Ideally, individuals will govern themselves, will act morally and ethically. However, we know that humans do not always act ethically and morally. And therefore, the criminal law steps in and uses its power to force people to act ethically. My name is Michael Frank. I'm the Chief United States Magistrate Judge in the Northern District of Florida. The criminal justice system might be seen as the last stop in the governance of the people. Again, the hope is that people will govern themselves, but when they don't, the criminal law steps in and punishes them for bad conduct. The purpose of the punishment, among others, is to deter those individuals specifically from committing crimes, but also to show others that there will be punishments, bad consequences for bad acts, and therefore deter them from committing bad acts in the future. So nearly everyone would agree that we want a just society and that justice is the ideal for society. But there are many different understandings of what justice would entail in particular situations. In the criminal justice context, it's the general understanding that by violating someone's rights, namely the victim's rights, or by violating statutes enacted by Congress to protect the American people, there's a sense that the person should be punished for that, to set things right, to balance the scales of justice, if you will, in addition to deter those individuals and to deter others from committing similar crimes. The American criminal justice system does not usually define specific just outcomes. Rather, it sets procedures that are designed to ensure that there are just outcomes. So we have this concept of due process and the key in due process is, of course, initially notice, so an individual will be informed of the charges against them, and then an opportunity to defend themselves and to answer the charges against them. The American criminal justice system has set up numerous procedural rights to afford individuals a full opportunity to defend themselves. These rights, of course, include the right to a jury trial, the right to counsel, the right not to incriminate oneself, the right to compel witnesses to come in and testify, among many others. There are, of course, also statutory rights that Congress has provided to individuals as well. So, constitutional rights are expensive, they certainly do have a cost for society. But the founders thought that that cost was a cost worth paying. The founders wanted to ensure that innocent people were not convicted. and not unlawfully and unjustly punished. To do that, however, there is an understanding that a number of guilty people necessarily will have to go free and that society will have to pay more, both in costs of unconvicted criminals and literally for money that society will have to pay to ensure that people are not wrongly convicted. Not every society places a premium on protecting the innocent, but certainly in American society, we do hold that in high esteem and try to ensure that the guilty are convicted and the innocent go free. It's not always easy to ensure that the innocent are not convicted, but the American criminal justice system goes a long way to trying to ensure that. Certainly the right to counsel is one of the extremely important rights that criminal defendants enjoy. In England, for a long period of time, individuals did not have a right to counsel. And so the founders, the framers, of the United States Constitution wanted to ensure that individuals certainly would have legal counsel when the full power of the state is arranged against the individual and is trying to imprison and or fine an individual. All citizens bear the costs of rights. They also theoretically enjoy the benefits of them. So, for example, costs of a jury. Many countries do not have juries decide criminal cases, but the framers thought that was particularly important. And, of course, this is a right enshrined in our Constitution now. The idea is that other citizens should judge whether an individual has committed a crime. And this is, again, another stop, another way to prevent the government from having absolute control over the criminal justice system. It allows citizens to determine whether other citizens are guilty or not. That entails an expense, but one that we as a society think is a worthy expense to pay. The United States system differs from the system that is common throughout much of Europe and, in fact, much of the rest of the world. The United States uses what is called an adversarial system where two individuals, or two parties essentially fight it out in court. They're responsible for presenting the law and the facts that are most supportive of their positions. That's not how things operate in many other countries. Under the civil law system, also known as the inquisitorial system, there is an examining magistrate judge or a judge who will do the investigation of a case and present that to trial judges or trial bodies who will determine guilt or innocence. The framers certainly were aware of the civil law system, the inquisitorial system but they adopted the Anglo common law system, the adversarial system, and that has seemed to work very well for the United States. So, the whole foundation that the Constitution has set up is important for criminal law, in particular the separation of powers and our federal system. But certain aspects of the Bill of Rights certainly, , are commonly litigated in criminal cases and become very important. For example, the Fourth Amendment guarantees individuals that their homes and persons will not be searched or seized without reasonableness. The Fifth Amendment also has important rights for individuals with respect to the criminal justice system. For example, the Fifth Amendment tells an individual that you cannot be, you will not be tried twice for the same crime. It's the Double Jeopardy Clause. The Fifth Amendment also, through the Due Process Clause, incorporates a number of rights into our criminal justice system. For example, the right not to be convicted except upon proof beyond a reasonable doubt, the fact that the burden of proof remains on the government at all points in time. These are very important rights in the criminal justice system. The Sixth Amendment also has important rights in our criminal