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September 2003
Greetings from the Kansas Supreme Court and the Kansas Bar Association. This is the first edition of Law Wise for the 2003-2004 school year. The theme of the September edition of Law Wise is Criminal Procedure.
Criminal Procedure-More than What You See on TVThe recent criminal case against Kobe Bryant has sensationalized what Courts, lawyers, and law enforcement commonly know as Criminal Procedure. The Kobe Bryant case has attracted media attention at every stage, raising important questions about what really does happen within a criminal case. While the criminal laws of each state are different, a look at Kansas Criminal Procedure gives readers an understanding of the criminal process from arrest to sentencing. It is important to note that there are many Constitutional rights afforded to Defendants within the criminal justice system; however, this article is limited to only the procedure involved in prosecuting a crime. Arrest In Kansas, an arrest can be made with or without a warrant. If a warrant is issued for the arrest of a suspect, it must be based on an affidavit or a complaint. The complaint or affidavit is a sworn statement under oath describing facts that are sufficient to inform the accused of the crime against him, and support a judge's decision that an offense has been committed by the accused. An arrest can also occur without a warrant where a law enforcement officer believes there is probable cause that 1) a warrant has been issued for the suspect in another state; 2) the suspect has committed a felony; or 3) the suspect has committed a misdemeanor and evidence will be lost, the suspect will not be apprehended, the suspect may cause harm to himself or others, or the suspect has intentionally caused harm to another person. Bail The purpose of bail in Kansas is to assure that all persons, regardless of financial status, are not needlessly detained pending their appearance in court. Any person who is charged with a crime must be ordered released at the first appearance after paying an appearance bond. More typically, defendants "bond out" after being arrested and are given a "bond appearance" date to reappear in court to see if charges have been filed against them. This bond assures the defendant's appearance in court in the future. The Court has the discretion to deny bail if a defendant cannot pay the required bond or if the crime is of a nature where bail is not appropriate. If a defendant has already paid a bond after being arrested, at the first appearance the Court will either continue that bond or in some cases increase the bond. In other cases, where the Court feels it is very likely the Defendant will appear for further hearings, the Court will allow a Defendant to sign a bond of their "own recognizance." An "O.R." bond is basically a promise to the Court that the Defendant will reappear, and it requires no payment. In setting the amount of the bond, the Court considers the nature and circumstances of the crime charged, the weight of evidence against the defendant, the defendant's family ties to the area, employment, financial resources, character, mental condition, length of residence in the community, record of convictions, record of appearance at court proceedings, likelihood of flight, likelihood of defendant to commit further crimes while on release, whether defendant is on probation or parole for other offenses, and whether the defendant poses a threat to the victim and/or witnesses of the current crime. The Court may also place the defendant in the custody of a person or organization willing to supervise the person during release. Upon release, the Court may also impose other conditions, such as refraining from driving, refraining from alcohol and drugs, travel restrictions, refraining from contact with the crime victim, and any other reasonable condition to increase the likelihood the defendant will appear for court. First Appearance In Kansas, after arrest a defendant must be taken without "unnecessary delay" in front of a magistrate. This "magistrate" may be a magistrate judge, or in districts with no magistrate, a district court judge. At this first appearance, the judge reads the charges against the Defendant set out in the warrant or complaint, sets bail, appoints counsel if necessary, and sets the time and place of additional hearings. Status Conference Judicial districts within Kansas use slightly different procedures on the timing and sequence of preliminary hearings and status conferences. Basically, a status conference is a meeting between the Defendant's attorney and the prosecutor for the State where both sides discuss the strengths and weaknesses of the case against the Defendant, and attempt to resolve the case without going to trial. If the two sides cannot come to an agreement, the case goes on to Preliminary Hearing. Usually the Court is not involved in a status conference, but does require the attendance of both sides and most always, the Defendant. Preliminary Hearing There is no right to a preliminary hearing for a misdemeanor charge. Every person charged with a felony is entitled to a preliminary hearing. The only exception to this rule is where the Defendant was charged through a grand jury indictment. In Kansas, the preliminary hearing must by law be held within ten (10) days of the first appearance; however, this rarely happens, and most cases are continued by agreement of