Course Court Systems and Practices. Unit X Pre-trial

Transcription

1 Course Court Systems and Practices Unit X Pre-trial Essential Question What happens to a case between the time a person is arrested and the time they have their trial? TEKS (c) (1)(G) (4)(B)(E) Prior Student Learning The purpose of probable cause in the criminal justice system Estimated Time 4 to 5 hours The Pre-trial Process, The Grand Jury and The Bail Process Rationale There are lots of decisions made that affect a defendant from the time they are arrested to the time they go to trial. The defendant s lawyer will need to be aware of these decisions so they can best defend their client. Objectives The student will be able to: 1. List the order of official proceedings a case goes through before it gets to trial 2. Identify what decision is made in each proceeding 3. Recognize the different types of bonds 4. Play the role of a judge who has to decide and defend the bail amount on a specific case 5. Critique other students decisions on the bail amounts set for a defendant Engage Have the students imagine that they are a defense attorney fresh out of law school that has just been hired by an offender who is currently in jail for a crime they recently committed. Use the following questions for discussion. Use the Discussion Rubric for assessment. What are you going to tell them about the things that will go on in the legal system in regards to their case from this point until their trial? How are they going to get out of jail until their trial, and who decides this based on what? Are there any secret meetings that will be held that they are not allowed to be a part of that could determine if their case actually goes to trial? Key Points I. Entry into the Court System A. A person enters the court system when they are arrested. An arrest occurs when adequate evidence exists. B. Once the person is arrested he or she is taken to jail and booked. Booking consists of obtaining biographical information about the defendant (name, address, DOB, etc.), fingerprinting the defendant, and taking the defendant s photograph (the mug shot). C. A police officer (or sometimes the prosecutor) files a complaint which is the charge. 1. The complaint is a written statement of the essential facts constituting an offense charged. It is made upon oath before a magistrate. 2. This is also known as an affidavit. 3. Hearsay can be allowed in a complaint. 1

2 4. If a person is not in custody when an officer has his complaint signed by the judge, it then becomes a warrant for that person s arrest. II. Visiting with the Judge A. The first appearance before the judge is called the initial appearance. During this visit the judge 1. Confirms the identity of the defendant 2. Informs the defendant of various rights such as remaining silent and having an attorney 3. Gives a date to show up to court for the preliminary hearing 4. Advises the defendant of how much the bail is B. This happens within 24 to 48 hours of being arrested. III. Bail A. Bail is the money or property given as security for a defendant s appearance in court. It may be lost if the defendant does not appear at their court date. B. Types of Bonds 1. Surety Bond when a third party agrees to pay the bond a. The defendant pays a professional bondsman 10 percent or more of the bond amount in exchange for the bondsman s posting the defendant s bail b. The defendant does not get the 10 percent back 2. Property Bond when the defendant pledges a car, house, or other property to retain release 3. Cash Bond the defendant puts up his or her own cash to make bail 4. Personal Recognizance when a defendant needs only to promise to appear in court C. The 8th Amendment does not allow bail to be excessive. The Supreme Court has ruled that a defendant s inability to pay the amount the court has set does not make it excessive. D. The bail amount can depend on 1. The nature of the crime 2. The defendant s criminal history 3. Flight risk 4. How much wealth the defendant has E. Bail can be denied depending on some of the following: 1. The type and nature of the crime 2. Flight risk 3. Protection of the victim or the defendant IV. Preliminary Hearing A. The defendant s second appearance before a judge where the court determines if probable cause exists to believe the accused 2

3 committed the crime B. The purpose of the hearing is to have an impartial third party review the facts to be sure that probable cause exists C. The preliminary hearing is many times bypassed and the case is sent to the grand jury D. The hearing is adversarial and can serve as a source of discovery for both the prosecutor and defense E. Other motions to throw out illegally seized evidence, etc. are made after the preliminary hearing V. Grand Jury A. A group of people who routinely meet to determine whether there is probable cause to believe that defendants committed the crimes they are charged with B. Grand Juries are 1. Closed 2. Presented evidence by the prosecutor only 3. Secret 4. Conducted without the defendant present 5. Able to subpoena witnesses to testify and give immunity from prosecution C. If the grand jury finds that probable cause does exist, the defendant is issued a true bill of indictment, or, is indicted D. If the grand jury finds that probable cause does not exist, the defendant is not billed and the case is dropped VI. Arraignment A. After formal charges have been filed, the defendant is brought to court for an arraignment B. The hearing at which the defendant is brought before a judge to hear charges and to enter a plea 1. The defendant will enter any of the following pleas: a. Not guilty b. Guilty c. Nolo contendere or no contest means, I do not contest it. The defendant neither admits nor denies the charges and has no intention of defending themselves. 2. A guilty plea a. Must be voluntarily b. The defendant must be aware of its implications 3. No plea is the same as a not guilty plea C. A plea bargain can be announced a negotiation between the prosecutor and the defendant s lawyer in which the defendant pleads guilty for a lesser punishment so the case does not go to court. This has to be approved by the court. 3

