Criminal Law and Procedure - Coursework Example

Law work Qn1: A paralegal is a professional working as a legal assistance in a law firm. A paralegal must be qualified by education, training or work experience to work as such and perform the duties expected of such a profession. In cases where the lawyer is not present, it is the duty of the paralegal to carry out some of the tasks of the lawyer, thus a legal assistant is expected to be versed in law and various legal doctrines. In a law firm, there is no limit as to what a paralegal cannot do. The lawyer draws the line in terms of the extent that a legal assistance can work in a law firm. Due to this reason, it becomes paramount for a paralegal working in a criminal law firm to be versed in various legal doctrines associated with criminal law. One of these doctrines is the doctrine of disclosure. In criminal trial, the prosecution is under a duty to disclose all material evidence that it intends to use in the trial of the defendant to aid in the defense. The defendant is supposed to be provided with evidence that is with the prosecution, even though, the defendant will not use it as long as it will help in the defense. To disclose entails the process through which the defendant can find out about the prosecution’s case. It can be through getting the statements made by the prosecution witness as well as examining the evidence of the prosecution. The doctrine of disclosure was developed in the case of Brady vs. Maryland [1963] which is commonly referred to as the Brady rule. The Brady rule asserts that a prosecution is not to suppress evidence upon the request by the accused as this goes against the due process. In addition, the defendant in a criminal case is required to outline the certain evidence to be used in the defense. Within the law firm, it is upon the paralegal to ensure that the doctrine of disclosure works effectively. This is due to a paralegal’s task of drafting documents as well as interviewing clients. A paralegal should, therefore, ensure that the rules of disclosure have been followed since they are carried out administrative work in a law firm (Emanuel, 2007). Qn2: A search warrant is a court order issued by a magistrate or a judge to a legal enforcement officer directing them to conduct a search to a person, a vehicle or a location for purposes of finding evidence in a criminal suit. When any evidence is found in conducting the search, the police officer is required to confiscate it. A search incidental to arrest does not require an issuance of the warrant. A law enforcement officer does not require a search warrant to search the person or anything surrounding the person during the incident of arresting that person. The rationale behind a search warrant incidental to arrest is a protective measure for the law enforcement officer. An instance of a search incidental to arrest is where a person is flagged down by traffic police officers for drunk driving. During the time of the arrest, the law officers can conduct a search of the car and any incriminating evidence found inside the car can be admissible against the person. The regulatory search requirements involve the exceptions set out in the Fourth Amendment that protects the citizens against unreasonable government searches and seizures. The Fourth Amendment states that no warrant of search should be granted not unless there is a probable cause that is supported by oath or affirmation. The warrant should outline the and describe the person or place to be searched and the things expected to be seized. The exceptions to the Fourth Amendment are where a person consents to the search, in cases where the police are engaged in hot pursuit and where there is an emergency. For instance, a law enforcement officer can break into a house in which a person they had been pursuing renters since by the time they obtain a warrant the person will have disappeared. While the police are in the house and discover drugs, they can seize the drugs and arrest the owner of the house (Bacigal, 2009). Qn3: In criminal law, there are two kinds of burden, the legal burden, and evidential burden. The legal burden is termed as the burden of proof imposed on a party to prove a fact or facts in issue. There is the presumption of innocence until a guilty verdict is reached in criminal trials. It is upon the prosecution to prove the guilt of the accused and the burden of proof is imposed beyond any reasonable doubt. It does not mean absolute certainty but implies that there should be no doubts left as to the innocence of an accused person. If the prosecution leaves some doubts as to guilt of the accused, the jury or judge should hold in favor of the accused person (Hooper and Ormerod, 2012). Qn4: Exclusionary rule is a court-made rule designed to exclude evidence that has been gathered in violation of the person’s fourth amendment rights. The fourth amendment guards against illegal searches and seizure by the law enforcement officials. Evidence collected as a result of the violation of the accused person’s fourth amendment rights will be excluded in the trial. Exclusionary rule seeks to uphold the fourth amendment rule. It is a constitutional right of every person to be free from illegal searches and seizures. In addition, the exclusionary rule is intended to safeguard against the excesses of the law enforcement officers. The police officers are deterred from misconduct of committing illegal acts since they won’t benefit from such acts. There would be no conviction that would come out of acts that contradict the provision of the fourth amendment (Tsesis, 2010). Qn5: The fourth amendment establishes that a valid search warrant must describe with particularity the persons or premises to be searched and the goods to be seized. A warrant of arrest must be detailed enough to enable the officer wielding it to identify the person or premises to be searched without any reasonable difficulties. The rationale behind the doctrine of particularity is to guard against abuse of warrant or searches that can be occasioned by general warrants. Particularity places reasonable limits to the extent of the search to be conducted and goods to be seized. The officer should be restricted from seizing and searching for more than is necessary for the purposes of the evidence of an alleged crime ( McCord, Sandra and Bailey, 2012). Qn6: Broyles (2011) asserts that duress is a defense an accused person can raise in a criminal trial. Duress occurs where a person is deprived of their free will to choose by means