fé:’l‘5l role of, 74 . ' . acquittal sttunnnnntre gm Wm A ··¤·;:=_jjh;y_L=;;·**y;jm°¤¤=¤· *57 alibi and griozfarth, 78 Gwrgw U- Bmuwmt M smbddc and 157 ;"a§“;° ~ cr-rss see cuvetnntit runway surety mj, of j,,,,_ ley czghig msumems 77 association (GHSA) 6 Rome statute of intematinnal cnrturtal 7 ’ Gilbert rz Stat: q/Oklahoma, 1 7 C°,m_;_ jg; counselzopening statements, 75 Gam': U supmor coun dum. Cmmav NIE of bw connptl B0 ;;°;‘;';mmmmm 77 habeas ¢¤rp1:, wrrgsff. 143 tsntted Nauorfs teeotuttmt 1695. 156 . ‘ G¤v=rn¤r`= Hts wav ery Aa¤¤¤a•1¤¤ us. federal couns to enforce d"°" °"°""““““"* 76 tot-rss), 195 inter-nannttnt raw, rss $$2* 75 Graduation, drug court. 191 Arun; tr Amb mma, i59 7a§°w,mcws ’77 Grand Jury u1¢1¤¤u11¢ru convention on, 160 ‘ . law rn anim 5¤—51 court decision 159-160 Fifth Amendment to Lntted States ’ . . tam, 159 77 Pl; www wm Immigration nnn Nationality net, rm ' f, 160 hearsay. 76 nnutetronnt-n and eftecttve Death Penalty 5,::,; 16,7 hunt rurv- 78 Art of 1996 tacoma, 145 ,n,mmn;, mm 77 B M2 Crimes against humanity, 151 l V 7 ‘ * genocide, 151 ;i::‘:,Sz2::Fn?n ·*mmaw,. , nl »~»=»·m·» xbm, mmm; 77 °"°'"1"’ '“‘1°“‘Y °F‘“ °“· rntet-national Mrrrtaty Tt1bun.al(IMT), 151 mm, 78 ‘ ‘“" E hw B9 International ennunni coun rrccy, isc '·,14 surr1m¤ned,71 Anntenonsm and t·:ti‘eettve Death :;;:7, can ,55457 "”‘"“'“°“" 78 *"“"’Y A°‘» **1 eetnurterteer rsz wu due 75 decision by u,s. arnnct coun judge wrh af h¤¤=¤¤ ¤¤rt=u¤» 71 Raymond j, vetune, r;a.t4o ‘ °°°.°d f°? 'S4 . tenant judges rnatenmttoutn ,,,,7, , ,,,0 ¤¤*···¤·'¢¤m==- D3 courts in action S IEE Y M 159 U1‘\i\¢d Nili¤ats` secunty council, *rr¤·~"··=~¤*6 ¤;'»¥¤;¥i¤¤m9 ,,..,,,I§,T1°t ..,n“'“.‘§7"°,..t,".§'3.`;t1ti“»$"tet chief judge selectlpn, 87 twthevmoon rz Illinois. 141 ` complaint process against judge, B8 Hughes; sms mum, 27 J courts of appeals, 87 ctlminal case, B7 I Jones v Siam 126 district courts, 87 IACP. See Lnternauunal association of chiefs Judges. 115 federal magistrate judges, 87 of police (IACPJ docket schedule, 28 judge assignment methods, sa icc. sea tntetnanunai ettnunat coun ucc) federal bureau of init-srizaaon. 116 judgeshrps creation, B7 tcj. see international court of justice ttcjr good listeners, so jurors. B8 lllinaiv rx Allen, 177 knowledgeable about law, 30 jury Act, 86-89 Immigration and Nationality Act. 160 Personal llfe, 50 jury duty notice. B8 impeachment prucss, court’s role tn, 15 Public officials and, 52 qualifications for, B7 1MT. $ee1.t·rternaum·ra.l military trlbunal (IMT) trial calendar, 28 senior judge. B7 lntemauomi assocrauon of chiefs of police witness, 115-116 Federal judiciary, esublrshment (LACP), 195 Judges Elll of1925, 67 boundanes of dtstnct courts, 66 Inter-national coun of justice (ICJ). 150. drafting cf, 68 district coun judges. 66 157-158 jurlsdlctlpn, 68 judiciary Act of 1789, 66 uses, 158 venue, 68-69 nj.-uquye ¤|_ 69 mmpmcd ng 157 judge's denial of appointed counsel, 214 Federal Magistrates Act, 619 functions oi 157 Gideon v Wainwrrght, 214

