Criminal Justice study guide

Peoples 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
whats going on
Defendant what does the criminal justice system look like from defendants 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: nobodys 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 didnt 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 inadmissible)
Nevertheless, state remains incredibly powerful
o Inquisitional system French, continental European
State-focused

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 doesnt know what the charges are, whos 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?