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Litigation Instruction – Criminal/Civil/Family

The Process of Criminal Justice

Criminal justice is a process, involving a series of steps beginning with a criminal investigation and ending with the release of a convicted offender from correctional supervision. Rules and decision making are at the center of this process.

Rules

Sources of rules in criminal justice include the U.S. Constitution and Bill of Rights, state constitutions, the U.S. Code, state codes, court decisions, federal rules of criminal procedure, state rules of criminal procedure, and department and agency rules and regulations. The Federal Rules of Criminal Procedure, for example, govern the procedure in all criminal proceedings in courts of the United States.

Discretion

Decision making in criminal justice involves more than the learning of rules and the application of them to specific cases. Decisions are based on discretion, that is, the individual exercise of judgment to make choices about alternative courses of action. Discretion, or making decisions without formal rules, is common in criminal justice. Discretion comes into play whenever police make choices about whether to arrest, investigate, search, question, or use force. Similarly, prosecutors exercise individual judgment in deciding whether to charge a person with a crime and whether to plea‐bargain. Judges also use discretion when setting bail, accepting or rejecting plea bargains, ruling on pretrial motions, and sentencing. Parole board members exercise discretion when deciding whether and when to release inmates from prison.

Steps in the criminal justice process

The major steps in processing a criminal case are as follows:

1. Investigation of a crime by the police. The purpose of a criminal investigation is to gather evidence to identify a suspect and support an arrest. An investigation may require a search, an exploratory inspection of a person or property. Probable cause is the standard of proof required for a search. Probable cause means there are facts or apparent facts indicating that evidence of criminality can be found in a specific place.

2. Arrest of a suspect by the police. An arrest involves taking a person into custody for the purpose of holding the suspect until court. Probable cause is the legal requirement for an arrest. It means that there is a reasonable link between a specific person and a particular crime.

3. Prosecution of a criminal defendant by a district attorney. When deciding whether to charge a person with a crime, prosecutors weigh many factors, including the seriousness of the offense and the strength of the evidence.

4. Indictment by a grand jury or the filing of an information by a prosecutor. Under the Federal Rules of Criminal Procedure, an indictment is required when prosecuting a capital offense. A prosecutor has the option of an indictment or an information in cases involving crimes punishable by imprisonment. In about half the states and the federal system, a grand jury decides whether to bring charges against a person in a closed hearing in which only the prosecutor presents evidence. The defendant has no right to be present at grand jury proceedings and no right to have a defense attorney represent him or her before the grand jury. The standard for indicting a person for a crime is probable cause. In the remaining states, a prosecutor files a charging document called an information. A preliminary (probable cause) hearing is held to determine if there is enough evidence to warrant a trial. The defendant and his or her attorney can be present at this hearing to dispute the charges.

5. Arraignment by a judge. Before the trial, the defendant appears in court and enters a plea. The most common pleas are guilty and not guilty.

6. Pretrial detention and/or bail. Detention refers to a period of temporary custody prior to trial. Bail is an amount of money paid by a defendant to ensure he or she will show up for a trial.

7. Plea bargaining between the defense attorney and the prosecutor. Usually, in plea bargaining, the defendant agrees to plead guilty in exchange for a charge reduction or sentence reduction.

8. Trial/adjudication of guilt by a judge or jury, with a prosecutor and a defense attorney participating. A trial is held before a judge or jury. The standard of evidence for a criminal conviction is guilt beyond a reasonable doubt—less than 100 percent certainty but more than high probability. If there is doubt based on reason, the accused is entitled to be acquitted.

9. Sentencing by a judge. If the accused is found guilty, a judge metes out a sentence. Possible sentences include a fine, probation, a period of incarceration in a correctional institution, such as a jail or prison, or some combination of supervision in the community and incarceration.

10. Appeals filed by attorneys in appellate courts and then ruled on by appellate judges. If an appellate court reverses a case, the case returns to trial court for retrial. With a reversal, the original trial becomes moot (that is, it is as though it never happened). Following a reversal, a prosecutor decides whether to refile or drop the charges. Even if a prosecutor drops the charges, the defendant can still be prosecuted later as long as the statute of limitations for the crime the defendant is accused of committing hasn't run out. Such a statute imposes time limits on the government to try a case.

11. Punishment and/or rehabilitation administered by local, state, or federal correctional authorities. Most inmates do not serve the complete term and are released before the expiration of their maximum sentences. Release may be obtained by serving the maximum sentence mandated by a court or through an early release mechanism, such as parole or pardon.

The criminal justice process is like a funnel, wide at the top and narrow at the bottom. Early in the criminal justice process, there are many cases, but the number of cases dwindles as decision makers remove cases from the process. Some cases are dismissed, while others are referred for treatment or counseling. Another way of expressing the funnel effect is to say that there are many more suspects and defendants than inmates. 