both Defendant and Prosecutor to a much later date in order to allow both sides to adequately prepare. During the preliminary hearing, the prosecutor puts on evidence of the crime, and the Defendant's involvement. The Defendant can choose to waive the preliminary hearing, although many defense attorneys use the hearing to get a look at the strength of the prosecutor's case. If the Court decides probable cause exists that 1) a crime has been committed and 2) the Defendant committed that crime, the Defendant will be "bound over" for trial. If the Court finds probable cause does not exist, the Defendant must be released. Arraignment In felony cases, this hearing occurs within one day of the Defendant either being bound over after Preliminary Hearing, or on the original date of the Preliminary Hearing if the Defendant chooses to waive that hearing. At this hearing, the Court reads the charges out loud in open court, and the Defendant must respond to the charges by pleading guilty, not guilty, or nolo contendere (no contest). Defendants sometimes plea no contest instead of guilty because the term means the defendant "does not contest the charge," and that plea cannot later be used against the Defendant as an admission (i.e., in a civil lawsuit). The Defendant must be given a copy of the charges against him at this hearing. In a misdemeanor case, the Defendant may appear through his attorney. Additionally, because no preliminary hearing is required in a misdemeanor case, the "arraignment" usually occurs at the Defendant's first appearance, and the matter is then simply set for trial. Trial If the case against the Defendant was not settled through a plea agreement (which usually involves a negotiated lower charge offered by the Prosecutor and accepted by the Defendant), and the Defendant either waived Preliminary Hearing or was bound over after that hearing, the case is then set for trial. The Sixth Amendment to the United States Constitution guarantees every Defendant a right to trial by jury unless the authorized punishment for the crime is six months or less. Most misdemeanor cases are tried to the Court unless a demand is made for a jury trial. A misdemeanor jury trial is to a jury of six (6) people. A felony jury trial is to a jury of twelve (12) people unless by agreement. Before the trial begins, attorneys for the Defendant and the State are allowed to question potential jurors, a process which is called voir dire. Each side may "challenge for cause" and request the Court to remove any juror who has a conflict of interest with the parties or witnesses, or who is generally unable to be impartial. In addition to "challenges for cause," each side is allowed to strike a number of jurors, depending on the severity of the crime. After the jurors are selected, along with one or more alternate jurors, the jury is sworn in and the trial begins. The Prosecutor starts with an opening statement of the State's case against the Defendant. The Defense attorney may then follow with an opening statement, or may wait until the Prosecutor is finished with their entire case-in-chief. The Prosecutor then puts on the State's witnesses and evidence. This can include eyewitnesses, expert witnesses, character witnesses, and physical evidence. The Defense attorney is allowed to cross-examine each witness after the Prosecution has presented their testimony. After the Prosecutor is finished presenting the State's case, the Defense attorney puts on the Defendant's case. A Defendant has a Constitutional right to choose not to testify. This right is based on the Fifth Amendment of the United States Constitution. After both sides have presented their cases, the Prosecutor gives a closing argument, followed by a closing argument by the Defense attorney. The Prosecutor is then given one last rebuttal speech. After the closing of the case, the jury retires to deliberate. To find the Defendant guilty, the jury must unanimously agree that the Defendant is guilty of the crime charged beyond a reasonable doubt. If the jury cannot agree, they will be ordered by the Court to continue to deliberate. If ultimately the jury cannot agree, a hung jury will be declared, and a new trial required. If the Defendant is found guilty, the Court will schedule a sentencing hearing. The Defendant might be held in custody until that hearing, or might be allowed to continue on bond. If the Defendant is found not guilty, or "acquitted," the Defendant must be released, and may never be charged with the same crime again ("double jeopardy"). If found guilty, the Defendant has the right to appeal the conviction. Sentencing In Kansas, the sentence a Defendant receives is directly controlled by Sentencing Guidelines. These guidelines have replaced the discretion long-held by Judges in sentencing criminal defendants. The sentence a Defendant receives is controlled by the severity of the crime and the Defendant's criminal history. The sentencing guidelines are commonly displayed on a grid or graph. On this grid, sentences are grouped into "blocks" or "ranges" which illustrate those sentences which are presumptive prison (defendant presumed to go to prison), those that fall in a "border box "(Court uses discretion in ordering prison or probation), and those that are presumptive probation (defendant presumed to receive probation). The same crime could potentially mean prison for one defendant and probation for another depending on the defendant's particular