of a threat to infliction of harm or violence, as well as a threat to personal liberty. An accused person raising this defense does not reject commission of the crime but attributes the commission as a result of being forced. The threat must amount to a threat to kill or to cause a grievous bodily harm if the person under duress does not do what they are being forced to do. In addition, the person under duress must have no chance of escape from the threat envisioned unless they comply. The person being forced to commit an offense by means of duress must believe such threats are genuine, and they are eminent to be carried out. However, lesser threats as to the disruption of a financial gain do not amount to the requirements of a defense of duress. Having outlined the requirements for a defense of duress in a criminal trial, Maggie cannot raise this defense successfully in a criminal court. By being left out of the will, does not meet the threshold of a threat that amount to a defense of duress. It could be duress if Maggie were threatened with actual bodily harm or the threat involved death of Maggie or harm to a person very close to Maggie. In addition, the threat of being left out of the will is not eminent to take place. Qn7: An indictment is a document containing criminal charges that are brought by a grand jury. The grand jury is normally called in instances of serious felonies by the prosecution to decide whether to bring criminal charges or indictment against an accused person. The indictment is intended for felonies that are punishable either by a death sentence or life imprisonment. Qn8: Majority of criminal cases are settled through bargaining due to benefits that may result as a result of adopting it. From the view of the defense, numerous benefits can accrue out of a plea bargaining. Plea bargaining removes the risk of uncertainty in the outcome of a case. At trial, the accused person can either get off to getting the maximum sentence under the offense. Plea bargaining offsets this risk and uncertainty of going to trial. In addition, it can result in the reduction of the sentence. Even though the prosecution may cease from lessening the charge, they can lower the sentence sought below the maximum under plea bargaining. The difference can be a year that is beneficial to the defendant. Plea bargaining helps the parties to resolve the matter quickly. The effect of plea bargaining is concluding the case without the need of having the trial. This is advantageous to defendants who seek to move on with their lives quickly (Boll, 2009). Qn9: Evidence can either be direct evidence or circumstantial evidence. Direct evidence is evidence that can stand on its own. Direct evidence can be used to come to a decision without reasoning or supporting it. For instance a person who opens a door and sees it’s raining if they say later they saw they rain that would be direct evidence. Circumstantial evidence is the indirect evidence in that it does not directly prove the fact in contention. It involves to a series of facts combined together rather than a fact being independently inference on its own A person walking in with a rain coat and the witness testifies that they saw the person walking in with a raincoat that had drops of water is circumstantial evidence that the drops were as a result of the rain. Qn10: It is true that the fourteenth amendment supports due process of the law. Qn11: Tommy is guilty of arson because he had a general intent to commit the act of setting the home on fire. Qn12: It is false according to the Federal Kidnapping Act. Qn13: It is true a sentence served at the same time is a concurrent sentence. Qn14: It is true this can happen under the conspiracy statutes. Qn15: A stop and frisk Qn16: False. Being photographed does not amount to violation against right to self incrimination. Qn17: A motion to change venue Qn18: Foreign Intelligence Surveillance Act Qn19: It is false the jury do not participate. Qn20: Pro se representation is where a defendant has himself or herself as counsel. Qn21: The consent must be express. It should not be implied but should be expressly said by the person. Qn22: False the judge will not find in favour of Bert for purposes of violition of Fourth Ammendment. Qn23: True. A defendant gives up the right to trial by jury. Qn24: Is an arm of FBI. Qn25: Grand juries work in secret due to the gravity of the cases that they handle. The grand jury concerns with very serious offences that are punishable by a death sentence or life imprisonment. The grand jury is normally called in instances of serious felonies by the prosecution to decide whether to bring criminal charges or indictment against an accused person. The indictment is intended for felonies that are punishable either by a death sentence or life imprisonment. Qn26: Direct examination, cross examination, redirect, recross Qn27: Sixth schedule. Qn28: True eighth amendment prohibits excessive bail terms Qn29: Gives notice of prohibited conduct Qn30: A judicial review is a complaint in a Supreme Court that does not look at the merits of the case but the procedure followed in deciding a case. Commencement of judicial review in supreme court start through application to the supreme court by way of an originating application (Forms 54,55 and 56 UCPR). A person whose right has been adversely violated by an administrative decision has a right to request a statement of reasons as to why the decision was arrived. If the reasons are not satisfactory, the person proceeds to the Supreme Court for a statutory order for review. The review covers the procedures followed in reaching to the decision. References Hooper, A., & Ormerod, D. C. (2011). Blackstones Criminal Practice 2012. Oxford: Oxford University Press. Bacigal, R. J. (2009). Criminal law and procedure: An overview. Clifton Park, NY: Delmar Cengage Learning. Tsesis, A. (2010). The promises of liberty: The history and contemporary relevance of the Thirteenth Amendment. New York: Columbia University Press. McCord, J. W. H., McCord, S. L., & Bailey, C. S. (2012). Criminal law and procedure for the Paralegal: A Systems approach. Clifton Park, NY: Delmar Cengage Learning. Broyles, D. S. (2011). Criminal law in the USA. Alphen Aan den Rijn. The Netherlands: Wolters Kluwer Law & Business. Boll, M. (2009). Plea bargaining and agreement in the criminal process: A comparison between Australia, England, and Germany. Hamburg: Diplomica-Verl. Emanuel, S. (2007). Criminal law. Austin: Wolters Kluwer Law & Business/Aspen Publishers. Read More