Criminal Justice Study Guide 155a35

Criminal Justice study guide      

People’s beliefs about what ought to be illegal or not often are tied up with whether they think things are fair Now, we look at criminal justice system from inside – the process How are decisions made about who is actually punished? A lot of politics in criminal procedure Whose perspective might we find interesting? Property owner vs. homeless person? Useful to think about the process from any vantage point as helping us to understand that any actor that moves through the criminal justice system only understands a portion of what’s going on Defendant – what does the criminal justice system look like from defendant’s point of view?

The Trial by Kafka o From perspective of accused, POV of fictitious person o Criminal justice devoid of criminal procedure o Themes: opaque situation, others carry on 

Two ways of thinking about criminal justice: o Adversary system – Anglo-American criminal justice system  Individually focused  Defendant has rights, state wants to take them away, defendant and state are adversaries in a proceeding  US not ideal adversary model, not reality  In English common law, treasonous thoughts were thought to be property of the King  Not rooted in hierarchies, but combat  Key notion: nobody’s job to find out the truth; the truth is a byproduct of the competition between the defendant and the state  Free-market  Presumption of innocence – state bears a burden of proof  Absent that burden being met, no one can be punished  Rights!  Independent checks on the authority of the CJ system  Most important: jury that is not beholden to the criminal justice system, they find the person not guilty (the state didn’t prove relative to its burden that the person did it), but not “innocent”  Defendant is protected against self-incrimination  Police need a warrant, you can refuse to testify, refuse to talk to police, restrictions on evidence (illegal evidence inissible)  Nevertheless, state remains incredibly powerful o Inquisitional system – French, continental European  State-focused

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 Think of community rights first  Opaque authority  Shrouded in secrecy and uncertainty  Court is supposed to get at the truth, arrive at an answer The Trial – Kafka o Supposition of guilt increases throughout o Mr. K even thinks himself guilty by end o Apparent acquittal or postponement/protraction  Acquittal in our sense not available  Apparent acquittal – we will let the matter rest, but charges can be brought up at any moment; no statue of limitations  Postponement/protraction – delay being found guilty, run the clock o Opaque authority – every person Mr. K encounters is connected to each other, system dependant on patronage  Might remind us of Hay – having been found guilty, you can appeal to other channels  Even audience is part of hierarchy as well o Key to our system is the transparency – you know pretty much every step of the process  Generally, the system is ultimately responsible to the people, even in indirect ways  Jury has final decision, no linkages o Self-incrimination is inevitable  No matter what Mr. K does, he continues to make bad choices which continually hurt him o Shrouded in secrecy and uncertainty  Mr. K doesn’t know what the charges are, who’s investigating him, what counts as evidence, who the witnesses are, timeline o What does The Trial (written 1921) describe?  Rise of totalitarianism? Predates fascism, totalitarianism, Communism  Not describing a system that he experienced?  What would be alternative? Justice system of any real democratic country is somewhere in between adversarial and inquisitional model o Kafka is an extreme example, but how willing are we to embrace ideal adversarial model?