justice system. For example, the right to counsel, the right to a trial, the right to a jury trial, the right to a speedy and public trial. All of these things are extremely important. But for the Speedy Trial Clause, the government conceivably could imprison someone, incarcerate them, and hold a trial five or ten years down the road. That obviously would be very difficult for a person, would destroy a person's life. In the English system for a long period of time, criminal defendants did not have a right to counsel. Obviously, having an attorney, an experienced person, learned in the law to assist a criminal defendant in presenting his case and or defeating the government's case is particularly important and one of the rights that criminal defendants find particularly worth fighting for. The right to counsel is one of the most important rights that a criminal defendant has. The right to a public trial is also a particularly important right. In some countries, trials do not have to be public. Many parts of the criminal investigation and litigation of criminal cases occur behind closed doors. That has the potential to breed corruption. Light and openness have disinfecting properties and the American system believes that it's important to have our trials be public and allow any member of the public to come in and observe a trial and see what evidence the government has to present against an individual. It ensures that there is no secret evidence admitted in our trials and it ensures that criminal defendants are only prosecuted and convicted if there is sufficient evidence. The Eighth Amendment also has some, certainly has some value in criminal cases. The Eighth Amendment prohibits excessive bail in federal cases Not every state has that same prohibition, but it's certainly the Eighth Amendment prohibits excessive bail. The Eighth Amendment also, of course, prohibits cruel and unusual punishments, which obviously that's something that an individual who's convicted of a crime wants to ensure that they do not receive cruel or unusual punishment. So the criminal law talks about the actus reus of a crime. That's the actual act, the guilty act committed by a person. For most crimes, there also has to be a mens rea, that is, the guilty mind part of it. So, prosecutors and defense attorneys will talk about the actus reus element and the mens rea element of a crime. So, for crimes, there need not necessarily be any harm actually occur. So, for example, in the cases of conspiracy, merely forming an agreement to commit a crime is a crime itself and can be punished. The person need not actually succeed in committing the crime that they've conspired to commit. Under conspiracy, merely agreeing to commit a crime is a crime. The commission of the crime itself need not have occurred. Likewise with attempt. Attempt is a crime in and of itself, regardless of whether one succeeds in the attempt. The criminal law usually has a mens rea requirement because society wants to ensure that individuals are not punished for things that they did not intend to do. When you take a car from a restaurant, when the valet has handed you keys, that is not theft of that car if you thoroughly believe that that is your car. The mens rea requirement wouldn't be met in that instance because you had no intent, no purpose to steal someone's car. You thought that car was your car. The mens rea element also is important to ensure that we don't waste prosecutorial resources on individuals who do not intend to commit crimes. Criminal law seeks to punish those only who intended to commit crimes and who have actually taken substantial steps toward committing crimes, not merely those who have thought about committing a crime or have dreamed about something like that. Mens rea is a Latin term, of course, Latin was the language of the intelligentsia throughout much of European history and so the United States, of course, inherited a lot of its terminology from England where we inherited much of our common law tradition. So mens rea is important to ensure that we don't punish innocent individuals and that we don't punish people who did not intend to commit crimes. It's also important to ensure that we don't over punish. For example, if someone is fearful that they will be prosecuted for something, they may completely avoid that area of behavior to ensure that they are never prosecuted. This could have deleterious consequences for society. So, for example, if people thought they could be prosecuted for publishing articles, they may never author articles. Newspapers may never be published. We may never have documentaries. People will change their conduct based on what they perceive the risk of prosecution to be. Therefore, mens rea also helps to ensure that people are not overly fearful of being prosecuted for what would otherwise be innocent conduct. The first Judiciary Act, namely the Judiciary Act of 1789, created the federal courts. It also created the Marshals, the United States Attorneys, and the Attorney General. The Attorney General is now the head of the Justice Department. The Justice Department itself was not created until approximately 1870. After the Civil War, there was a lot of litigation from the Civil War, and Congress felt that a Justice Department was necessary to handle all the litigation. Until then, the United States Attorney's Offices and the Attorney General and his assistants, , handled most of the federal litigation. In the United States system now, the Justice Department in Washington, D.C. has responsibility for overseeing the prosecution of a number of crimes. Most federal criminal prosecutions are undertaken by the United States Attorney's Offices throughout the various districts in the United States. The Justice Manual, enacted by the Justice Department, tells the United States Attorney's Offices when they have to seek permission from various components of the Justice Department to prosecute certain types of cases. So sometimes the United States Attorney's Offices have to consult with the Justice Department on civil rights cases, national security cases, antitrust cases but otherwise the United States Attorney's Offices has substantial autonomy and freedom to prosecute federal crimes. Prosecutors serve the people of the United States by ensuring that