criminal history. The Court is allowed to consider aggravating or mitigating factors in departing from the standard sentence in the guidelines, but the factors are very specific and the Court has only limited discretion to allow departures. If a defendant is sentenced to probation, they are required to remain under the supervision of a probation officer, and comply with many terms of probation which could include fines, house arrest, drug and/or alcohol counseling, anger counseling, urinalysis testing, finding employment, and any other condition the Court orders. If the defendant violates the terms of his probation, he can be sent to prison to serve his underlying sentence. If a defendant is sent to prison, he can earn "Good Time" credit towards his release by demonstrating appropriate behavior while incarcerated. After serving a prison sentence, many prisoners are on parole, and are subject to many conditions similar to probation. If the defendant completes the parole period successfully, he will be granted final release from the parole board and his obligation to the criminal justice system will be finished. However, unless expunged, his convictions will remain on his criminal history and may be used against him in calculating sentences for future crimes. If a prisoner fails on parole, he will likely serve the remainder of his sentence. Conclusion The recent media attention surrounding the Kobe Bryant case has opened the public eye to the importance of criminal procedure in resolving criminal cases. Each stage of the criminal process is crucial in protecting the Constitutional rights of the accused as well as affording justice to the victims of crime. Our system of justice relies heavily on these procedures and the Courts that enforce them for its survival. This article was written by Lori Bolton Fleming from the Spigarelli Law Firm in Pittsburg. |
Ah, the good ole lazy hazy days of summer. Days to kick back, to relax, to not think about students and lesson plans, right? Not. We are aware of the increasingly short summer breaks students and teachers are experiencing these days, and that many have "second occupations" during the summer break. We also recognize the added pressures exerted on an already pressured schedule to comply with state and federal mandates.
Even more, many teachers use the break to seek additional education and information relating to their field. Four such teachers who gave up significant amounts of time this past summer did so at the invitation of the Citizen and Law Education project. We speak of Brett Fenton, a Burlingame High School teacher; Kay Pelcak and Dorothy J. Coleman, both of Sheridan Elementary, Junction City; and Susan Sittenauer, Seaman High School, in Topeka, who is the national Law-Related Education Teacher of the Year!
Brett attended the 2003 Supreme Court Summer Institute June 19-24 in Washington D.C. Participants are selected in competition on the basis of recommendations of the state law-related education coordinators from each participating state.
The Institute is a joint project of Street Law, Inc. and the Supreme Court Historical Society. They partner to bring some of the best law, government and social studies teachers from across the country together for five days of educational activities related to teaching about the U.S. Supreme Court.
The institute is designed to help teachers grow professionally by deepening their knowledge about the Supreme Court. Sessions led by Supreme Court experts, journalists, authors, and lawyers give teachers an in-depth understanding of how the Court chooses and decides cases, and what it is like to argue before the court. The week culminates with a visit to the Court to hear decisions handed down and a private reception at the Supreme Court with a justice.
It also prepares teachers to use innovative teaching methods as well as cutting edge technology to help students master standards-based content related to the Court and its cases. Beyond the content-rich activities, teachers are also equipped with the skills and tools to train fellow teachers at home.
Fenton, this year's attendee from Kansas, is a first-year social studies teacher at Burlingame Jr./Sr. High School. He teaches current political issues, world geography, American history, and American government. His expenses were paid in part by Streetlaw and in part by the Kansas Citizen and Law Education project.
Kay Pelcak and Dorothy Coleman, of Sheridan Elementary, Junction City, traveled to Chicago to attend the annual Constitutional Rights Foundation Violence-prevention Outcomes in Civic Education (VOICE) program August 4-6. There, they learned about CRF's two elementary-level programs that combine law education, peer mediation, and service learning to educate 4th grade through middle school students about our democratic government and ways to resolve conflicts peacefully. One of the two curricula features over 50 lessons designed to increase academic achievement, foster peaceful resolution of conflict, and spark community service.
The second also is a primary grades social studies curriculum but adds critical readings as a focus to the study of conflict resolution, law-related education, and service learning. Using children's literature, there are 12 lessons in the curriculum that introduce students to the concept of governance, develop their understanding of responsibility, focus them on conflict resolution, and engage them in a service learning project.
