Chapter 8 – Pretrial Procedures, Plea Bargaining, and the Criminal Trial

Chapter 9 – Punishment & Sentencing

Chapter 8 & 9

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Check your personal bias (group, religious, lifestyle, status, etc.) at the door;

No cell phones or texting; No audio recording or videotaping without prior permission; Wait to be recognized before speaking; Monitor your air-time. Let at least two others speak before

you speak again. Listen attentively when others are speaking; Be civil in disagreeing with the views of others: Challenge

the idea and not the person; and Be willing to listen to both sides of an issue.

Rules of Engagement

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Understand the pretrial process in criminal cases

Recognize how the bail system operates

Understand the context of pretrial detention

Recognize how and why plea bargaining occurs

Know why cases go to trial and how juries are chosen

Identify the stages of a criminal trial

Understand the basis for an appeal of a conviction

Learning Objectives

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At each stage of the pretrial process, key decisions are made that move some defendants to the next stage of the process and filter others out of the system

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The court appearance of an accused person in which the charges are read and the accused, advised by a lawyer, pleads guilty or not guilty

Often arraignment is the first formal meeting between the prosecutor and the defendant’s attorney

Arraignment is also an opportunity for a prosecutor to test the strength of the case against the defendant

Arraignment

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An application to a court requesting that an order be issued to bring about a specific action

Examples of motions:

◦ Defense may seek an order for the prosecution to share certain evidence

◦ Defense may seek exclusion of evidence based on the claim that it was obtained through improper questioning of the suspect or an improper search

Motion

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An amount of money, specified by a judge, to be paid as a condition of pretrial release to ensure that the accused will appear in court as required

The Eighth Amendment to the U.S. Constitution forbids excessive bail, and state bail laws are usually designed to prevent discrimination in setting bail. They do not guarantee, however, that all defendants will have a realistic chance of being released before trial

Bail: Pre-Trial Release

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According to a study of felony defendants in the nation’s most populous counties, 62 percent were released before disposition of their cases

32 percent were unable to make bail

6 percent were detained without bail

Among those who gained release, 25 percent had bail set at less than $5,000

The reality of bail

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Bail bondsmen are private businesspeople who are paid fees by defendants who lack the money to make bail

They are licensed by the state and can choose their own clients

In exchange for a fee, which may be 5 to 10 percent of the bail amount, the bondsman will put up the money (or property) to gain the defendant’s release

Only two countries in the world use commercial bail bond systems, the United States and the Philippines

Bail Bondsman

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The prosecutor may stress the seriousness of the crime, the defendant’s record, and negative personal characteristics

The defense attorney, if one has been hired or appointed at this point in the process, may stress the defendant’s good job, family responsibilities, and place in the community

Like other aspects of bail, these factors may favor affluent defendants over the poor, the unemployed, and people with unstable families

Yet many of these factors provide no clear information about how dangerous a defendant is or whether he or she will appear in court

The amount of bail may also reflect the defendant’s social class or even racial or ethnic discrimination by criminal justice officials

Setting Bail

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Citation 

Release on recognizance

Percentage bail

Bail Guidelines 

Preventive detention 

Alternatives to the bail system

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A written order or summons, issued by a law enforcement officer, directing an alleged offender to appear in court at a specific time to answer a criminal charge

Citation

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Pretrial release granted, on the defendant’s promise to appear in court, because the judge believes that the defendant’s ties to the community guarantee that he or she will appear

Release on Recognizance

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Defendants may deposit a percentage (usually 10 percent) of the full bail with the court

The full amount of the bail is required if the defendant fails to appear

The percentage of bail is returned after disposition of the case, although the court often retains 1 percent for administrative costs

Percentage bail

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To deal with the problem of unequal treatment, reformers have written guidelines for setting bail. The guidelines specify the standards judges should use in setting bail and also list appropriate amounts

Bail Guidelines

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Holding a defendant for trial, based on a judge’s finding that if the defendant were released on bail, he or she would endanger the safety of any other person and the community or would flee

Preventive detention

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Preventive detention provisions of the Bail Reform Act of 1984 are upheld as a legitimate use of government power designed to prevent people from committing crimes while on bail

The justices said that preventive detention was a legitimate use of government power because it was not designed to punish the accused

Instead, it deals with the problem of people who commit crimes while on bail

U.S. v. Salerno and Cafero

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People  who are not released before trial must remain in jail

Often called the ultimate ghetto, American jails hold almost 750,000 people on any one day

Thus, a “presumed innocent” pretrial detainee might spend weeks in the same confined space with troubled people or sentenced felons

Pretrial detention

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Which is the worst case?