those who have harmed the United States or the United States citizens are punished for their conduct. This will specifically deter those individuals and hopefully will deter others who are contemplating such actions in the future. A prosecutor has an obligation to ensure that a defendant's constitutional rights are protected. And to ensure that any action taken by the prosecutor and the investigator comports with the Constitution. A good prosecutor will zealously represent his client, but must also be cognizant of the effect that prosecution has on society. A prosecutor must always ensure that his actions or her actions help society. Will help society protect itself from criminals but will also help criminals hopefully someday to be rehabilitated. You have to be careful with that. There's some talk about, you know, how when a prosecutor's asking for a sentence, how much you can talk about rehabilitation of the individual but one of the goals of criminal prosecution certainly is rehabilitation of criminals. Rehabilitation of criminals obviously is important to society. Most individuals who are incarcerated ultimately will be released back into society. So to the extent the criminal justice system can help in the rehabilitation of individuals, society will benefit. So, the prosecutor in a trial has the obligation to present the government's evidence. In addition, the prosecutor has an obligation to ensure that the defendant's rights are protected through all stages of the proceedings, both during the investigation of a crime and during the prosecution of it, all the way to sentencing. The prosecutor performs this function in multiple ways. Most Americans, through movie and television, see the prosecutor only as a person who operates in the courtroom. And indeed, that is an important function of the prosecutor. But prior to any court proceedings, the prosecutor, a diligent prosecutor, will be hard at work assembling a case, putting a case together, trying to ensure that the case is sufficient to meet the elements of the crime that is charged. Prosecutor has taken oath to the Constitution of the United States to ensure that their conduct will abide with the Constitution so that they act in accordance with the principles of the Constitution. The prosecution, for lack of a better term, represents the people of the United States. The prosecution is designed to ensure that the people of the United States are protected from crime. They act, after the fact, after crimes have been committed, but they do have a protective function. By prosecuting individuals and imprisoning them, you can incapacitate those individuals and prevent them from committing other crimes during their time of incarceration. The prosecution also has the ability to deter others from committing crimes. Individuals who might be inclined to commit crimes see the punishment that is meted to criminals who have already committed crimes, and that might encourage them to abandon a life of crime or not pursue that as they otherwise would. The prosecution acts to prosecute crimes as they arise. Of course, various prosecution offices have various priorities as society's priorities change. There may be crimes that are particularly important to prosecute at a particular time, and that other crimes might be more important at other times So all law reflects some morality in the broad sense of the term “morality.” In some sense, , in the broad sense, morality is society's view about how things should be and how resources should be distributed and how resources should be used by the government. So all law, including criminal law, reflects some morality. For example, even our laws against speeding reflect a morality. When society sets a speed limit, it says that we think transportation, including speedy transportation, is important. But at a certain point, we think that the safety of individuals is more important. And therefore, we set a speeding limit at a certain level. It varies from street to street, from jurisdiction to jurisdiction. The criminal law is a further reflection of society's morality. Some people talk about quote unquote victimless crimes, but in fact all crimes have some victim in some sense of the term. So for example, sometimes people talk about narcotics distribution as being a victimless crime because the individual has been intercepted prior to distributing the drugs and there has been no victim who has actually consumed those drugs. But in fact, society prosecutes cases like narcotics cases to try to inhibit individuals from peddling their poison from causing people to become intoxicated with drugs to become addicted to drugs, and the deleterious consequences that addiction entails. Society enacts a number of statutes that may seem not to protect victims, but they protect society in general to ensure that there are no second or third order effects which actually would victimize individuals. Narcotics cases are some of the paradigmatic cases, such that some people say there are no victims, when the drugs were never distributed, but we, as a society, choose to help protect people, those who might become addicted to drugs, those who might do bad, evil things while on drugs so we take these precautions to try to protect society. So in plea bargaining, the government discusses with the defendant or the defendant's counsel a resolution to a case short of a trial. In the typical agreement where there's a plea agreement, the government makes concessions. And in exchange, the defendant will plead guilty to a crime or a number of crimes. The agreement is like any other contract in that both sides give up something and both sides believe that they are benefiting from it, lest there would be no contract, lest there would be no plea agreement. So, in many plea agreements, the government will allow an individual to plead to a lesser offense than the government might otherwise be able to prove at trial. And in exchange, the defendant typically will receive a lesser sentence. There are many advantages to plea bargaining. For the defendant, it allows the defendant some certainty, some plea agreements may entail a certain sentence. This allows the defendant to know what his sentence will be if he pleads guilty. It also allows the defendant typically to know which crimes he