Finally, Susan Sittenauer, chair of the social studies department at Seaman High School in Topeka, traveled to San Francisco in August to receive the 2003 Law-Related Education Teacher of the Year Award presented by the American Lawyers Auxiliary at the annual meeting of the American Bar Association. Besides a framed certificate, Susan received a check for $1,000 from the auxiliary.
Susan was nominated for the award based on her many years of teaching in the law-related education field. She teaches five LRE courses during the year, plus serves as the faculty sponsor of the Students Against Destructive Decisions (SADD), Drug Abuse Resistance Education (DARE), and the high school's annual History Day competition. Susan and a colleague also implemented community service at the high school many years ago.
Travel by all four teachers came at no personal expense, but was funded by the Citizen and Law Education project or other local and national entities. Congratulations, Brett, Kay, Dorothy, and Susan!
Jillian Saragusa of Kansas City has won top honors in the seventh annual "Images of Freedom" student photography competition sponsored by the American Bar Association. The Images of Freedom competition gives students the opportunity to create powerful images that express how they view freedom and the laws that protect them and their communities every day.
The Piper High School student won second place for a photograph titled "Justice on Mind". You can view the picture at www.abanet.org/publiced/imagescontest/win03.html
As part of Law Day, which is observed on May 1, student competitors send in their original photographs depicting the Law Day theme. This year's theme is "Independent Courts Protect Our Liberties". Established by President Dwight D. Eisenhower in 1958, Law Day celebrates the American heritage of liberty, justice and equality under the law. It provides an opportunity to help students and the public understand how the law protects their freedoms. More than just a day to reflect on this nation's legal heritage, Law Day is a call to action that often encompasses weeks of programs and activities conducted by schools, bar associations, courts, and civic groups.
The U.S. Institute of Peace invites all students in grades nine through twelve to participate in the 2003 - 2004 National Peace Essay Contest. Contest winners receive money for their college or university studies. First place state winners will receive college scholarships of $1,000. First-place state winners will also compete for national awards of $10,000, $5,000 and $2,500 for first, second, and third place. All first-place state winners are invited to attend an all-expense-paid awards program in Washington, D.C. in June 2004.
A guidebook for the contest is available on-line www.usip.org/npec. It contains all the necessary information, including this year's topic, guidelines, awards and program, sample essay, information for coordinators, and the application forms. The deadline for this contest is January 22, 2004.
The ABA has a free newsletter that contains information on law-related education. Law Matters, which reports on developments, ideas, programs, and resources in the field of public education about the law, is published three times each year (winter, summer, fall). For information on ordering, contact the ABA at (312) 988-5735 or
abapubed@abanet.org.
The Law-Related Education Inventory has the following items that might be useful in discussing the Supreme Court:
The Law-Related Education Inventory has many resources to help teach about law-related topics. To order a catalog, call Btissam Touijer at the Kansas Bar Association, (785) 234-5696 or email btissam@ksbar.org. The Kansas Bar Association and the lawyers in your community sponsor the Law-Related Education Inventory. The clearinghouse will mail free copies of law-related posters, games, mock trials, booklets, lesson plans, and other aids. It is open Monday through Thursday, 8:00 a.m. to 7:00 p.m., and Friday, 8:00 a.m. to 5:00 p.m. The director of the Teachers College Resource Center, which houses the Law-Related Education Inventory, Marla Darby, can be reached at Darbymar@esumail.emporia.edu/
Terrific Technology for Teachers
Appellate Courts Welcome You The Kansas Court of Appeals, an 11-member, intermediate appellate court sits in three-judge panels. The court is pleased to have students attend the hearings. The Court of Appeals will next be hearing cases in Topeka, Kansas City, KS, and Wichita September 23-24. Two three-judge panels will sit in Wichita both days, while a third will sit in the Wyandotte County Courthouse on September 23 and in Topeka on September 24. Four panels will sit October 22-23 in the same cities.
The Kansas Supreme Court is the highest court in the state, and includes seven members. Students are also welcome at oral arguments before the Supreme Court. The high court holds its hearings only in Topeka. The Supreme Court will be hearing oral arguments during the weeks beginning September 8 and October 27. If you have any questions concerning the Kansas appellate courts, or if you would like to bring your class to either the Kansas Supreme Court or the Kansas Court of Appeals, teachers may contact Ron Keefover, Education and Information Officer of the Office of Judicial Administration, 301 West 10th Avenue, Topeka, Kansas 66612-1507, (785) 296-4872, for assistance. You can also contact Mr. Keefover via email at keefover@kscourts.org.