The U.S. Constitution requires the government to support every deprivation of privacy, life, liberty, or property with facts. The greater the deprivation, the more facts that government agents are required to produce. A stop on the street requires fewer facts than an arrest; an arrest requires fewer facts than an indictment; an indictment requires fewer facts than a criminal conviction.

Civil Process - Basics

In a civil trial, a judge or jury examines the evidence to decide whether, by a "preponderance of the evidence," the defendant should be held legally responsible for the damages alleged by the plaintiff. A trial is the plaintiff's opportunity to argue his or her case, in the hope of obtaining a judgment against the defendant. A trial also represents the defendant's chance to refute the plaintiff's case, and to offer his or her own evidence related to the dispute at issue.
After both sides have presented their arguments, the judge or jury considers whether to find the defendant liable for the plaintiff's claimed damages, and if so, to what extent (i.e. the amount of money damages a defendant must pay, or some other remedy). Depending on the type of case being heard, a civil trial may not necessarily focus only on the plaintiff's allegations and the defendant's liability. For example, in most divorce cases a trial judge reaches a decision after hearing allegations from both sides of the dispute, and enters a judgment that may favor one spouse on one issue (child custody), and the other spouse as to another issue (alimony). 

The following overview discussion of a civil trial is presented mostly in the context of a typical “plaintiff vs. defendant; civil case.

(Note: Although a trial is the most high-profile phase of the civil lawsuit process, the vast majority of civil disputes are resolved well before trial -- and in some cases before a lawsuit is even filed -- via settlement between the parties, alternative dispute resolution (ADR) processes like arbitration and mediation, or through dismissal of the case.)

A complete civil trial typically consists of six main phases, each of which is described in more detail below:

• Choosing a Jury
• Opening Statements
• Witness Testimony and Cross-Examination
• Closing Arguments
• Jury Instruction
• Jury Deliberation and Verdict

Choosing a Jury

Except in cases that are tried only before a judge (i.e. most family court cases), one of the first steps in any civil trial is selection of a jury. During jury selection, the judge (and usually the plaintiff and the defendant through their respective attorneys) will question a pool of potential jurors generally and as to matters pertaining to the particular case -- including personal ideological predispositions or life experiences that may pertain to the case. The judge can excuse potential jurors at this stage, based on their responses to questioning.

Also at this stage, both the plaintiff and the defendant may exclude a certain number of jurors through use of "peremptory challenges" and challenges "for cause." A peremptory challenge can be used to exclude a juror for any reason (even gender and ethnicity in civil cases), and a challenge for cause can be used to exclude a juror who has shown that he or she cannot be truly objective in deciding the case.

Opening Statements

Once a jury is selected, the first "dialogue" in a personal injury trial comes in the form of two opening statements -- one from the plaintiff's attorney, and the other from an attorney representing the defendant. No witnesses testify at this stage, and no physical evidence is ordinarily utilized.

Because the plaintiff must demonstrate the defendant's legal liability based on the plaintiff's allegations, the plaintiff's opening statement is usually given first, and is often more detailed than that of the defendant. In some cases, the defendant may wait until the conclusion of the plaintiff's main case before making its own opening statement.

Regardless of when opening statements are made by either side in a personal injury case, during those statements:

• The plaintiff presents the facts of the case and the defendant's alleged role in causing the plaintiff's damages (or reasons to find for the plaintiff) -- basically walking the jury through what the plaintiff intends to demonstrate in order to get a civil judgment against the defendant.

• The defendant's attorney gives the jury the defense's own interpretation of the facts, and sets the stage for rebutting the plaintiff's key evidence and presenting any "affirmative" defenses to the plaintiff's allegations (or reasons to find for the defendant).

When a civil lawsuit involves multiple parties (i.e. where three individual plaintiffs sue one defendant, or one plaintiff sues two separate defendants), attorneys representing each party may give their own distinct opening arguments.

Witness Testimony and Cross-Examination

At the heart of any civil trial is what is often called the "case-in-chief," the stage at which each side presents its key evidence and arguments to the jury.

In its case-in-chief, the plaintiff methodically sets forth its evidence in an attempt to convince the jury that the defendant is legally responsible for the plaintiff's damages, or that judgment for the plaintiff is warranted under the circumstances. It is at this point that the plaintiff may call witnesses and experts to testify, in order to strengthen his or her case. The plaintiff may also introduce physical evidence, such as photographs, documents, and medical reports. Especially in more complicated civil lawsuits such as employment discrimination and defective product claims, a plaintiff's utilization of expert testimony and documentary evidence will be crucial in proving the defendant's legal liability.