4 Activities 1. Completion of the Pre-trial Process (open-note) Quiz 2. Have the students write a one-half to one-page paper on the role of the grand jury. They will describe the importance of the grand jury in the criminal justice system and why, in their opinion, it is important for it to exist. If there is additional time, have the students research how often the grand jury meets in their county and/or have someone who has served on a grand jury come and speak to the class. Use the Writing Rubric for assessment. 3. Have the students complete the Bond Activity. Use the Bond Activity Handout and the Role Play Rubric. Assessments Pre-trial Process Exam and Key Pre-trial Process Quiz and Key Discussion Rubric Research Rubric Role Play Rubric Writing Rubric Materials Pre-trial Process computer-based presentation Bond Activity Handout Resources , Criminal Law and Procedure (5 th Edition) by Daniel E. Hall, J.D., Ed.D , Introduction to Criminal Evidence and Court Procedure (3 rd Edition) by Julian R. Hanley, Wayne W. Schmidt, and Larry D. Nichols Accommodations for Learning Differences For reinforcement, the student will research a high profile case in his or her local area and track it as it goes through the pretrial process. This may be done by going to the newspaper or television station websites and back tracking through the links, if they pick a case that is currently at trial and is being talked about heavily in the local media. The student can document decisions made at each pre-trial stage. Use the Research Rubric for assessment. For enrichment, the student will research famous cases, see how much the bail amounts were for the defendants, and describe why he or she thinks the judge made the decision on the bail amount. Use the Research Rubric for assessment. 4

5 State Education Standards Texas Essential Knowledge and Skills for Career and Technical Education Court Systems and Practices (One to Two Credits). (1) The student examines the structure of the legal system in the United States. The student is expected to: (G) describe the impact of the grand jury process on court proceedings; (4) The student examines the steps by which a criminal charge is processed through pretrial, trial, adjudication, and the appellate stages. The student is expected to: (B) (E) explain pretrial court proceedings such as rules of discovery, challenges to evidence, and the bail process; identify the trial process from pretrial to sentencing; College and Career Readiness Standards Cross-Disciplinary Standards I. Key Cognitive Skills A. Intellectual curiosity 1. Engage in scholarly inquiry and dialogue. 2. Accept constructive criticism and revise personal views when valid evidence warrants. B. Reasoning 1. Consider arguments and conclusions of self and others. 2. Construct well-reasoned arguments to explain positions or lines of reasoning. 4. Support or modify claims based on the results of an inquiry. 5

6 Bond Activity Handout Each student is either given or told one thing from each category. Students will rotate being the defendant, the judge, and the part of the class who grades the judge s decision. The student who plays the role of the defendant will have to go before the student playing the role of the judge. The judge will need to determine the defendant s crime, salary, criminal history, and if they are a flight risk. The judge can ask the defendant these questions; the defendant already knows these answers based on the information given to him or her by the teacher. The judge will then determine the bond. The class then becomes a combination of victims, family members of the defendant and victim, law enforcement officers, and others who each have an interest in the bond being set higher or lower. After this, the class uses the Debate Rubric to grade how well the judge defended his or her decision. The bond amount the judge decides on is entirely up to the student, including denying the defendant bail. 1. Defendant s Salary and If They Are a Flight Risk Unemployed yes Unemployed no $10,000 yes $20,000 yes $20,000 no $30,000 yes $30,000 no $40,000 yes $40,000 no $50,000 yes $50,000 no $60,000 yes $60,000 no $60,000 maybe $70,000 no $80,000 maybe $90,000 yes $100,000 no $100,000 yes $120,000 maybe $150,000 no $200,000 yes $250,000 maybe $500,000 no $750,000 maybe $1,000,000 yes $2,000,000 no $5,000,000 maybe $10,000,000 yes $1,000,000,000 maybe 6