The first Monday in October is the day the United States Supreme Court starts its term. Kansas judges and schools will use the month of October to expand an interactive educational program on the United States Supreme Court for Kansas Students.
The U.S. Supreme Court in Review program utilizes volunteer judges and attorneys to make presentations to students on recent U.S. Supreme Court cases. While re-enacting the cases, Kansas lawyers and judges involve audience members in the presentations by allowing them to play the roles of litigants, lawyers, and judges. The most commonly presented court cases involve the First and Fourth Amendments.
If your school is interested in participating in the program and is located in Sedgwick County, please contact Hon. Warren M. Wilbert, Sedgwick County Courthouse, at (316) 383-8293 or email wwilbert@dc18.org. If your school is in Johnson County, you may contact Hon. Patrick D. McAnany, Johnson County Courthouse, at (913) 715-3880 or email patrick.mcanany@jocoks.com . And if your school is in Shawnee County, please contact Hon. Eric S. Rosen, Shawnee County Courthouse, at (785) 233-8200 or email erosen@shawneecourt.org. These judges agreed to coordinate the program in their respective counties.
If you have further questions or would like additional information about the Supreme Court In Review, please contact Btissam Touijer, public services director, at (785) 234-5696 or email btissam@ksbar.org.
Grade Level: 9-12
Purpose: Many students have limited knowledge about their rights in the criminal justice system. This lesson is important in that in today's ever-rising crime rate, our criminal justice system seems at times not to work for anyone but the criminal. This unit will help the student understand the importance of the system to the accused, not just the guilty.
Objectives:
Procedures:
A. Arrest
B. Preliminary hearing is an informal hearing before a judge to determine if sufficient evidence exists to have suspect bound over for trial.
C. Jail or Bail
D. Grand Jury
E. Arraignment and Plea
F. Trial
G. Verdict
H. Sentencing - is by the judge except in cases of murder and rape where jury determines the sentence.
I. Appeal -- A person not satisfied with the justice the court has dispensed may attempt to correct the situation.
J. Pardon and Commutation
Suggested Activities:
The lesson plan was contributed to the Columbia Education Center by Ted Foster, Sequoyah High School, Clamore, OK. This lesson plan can be found at the Columbia Education Center www.col-ed.org.
Arrest Grade Level: 9-12
Overview: The relevance and importance of laws for every citizen is a difficult point for students to appreciate. They often state that laws don't apply to them, or that only adults need to worry about our legal system. Therefore, students appear to have little understanding and appreciation of our legal system. In order to introduce the concept or the relevance of the law to teenagers I began a study of the law with an activity entitled "Arrest."
Purpose: The purpose of the activity "Arrest" is to give students first hand knowledge about an arrest of a classmate and his/her subsequent trial. Students become active participants in the legal process as they become witnesses, jurors and defendants in a trial simulation.
Objectives: By the conclusion of this activity students will be able to:
Activities: This activity can be amended to fit individual class needs.
Resources/materials needed:
Tying it all together: "Arrest" was a successful activity for my students and for me. Students became directly engaged in learning and took an active part in the judicial process. As a result of this activity they better understood the difficulties faced by law enforcement officers and officers of the court in their day-to-day responsibilities. They gained an appreciation of the process and recognized the importance of the legal system to each and every citizen. "Arrest" is an activity that works.
The lesson plan was contributed to the Columbia Education Center by Maureen Ryff, Wheatland High School, Wheatland, WY. This lesson plan can be found at the Columbia Education Center www.col-ed.org.
Law Wise is published by the Kansas Bar Association during the school year. The Kansas Bar Foundation, with Interest on Lawyers Trust Accounts funding, provides support for this publication. Published free, on request, for teachers or anyone interested in law-related education, it is edited by Crystal Marietta, Pittsburg, (620) 231-5620. For further information about any projects or articles, contact Ron Keefover, Education and Information Officer of the Office of Judicial Administration, Topeka, (785) 296-4872, or Btissam Touijer, Public Services Director of the Kansas Bar Association, Topeka (785) 234-5696. Law Wise is printed at the Kansas Bar Association, 1200 Southwest Harrison, P.O. Box 1037, Topeka, Kansas 66601-1037.
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