Whether a witness is called by the plaintiff or the defendant, the witness testimony process usually adheres to the following formula:

• The witness is called to the stand and is "sworn in," taking an oath to tell the truth.
• The party who called the witness to the stand questions the witness through "direct" examination, eliciting information through question-and-answer, to strengthen the party's position in the dispute.
• After direct examination, the opposing party has an opportunity to question the witness through "cross-examination" -- attempting to poke holes in the witness's story, attack their credibility, or otherwise discredit the witness and his or her testimony.
• After cross-examination, the side that originally called the witness has a second opportunity to question him or her, through "re-direct examination," and attempt to remedy any damaging effects of cross-examination.

After the plaintiff concludes its case-in-chief and "rests," the defendant can present its own evidence in the same proactive manner, seeking to show that it is not liable for the plaintiff's claimed harm. The defense may call its own witnesses to the stand, and can present any of its own independent evidence in an effort to refute or downplay the key elements of the plaintiff's legal allegations. 

Once the defense has rested, the plaintiff has an opportunity to respond to the defense's arguments through a process known as "rebuttal," a brief period during which the plaintiff may only contradict the defense's evidence (rather than present new arguments). Sometimes, the defense may in turn have a chance to respond to the prosecution's rebuttal.

Once the plaintiff and defendant each have had an opportunity to present their case and to challenge the evidence presented by the other, both sides "rest," meaning that no more evidence will be presented to the jury before closing arguments are made.

Closing Arguments

Similar to the opening statement, the closing argument offers the plaintiff and the defendant in a civil dispute a chance to "sum up" the case, recapping the evidence in a light favorable to their respective positions. This is the final chance for the parties to address the jury prior to deliberations, so in closing arguments the plaintiff seeks to show why the evidence requires the jury to find the defendant legally responsible for the plaintiff's damages, or why the plaintiff's case is stronger than the defendant's. In turn, the defendant tries to show that the plaintiff has fallen short of establishing the defendant's liability for any civil judgment in the plaintiff's favor.

Jury Instruction

After both sides of the case have had a chance to present their evidence and make a closing argument, the next step toward a verdict is jury instruction -- a process in which the judge gives the jury the set of legal standards it will need to decide whether the defendant should be held accountable for the plaintiff's alleged harm.

The judge decides what legal standards should apply to the defendant's case, based on the civil claims at issue and the evidence presented during the trial. Often, this process takes place with input and argument from both the plaintiff and the defendant. The judge then instructs the jury on those relevant legal principles decided upon, including findings the jury will need to make in order to arrive at certain conclusions. 

The judge also describes key concepts, such as the "preponderance of the evidence" legal standard; defines any specific claims the jury may consider (i.e."fraud,""breach of contract,""emotional distress"); and discusses different types of damages (i.e. compensatory and punitive) -- all based on the evidence presented at trial.
The case then goes "to the jury."

Jury Deliberation and Verdict

After receiving instruction from the judge, the jurors as a group consider the case through a process called "deliberation," attempting to agree on whether the defendant should be held liable based on the plaintiff's claims, and if so, the appropriate compensation for any damages. Deliberation is the first opportunity for the jury to discuss the case -- a methodical process that can last from a few hours to several weeks. Once the jury reaches a decision, the jury foreperson informs the judge, and the judge usually announces the verdict in open court.
Most states require that a 12-person jury in a personal injury case be unanimous in finding for the plaintiff or the defendant, though some states allow for verdicts based on a majority as low as 9 to 3. If the jury fails to reach a unanimous (or sufficient majority) verdict and finds itself at a standstill (a "hung" jury), the judge may declare a "mistrial," after which the case may be dismissed or the trial may start over again from the jury selection stage.

Family Law – Basics

So, family law litigation is simply the process of handling disputes between people going through divorce and the issues that come with divorce. Family law litigation can include post-divorce disputes. And, it can include disputes between people who are not married but are in a relationship akin to marriage.

Litigation, with regard to Family Law, is the process by which a domestic matter is resolved with the Court. The litigation process is used when two parties cannot resolve the issues of their case through any other means. During this process, all decisions are made by a judge in the form of a Court Order. This Order is legally binding, and both parties must comply with the Order as it is written.

The Process

The litigation process begins when one party files a complaint with the Court. The opposing party then has thirty (30) days to file an answer to the complaint. The next step in the process is referred to as discovery. Discovery is the gathering of any evidence that may support a party’s case. This information is generally provided as written documentation. Both parties are obligated to provide full disclosure of all information that is requested. After discovery is gathered, both parties present their case before a judge, and the judge makes the final decisions about the case in the form of a Judgment.

The litigation of domestic relations matters is inherently stressful and can be time consuming and costly. However, for many families, contested litigation is the most effective manner in which disputes can be resolved.

Types of Family Law:

• Custody
• Divorce
• Adoption
• Wills
• Alimony
• Power of Attorney
• Marriage Agreements
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