7 2. Defendant s Crime Class C Misdemeanor Theft Class C Misdemeanor Disorderly Conduct (for fighting in public) Class C Misdemeanor Gambling Class B Misdemeanor DWI Class B Misdemeanor Prostitution Class B Misdemeanor Harassment Class A Misdemeanor Criminal Trespass Class A Misdemeanor Assault Class A Misdemeanor Burglary of a Vehicle Class A Misdemeanor Unlawful Restraint Class A Misdemeanor Terroristic Threat Class A Misdemeanor Evading Arrest or Detention Class A Misdemeanor Unlawful Carrying Weapons State Jail Felony Unauthorized Use of A Motor Vehicle State Jail Felony Forgery State Jail Felony Credit Card Abuse State Jail Felony Fraudulent Use or Possession of Identifying Information (Identity Theft) State Jail Felony Tampering With Witness State Jail Felony Dog Fighting Third Degree Felony Kidnapping Second Degree Felony Manslaughter Second Degree Felony Burglary Second Degree Felony Robbery Second Degree Felony Sexual Assault Second Degree Felony Aggravated Assault First Degree Felony Aggravated Kidnapping First Degree Felony Sexual Assault First Degree Felony Aggravated Robbery First Degree Felony Murder Capital Murder 3. Defendant s Criminal History None None None None Arrested once for a minor crime a long time ago Arrested once for a minor crime a long time ago Arrested once for a minor crime a long time ago Arrested once for a minor crime a long time ago Arrested once for a minor crime not very long ago Arrested once for a minor crime not very long ago 7

8 Arrested once for a minor crime not very long ago Arrested once for a minor crime not very long ago Arrested once for a major crime a long time ago Arrested once for a major crime a long time ago Arrested once for a major crime a long time ago Arrested once for a major crime a long time ago Arrested once for a major crime not very long ago Arrested once for a major crime not very long ago Arrested once for a major crime not very long ago Arrested once for a major crime not very long ago Arrested more than once for minor crimes Arrested more than once for minor crimes Arrested more than once for minor crimes Arrested more than once for major and minor crimes Arrested more than once for major and minor crimes Arrested more than once for major and minor crimes Extensive Extensive Extensive Extensive 8

9 Name Date Matching (Part 1): a) Complaint b) A warrant c) The court system d) Hearsay e) Booking Pre-trial Process Exam 1. You are arrested for a crime. What are you now entering? 2. When you are taken to the jail after being arrested, the police obtain biographical information about you, fingerprint you, and take your photograph. What are they doing to you by doing this? 3. After you are arrested, the police officer writes a statement of the essential facts constituting the offense you are charged with. The officer takes it before a magistrate and presents it under oath. The officer refers to this as an affidavit. What is the officer presenting? 4. What can the officer put in the affidavit that he presents before the judge? 5. You commit a crime but are not caught. The police figure you out and file an affidavit that is signed by the judge. Since you are not in custody, what does the affidavit become? Matching (Part 2): a) Grand Jury b) Plea bargaining c) Preliminary hearing d) Initial appearance e) Bail 6. Now, let s say you are arrested and in jail. You are waiting to see the judge for the first time. The judge will actually come to your jail cell to see you. What is this called? 7. After the judge first sees you he lets you know that you can be released until your trial as long as you put up money or property to assure your appearance in court, which can also be lost if you don t appear at your court date. The judge says it will be $5,000. What is he talking about? 8. You show up to court and appear before the judge for the second time. The court will determine if probable cause exists to believe that you committed the crime. What is this called? 9. After all of this, your case is sent to a group of people who routinely meet and will determine whether there is probable cause to believe that you committed the crime you are charged with. What are these people called? 9

10 10. You know you are guilty for the crime you are charged with and you don t believe you stand a chance in the case. You want your defense attorney to negotiate with the prosecutor for a lesser punishment if you declare you are guilty. What are you doing? Multiple Choice: 11. What type of bond consists of a defendant being released if he or she promises to appear in court? a) Surety bond b) Property bond c) Cash bond d) Personal Recognizance 12. What type of bond consists of a third party agreeing to pay for the bond? a) Surety bond b) Property bond c) Cash bond d) Personal Recognizance 13. What type of bond consists of the defendant putting up his or her own money to bail out? a) Surety bond b) Property bond c) Cash bond d) Personal Recognizance 14. What type of bond consists of the defendant pledging a car, house, or other property to retain release? a) Surety bond b) Property bond c) Cash bond d) Personal Recognizance 15. Which amendment does not allow excessive bail? a) 4th b) 5th c) 6th d) 8th e) Both b and d 10

