What characteristics of criminal activity make the exercise of discretion relatively straightforward?

• CHAPTER 1 — NOTES AND COMMENTS

PLEASE READ THE ENTIRE CHAPTER IN THE TEXTBOOK BEFORE PERUSING THESE NOTES AND COMMENTS

CRIMINAL LAW
What is Criminal Law?
Law enables us to strive for the noble imperative called Justice. The struggles to attain justice often serve as a medium where prejudice and injustice find voice. Criminal law is an ancient parent of the legal family as societies have sought to enforce minimum codes of conduct.
The study of criminal law is the study of crime and the moral principles of criminal responsibility. Substantive criminal law draws upon three different sources of law:
1. The constitution of both the United States and indivdual states.
2. The decisions of judges and courts.
3. Federal and state statutes. All American jurisdicions have extensive statutes dealing with crimes and criminal law ( called penal codes).

Through criminal law the force of the government is brought to bear to enforce a code of conduct that constitutes society’s minimum– the least common denominator of behavior.

The Architecture of the Criminal Justice System: Process, Participation and the Role of Discretion
Chapter one explains the life cycle of a typical criminal case. It focuses on the process, terminology, and participants in the tapestry of criminal prosecution and defense in American courts. The chapter highlights the role that discretion plays throughout the cycle, including the potential for discrimination and arbitrariness that often results from the exercise of discretion.
I. The Life Cycle of a Criminal Case

A. Report & Fact Investigation Stage

* What are the advantages to the current allocation of discretion to police in determining whether to investigate possible criminal activity?

Some possibilities: Relatively efficient when it calls upon experience and training provided by police academy and field work, allows others to focus elsewhere because mechanism is in place to deal with crime and crises, many law enforcement officers do a good job, head of law enforcement agency may be appointed by locally elected leader producing some responsiveness to democratic processes.

* Disadvantages?

Some possibilities: Can reinforce discriminatory attitudes, sometimes limited opportunity for public input or cumbersome and expensive to change existing approaches, tremendous discretion in the hands of a few or made on the spot by sometimes inexperienced officer, possibility of corruption, malfeasance etc.

* What characteristics of criminal activity make the exercise of discretion relatively straightforward?

Clear roles, victim and crime fit expected pattern, typical reactive role for law enforcement. Sufficient evidence to bring to the prosecution. Limited resources needed for the police to investigate.

* What makes the domestic violence example in the reading harder?

Victim and crime didn’t necessarily fit expected pattern, e.g., not a stranger as the perpetrator, ongoing relationship between victim and accused, victims often recant or refuse to pursue case, long standing perception among some that violence between intimates was private “family” matter.

* Which standard in the reading is better? Probable cause or the four part Uniform Crime Charging Standard?

It depends upon the goal. If you want to maximize prosecutorial discretion, arguably probable cause. If you want to decrease the likelihood of casting the prosecutorial net too wide, then the UCCS, which involves more checks on the initial decision.

*Contrast the experience of a grand jury to the prosecutorial charging. Which is better?

Grand jurors almost always indict as requested by the prosecutor. If this is true, are they a sufficient check on the prosecution? In some jurisdictions, the preliminary hearing can consist exclusively of the hearsay testimony of a police officer, e.g., California. Does that provide any better protection?

* What if the prosecutor declines to charge? What remedy does a crime victim have? What review is there of a prosecutor’s decision to charge?

Victim could complain through an internal complaint procedure, if available, or take the concern public. There is little review of a prosecutor’s decision to decline to charge. Occasionally, that decision is reviewed as part of a court case in which the plaintiff alleges selective or discriminatory charging of some and consequently noncharging of others. But often there is little remedy for a crime victim for a case in which the prosecutor has declined to charge a crime. In contrast, during the life cycle of a criminal case, there are a number of opportunities to challenge the prosecutorial charging decision, from motions to dismiss to pre-trial hearings.

* Often, in determining whether activity constitutes a crime and what crime to charge, prosecutors turn to statutes.

Let’s contrast the existing criminal codes with the Model Penal Code.

* What is the Model Penal Code?
The Model Penal Code was drafted by a committee of the American Law Institute in 1962 and consists of proposed wording for statutes dealing with substantive criminal law. It is used by states to guide their revisions of statutory provisions defining criminal offenses. An official draft of the Model Penal Code with explanatory notes was published in 1985.
The Model Penal Code represents the existing substantive law of crime which forms the bais for the existing statutory provisions (the penal code) of the majority of states. It is therefore the typical statement of the modern substantive criminal law in America.

What if the crime occurred in Michigan and the prosecutor had looked up the MPC and charged a crime pursuant to the MPC?

Unless the legislature had adopted the relevant portion of the MPC, the MPC would not be the appropriate charging source. The MPC is a model code, but not the law of any jurisdiction unless that jurisdiction has actually adopted the MPC section as law. Throughout this course we will be studying the MPC and contrasting the approaches of various jurisdictions with the MPC provisions, so please remember that the MPC is a model code rather than existing law.

* To whom should prosecutor feel obligated?

The prosecutor should always act in the interest of justice.

* What factors sometimes make a prosecutor fail to realize justice?

Personal ego (desire to “win”), tunnel vision, risk that prosecutor gets isolated from defendants as a group, lacks ability to see humanity in individual accused, misled by other law enforcement officials, carelessness, failure to exercise professional discretion, following office policy without adequate consideration of current circumstances, etc.

* What considerations might influence defense counsel in their decision to withhold or disclose information?
Credibility of and trust in opposing counsel, strategy, willingness of client to permit disclosure.

* How many of you were surprised by the reading explaining that cases are regularly disposed of in a two-minute conversation among the prosecutor, defense counsel, and judge —
even those that may involve a prison sentence, as suggested by the article on pg. 10?

* What are the consequences of having such a high percentage of cases disposed of by plea negotiation?

Many negative consequences for the defendant although the state saves money. There are concerns about bias, that the case is not tested in court, complainant and defendant do not have their day in court, risk of errors increase, fewer jurors–reduces citizen involvement in system, creates pressure for defendants to plead to charges even if they are not legally or factually guilty, etc.

* In the reading, the San Jose Mercury News analysis indicates that Black and Hispanic individuals fare much worse than White individuals in plea negotiations. How could the system address this?

A wide range of possibilities exist, including education about racism, conscious and unconscious, oversight and comparative monitoring, efforts to increase diversity in the legal and judicial professions, redaction of race information from law enforcement reports and the limitations of this approach, etc.

* Describe one way in which courts attempt to prevent racial and gender and other discrimination from infecting jury selection.
Note the limitations on peremptory challenges discussed on pg. 13.

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