will be convicted of, as opposed to going to a trial and, and determining , guilt or innocence based solely on what the jury decides. Plea bargaining also has advantages for the government. It allows the government certainty to know that an individual will be convicted of a crime and that an individual sometimes will serve a particular sentence. It also saves the taxpayers substantial sums that otherwise would be expended during trials. The resources that would be used in a trial can then be used to stop other crime. Plea bargaining also sometimes spares victims the trauma of having to testify in a trial. So there are many advantages to plea bargaining. Plea bargaining is a more recent phenomenon in American history. Plea bargaining generally did not exist at the founding of our nation. It's become more, much more common in the 20th and 21st centuries. Some individuals criticize plea bargaining. It’s criticized from various perspectives. Some people argue that plea bargaining allows criminals to get off with lesser sentences and lesser punishment, and without having to take full responsibility for the damage that they've done to society. Other individuals argue that plea bargaining allows the prosecution a free pass, an ability to get a conviction without actually proving its case. There have been some statements that the prosecution uses its hammer to force individuals to plead guilty and that but for plea bargaining, individuals would not be convicted of crimes. There are of course many advantages and disadvantages to plea bargaining. The fact of the matter is plea bargaining will not be going away anytime soon in our system as it exists now. There are just simply too many crimes and too few prosecutors and investigators to have trials in every single case. There aren't enough judges to try every single crime that is charged in the United States. So plea bargaining likely will exist for many years to come. If the United States decided to move away from plea bargaining, the government would have to either not prosecute a large number of offenses or substantially increase the number of investigators, judges, and prosecutors, and defense attorneys. There simply wouldn't be enough to try every single case that is charged right now federally and in the state system. So in the federal system, over 90 percent of criminal cases are resolved through a guilty plea. Very few federal cases go to trial. Very few criminal cases in the federal system result in a trial. Those who argue that we should not have plea bargaining sometimes forget that you have two rational entities on both sides of the plea bargain. You have criminal defendants who, for whatever reason, have determined that a plea bargain is in their best interest in that particular case. And you have a rational actor on behalf of the government determining that under the circumstances, the plea agreement entered is a sound agreement from the government's perspective as well. So, when you have rational actors on both sides determining that a plea agreement should be consummated, that should tell you that there is some advantage, obviously, to both sides. Many Americans see the criminal system as portrayed in the movies and TV, and they think that's all there is to law. Many Americans seem to be unaware of the civil system, which is a substantial part of at least the federal docket. In the criminal system, there are different procedures than there are in the civil system. The criminal system, usually because of the subject matter, Makes for more dramatic stories and therefore many people see them on the news on criminal television shows and movies that feature criminal activity. But the civil law system is an important part of our American system. It allows people to settle their disputes without having fights. Prior to individuals being able to vindicate their rights in courts, there literally would be feuds between families and others, and people would, for lack of a better term, take the law into their own hands to ensure that their rights were vindicated. So the civil law system, in conjunction with the criminal law system, ensures that society affords people a means to vindicate their rights without them having to take the law into their own hands, without individuals having to arm themselves. And, frankly, have little wars that have the ability to disrupt society. The criminal and civil law systems complement each other, each has a different purpose and function, although sometimes the nomenclature is similar for both of them. So, for example, if a person batters another individual, that person can be charged with battery in the criminal system. The victim of the battery also can sue the individual for battery in the civil system. The remedies that they obtain are different. The person prosecuted in the criminal system can be imprisoned for the battery. They also might be fined, and the court can require them to pay restitution. When a defendant who has battered someone has funds that can be recovered, the victim of a battery typically would sue that individual to recover the damages that were inflicted on the victim. The civil law system affords the victim the possibility of recovering damages for suffering, pain and bodily injury that a victim incurred in a battery. So, the breadth of civil law in the United States is substantial. There are a number of topics that civil law addresses, specifically torts, contracts, wills, trusts, estates, real property. Antitrust can be both civil or criminal. Immigration law can be both civil or criminal. , so there are points where the civil law and the criminal law can coalesce. They can overlap. FOR CIVIL LAW ATTORNEYS It's extremely rewarding to know every day that one is helping the people of the United States to preserve and protect our Constitution, and to ensure the national security of the United States and its people. Criminal justice is about people. About defendants, about victims, about investigators, judges, prosecutors, jurors. It's very people based. And criminal justice is about serving the American people, about ensuring that the United States is protected from enemies, both foreign and domestic, to ensure that the United States people have a safe environment in which to live, to raise their children, and to grow old.