11 16. Based on the choices below, what can the bail amount depend on? I. The nature of the crime II. The defendant s criminal history III. The defendant s race IV. Flight risk V. The defendant s gender VI. How much wealth the defendant has a) I b) II and III c) I, II, IV, V d) I, II, IV, VI e) I, III, IV, V, VI 17. Based on the choices below, bail can be denied to a defendant based on what? I. The type and nature of the crime II. Their attitude III. Flight risk IV. The criminal history of the defendant s family members V. Protection of the victim or the defendant a) I and II b) I, III c) III, IV, V d) I, III, V e) I, II, III, IV, V 18. What does the judge do during the initial appearance? a) Confirms the identity of the defendant b) Informs of various rights such as remaining silent and having an attorney c) Gives a date to show up to court for their preliminary hearing d) Advises the defendant of how much their bail is e) All of the above 19. Within how many hours of being arrested does the judge have to see the defendant? a) 24 hours b) hours c) 48 hours d) ours e) 72 hours 20. What is the purpose of the preliminary hearing? a) To have an impartial third party review the facts to be sure that probable cause exists b) To let the prosecutor see how many attorneys the defendant has hired c) To let the defense attorney learn how much experience the prosecutor has d) All of the above 11

12 21. What is many times bypassed and adversarial, and can serve as a source of discovery for both the prosecutor and defense? a) Arraignment b) Preliminary hearing c) Grand Jury d) Plea bargain 22. What is closed, secret, and does not have the defendant present? a) Arraignment b) Preliminary hearing c) Grand Jury d) Plea bargain 23. Who is present during the grand jury proceedings? a) The prosecutor only b) The defense attorney only c) Both a and b 24. When the grand jury finds that probable cause exists, the defendant is what? a) True billed b) Indicted c) Guilty d) Released on bail e) Either a or b 25. When the grand jury finds that probable cause does not exist, the defendant is what? a) True billed b) Indicted c) Not Indicted d) Released and the case is dropped e) Either c or d 26. What is the hearing during which the defendant is brought before a judge to hear charges and to enter a plea? a) Arraignment b) Preliminary hearing c) Grand Jury d) Plea bargain 27. In what pleas do defendants neither admit nor deny the charges and imply that they have no intention of defending themselves? a) Not guilty b) Guilty c) Nolo contendere 12

13 28. Back to you court case. Let s say you pled guilty the first time you saw the judge but it was not something you wanted to do. You felt that you had to plead guilty. Will this plea of guilty hold up in court? a) Yes b) No 29. Based on the answer you gave for number 28, why is that the correct answer? a) A guilty plea has to be voluntary b) A guilty plea does not have to be voluntary 30. No plea is the same as what? a) Not guilty b) Guilty c) Nolo contendere 13

14 Pre-trial Process Exam Key 1. C 2. E 3. A 4. D 5. B 6. D 7. E 8. C 9. A 10. B 11. D 12. A 13. C 14. B 15. D 16. D 17. D 18. E 19. B 20. A 21. B 22. C 23. A 24. E 25. E 26. A 27. C 28. B 29. A 30. A 14

15 Name Date Pre-trial Process Quiz 1. When does someone enter the court system? _ 2. What consists of obtaining biographical information about the defendant, fingerprinting the defendant, and taking the defendant s photograph? _ 3. What is a written statement of the essential facts constituting an charged offense that is made upon oath before a magistrate can also be known as an affidavit? 4. What can be allowed in the affidavit? 5. If someone is not in custody when the judge signs an affidavit, what does it become? 6. What is the first appearance before a judge where the judge confirms the identity of the defendant, informs of various rights such as remaining silent and having an attorney, gives a date to show up to court for their preliminary hearing, and advises the defendant of how much their bail is? 7. Within how many hours of being arrested does the judge have to see the defendant? 8. What is the money or property given as security for a defendant s appearance in court that can be lost if the defendant does not appear at the court date? 9. What type of bond consists of a third party agreeing to pay for the bond? _ 15