226 Index judicial campaigns, 53 legal Newton 11. Rumery 187 judicial concepts citation, 18 Nanis 1} Scholten, 154 Bill of Rights in U.S. Constitution, 3 digests. 19 Nmrb 121 RussclL 102-105 due process clause, 5 encyclopedias. 19 North Western Reporter, 18 pmt in cnmtnst pmcccdtng. 5-4 research, 17 state constitutions, rights to citlaens, 5 LexisNexis eledtonlc legal research 0 1u¤11¢u1 cermnns, 11 umm, zo “0=1i1·h=11>¢1i." 5 1u¤1c1u1 cum lm Angeles County Municrpal cnun Rule Official 1¤1>¤1¤¤1. 19-19 me at mnaucr for United ssz 6. s ¤hi¤ ¤¤¤i¤ gum, judge, jurisdictron of, 28 adludlcative responsibilities, 158 M stzrucrure, Z9 constitution or state or New yum, 168 M-*i¤i>1 fre M¤thr1= =1;¤·¤¤ 111111111 <11·ivi¤a ¤1·isi¤zi J¤1isdi¤i¤11 by 11 S 5¤p1<11i¤ ¤¤¤¤ Judgdat mgsconducr (MADD) courts in action, 81-82 black collar crime, 171 M*El‘U'*[* |“dB°$» 70 0*1-* M·7¢*-7'WM V~ CW Q/`Cb¥¢¤B0 conflict of 1n1¤r¢r1, 172 M¤1¤r 11111 ¤¤¤ri= =111¤1¤¤1t- 141 llnltvd States U. Kaacvnshy 172 state malor criminal trial courts conclusivrl. 148 Constitution of smc cr Mrsstsslppr, 171 busy for, 105 counsel, 145 state law against judrcral corruptlorr, €lN\·\l\ wl-ir!. 105 sizrernent, 145-146 170 court of common pleas, 105 Otter Taillbwer C0 v Vtm Bank 8 unc nr r1¤r1nu. action rpms: yuager, =¤1=¤1¤¤1 ¤¤¤1t 105 ¤¤¤1>¤¤¤111 =1¤¤¤¤ifi¤1=i¤¤ s<~i¤¤¤. 199 16*9-170 supreme court, 105 P United States 11. Abernathy 169 Mandamus writ _ judlcxal selection, a1-az ¤ii¤w f¤11 155 ""“°‘i’“"·‘ ‘“ dm! “’“" i’“‘i5"*"‘· M Juurcnry Act or 17119, 24, ss ¤v1¤=¤ ¤f» 155 '“>""' ” Y'?"5 *2 _ _ J,,,1,drc,,°,,_ Z1 Mandatory precedent. s P=¤·1¤11·¤1i1= 1 iiizh ¤¤¤¤111¤¤¤¤¤. 214 of sure courts, subject matter junsdlctron, M¤¢¤¤¢bi*—°*¤'¤ if M¢!¢M'¤-Di¢=r 125 P"°1""’ "· A"d*""°"· 195 99_99 Mcnrtand 11. stan; 123 Pevpie v. Brwbx 9 colonial courts, 97 Mental status of defendant People vt Doble H9 cuun or general gurnrtnmcn. as ¤¤¤¤ii¤¤i¤¤» 65 RW" " “"’”" " exception of, 97 Court conclusion. 63 Pwple v Fa-Wen 17 · federal and num constitutions, as ii·1W¤1=i¤· A» PW" "· "““"5 "’ ruuunu rnmlnn nw., 95 =rv=i1¤== ¤¤¤1t 62-65 "°°P'*’ " J°"”-‘°'5 *76 justice ur peace gr), gms 11111 competency imnng in 62 '=··P'* ·* f*¢1”·€”°*’=‘·”¤ CWM Km, V Unmd $,,1,,;, 96 Fifth and Fourteenth Arnendments C°“"·’ ln ““°'n· 60'61 m,E1,,,,,,,, 97 of u s ccrunnuunn, ss Pwcvjl- U¤11¢·1Sw¢s 19911 69 mm mum history, as i¤¤i1¤¤=· 63 I"' ‘€‘ ‘““°“· 7° types of insanity and cornpererrcy_ 55 Persuas1v¤>pre¤ed»=¤¤. H over person, 111 U s Supreme Court Flu 1>¤11r¤1111¤s. 59 nm www runner, 111 in cooper r onzammm, se b¤11¤fi1¤ ¤f· 60 Jmm Mgdngshuudgcs Ach 66 Political pressure, 205-206 mum in umm. 47 Mom! ,, guy,/A[b“,,M g Unlrsd States v. Bayltss 205-206 Jury Mom"; against drunk dygvgng (MADD), lgg Precedent (guide) for situations Clerk of Coun, 127 Mmmn to change venue, 41 P mandatory and persuasive, B 3;;;*;*,1gg . . pmwdm mg ctrnnntrru rtnnaa, zos me svzmy 1z7_]zB N Probation revocation use Tlumms wr U3 National Center for State Courts (NCSC). 100 magistrate ]udge`s report and . n Process HB initiatives. 101 recommendation Smwu Adam`; lh pace oflilipuon ln urligg trial courts, 101 ;or1c?.;¤ns, 184 . Vrrgtnia court system, act, ]`"°“'l° °'““ °°“""‘ M Nnnmut cnmuuu Vlctimlzation Survey recommendation. 1ss K (NCVSJ. 94 Untrcd slam u Chundlqv, 184 Klmmcky Node, um (mm sysmmv 102 National District Attorneys Associations Procedures. drug court King u. mnurg 175 National Center Fur Community cccrcton in drug court piers, 186 gum ,, [;,,;,,d_g·m_95’ g6 Prosecution, 120 Boykin U Alabama, 187 Kyk V Wbmex uy Nauonal Reporter System, 15 Newton 11. Rumery, 187 NCSC. See National center for state courts entry process, 188 I. (NCSC) offense dlsqualiflers, 188 ladyjustjce, 7 NCVS. SeeNational criminal vlcrlmizatlnn forced parttcrpatlon ln drug treaunent language barriers to justice, 206-207 survey (NCVS) program report by (hhfomia commission, .VebmsI•a Prv¤As: 'v1 v. Shun Robinson 12 Calyiimta, 186 20&207 law of action, S9 models in law reviews, 19 New Mexico court, B defendant waives, 188