16 10. What type of bond consists of the defendant pledging a car, house, or other property to retain release? 11. What type of bond consists of the defendant putting up their own money to bail out? 12. What type of bond consists of a defendant being released if they promise to appear in court? 13. Which amendment does not allow excessive bail? 14. What can the bail amount depend on? a) b) c) d) 15. Bail can be denied to a defendant based on what? a) b) c) 16. What is the defendant s second appearance before a judge where the court determines if probable cause exists to believe the accused committed the crime, is many times bypassed, is adversarial, and can serve as a source of discovery for both the prosecutor and defense? 17. What is the purpose of the preliminary hearing? 18. What is a group of people who routinely meet to determine whether there is probable cause to believe that defendants committed the crimes they are charged with; they are closed and secret, and the defendant is not present? 16

17 19. Who is the only attorney present during the grand jury proceedings? 20. When the grand jury finds that probable cause exists, the defendant is what? a) or b) 21. When the grand jury finds that probable cause does not exist, the defendant is what? 22. What is the hearing at which the defendant is brought before a judge to hear charges and to enter a plea? 23. In what pleas does the defendant neither admit nor deny the charges and imply they have no intention of defending themselves? 24. What must a guilty plea be? 25. What is a no plea the same as? 26. What is a negotiation between a prosecutor and the defendant s lawyer where the defendant pleads guilty for lesser punishment so the case doesn t go to court? 17

18 Pre-trial Process Quiz Key 1. When he or she is arrested 2. Booking 3. Complaint 4. Hearsay 5. A warrant 6. Initial appearance hours 8. Bail 9. Surety bond 10. Property bond 11. Cash bond 12. Personal recognizance 13. 8th 14. a) The nature of the crime b) The defendant s criminal history c) The flight risk d) How much wealth the defendant has 15. a) The type and nature of the crime b) The flight risk c) Protection of the victim or the defendant 16. Preliminary hearing 17. To have an impartial third party review the facts to be sure that probable cause exists 18. Grand Jury 19. The prosecutor 20. a) True billed or b) Indicted 21. No billed 22. Arraignment 23. Nolo contendere 24. Voluntarily 25. Not guilty 26. Plea bargaining 18

19 Name Date Objectives 4 pts. Excellent Discussion Rubric 3 pts. Good 2 pts. Needs Some Improvement 1 pt. Needs Much Improvement N/A Pts. Participates in group discussion Encourages others to join the conversation Keeps the discussion progressing to achieve goals Shares thoughts actively while offering helpful recommendations to others Gives credit to others for their ideas Respects the opinions of others Involves others by asking questions or requesting input Expresses thoughts and ideas clearly and effectively Total Points (32 pts.) Comments: 19

20 Name Date Objectives Question/goal Student identified and communicated a question or goal of the research 4 pts. Excellent Research Rubric 3 pts. Good 2 pts. Needs Some Improvement 1 pt. Needs Much Improvement N/A Pts. Research/Gathering information (if relevant) Student used a variety of methods and sources to gather information. Student took notes while gathering information Conclusion/Summary Student drew insightful conclusions and observations from the information gathered. Information is organized in a logical manner Communication Student communicated the information gathered and summary or conclusions persuasively. Student demonstrated skill in the use of media used to communicate the results of research Reflection Student reflected on the importance of the research and its potential application Total Points (20 pts.) Comments: 20

21 Name: Date: Role Play Rubric Objectives 4 pts. Excellent 3 pts. Good 2 pts. Needs Some Improvement 1 pt. Needs Much Improvement N/A Pts. Relates to the audience Provides fluent rendition of the scenario All required content is included Acts with feeling and expression Varies intonation Presents characters appropriately Gives the scenario its full range Breaches are easily identified Total Points (32 pts.) Comments: 21

22 Name: Date: Writing Rubric Objectives The writing has all required parts from introduction to conclusion in smooth transition. The writing is interesting, supportive, and complete. The writing demonstrates that the writer comprehends the writing process. Accurate spelling, grammar, and punctuation 4 pts. Excellent 3 pts. Good 2 pts. Needs Some Improvement 1 pt. Needs Much Improvement N/A Pts. The content of paragraphs emphasizes appropriate points. The writer shows an understanding of sentence structure, paragraphing, and punctuation. All sources and references are clearly and accurately documented. Total Points (28 pts.) Comments: 22