A person under suspicion of involvement in a crime is not detained, and commits a more serious violent crime while out on bail.

A person who is later found innocent is detained and loses his or her family and job.

Pretrial detention scenarios

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Few cases go to trial; instead, a negotiated guilty plea arrived at through the interactions of prosecutors, defense lawyers, and judges determines what will happen to most defendants.

Prosecutors maintain significant control over the outcomes of plea bargains

negotiated guilty pleas became common and was upheld by the Supreme Court in the 1971 case of Santobello v. New York

Plea bargaining

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Plea bargaining has advantages for defendants, prosecutors, defense attorneys, and judges

Defendants can have their cases completed quickly The defendant is likely to receive less than the maximum

punishment that might have been imposed after a trial Prosecutors may gain an easy conviction Private defense attorneys also save the time needed to prepare

for a trial and earn their fee quickly Plea bargaining helps public defenders cope with large caseloads Judges avoid time-consuming trials Plea bargaining benefits all involved

Benefits of plea bargaining

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Plea bargaining between defense counsel and prosecutor is a serious game in which both sides use various strategies and tactics

A tactic that many prosecutors bring to plea-bargaining sessions is the multiple-offense indictment

Defense attorneys may threaten to ask for a jury trial if concessions are not made

Plea bargaining tactics

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Boykin v. Alabama (1969) Defendants must state that they are voluntarily making a plea of guilty before a judge may accept the plea.

North Carolina v. Alford (1970) A plea of guilty by a defendant who maintains his or her innocence may be accepted for the purpose of a lesser sentence.

Ricketts v. Adamson (1987) Defendants must uphold the plea agreement or suffer the consequences.

Bordenkircher v. Hayes (1978) A defendant’s rights were not violated by a prosecutor who warned that refusing to enter a guilty plea would result in a harsher sentence.

Legal Issues in Plea Bargaining

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Some argue that plea bargaining is unfair because defendants give up some of their constitutional rights, especially the right to trial by jury

A second argument stresses sentencing policy and points out that plea bargaining reduces society’s interest in appropriate punishments for crimes

Criticisms of plea bargaining

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Although the right to trial by jury is ingrained in American ideology fewer than 9 percent of felony cases go to trial

Of these, only about half are jury trials, the rest are bench trials, presided over by a judge without a jury

In 2004, trials produced only 3 percent of felony convictions in the nation’s 75 most populous counties

Trial: The Exceptional Case

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Bench trials -Trials conducted by a judge who acts as fact finder and determines issues of law. No jury participates

Jury - A panel of citizens selected according to law and sworn to determine matters of fact in a criminal case and to deliver a verdict of guilty or not guilty.

Trial: The Exceptional Case

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1. Prevent government oppression by safeguarding citizens against arbitrary law enforcement

2. Determine whether the accused is guilty on the basis of the evidence presented

3. Represent diverse community interests so that no one set of values or biases dominates decision making

4. Serve as a buffer between the accused and the accuser

5. Promote knowledge about the criminal justice system by learning about it through the jury duty process

6. Symbolize the rule of law and the community foundation that supports the criminal justice system

Jury functions in Criminal Justice System

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(1) selection of the jury(2) opening statements by prosecution and defense(3) presentation of the prosecution’s evidence and

witnesses(4) presentation of the defense’s evidence and

witnesses(5) presentation of rebuttal witnesses(6) closing arguments by each side(7) instruction of the jury by the judge(8) decision by the jury

8-Step Trial Process

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Questioning of prospective jurors to screen out people the attorneys think might be biased or otherwise incapable of delivering a fair verdict.

Voir Dire

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Challenge for cause Removal of a prospective juror by showing that he or she has some bias or some other legal disability. The number of such challenges available to attorneys is unlimited

Peremptory challenge Removal of a prospective juror without giving any reason. Attorneys are allowed a limited number of such challenges

Voir Dire

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Are peremptory challenges a good idea in jury selection?

Question

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The defendant, a married, twenty-six-year-old white male, is charged with sexually assaulting a single, twenty-one-year-old white female co-worker in his car when giving her a ride home from an office party at which both of them drank several beers.

Jury Selection

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Real evidence - Physical evidence—such as a weapons, records, fingerprints, and stolen property—involved in the crime.

Demonstrative evidence - Evidence that is not based on witness testimony but that demonstrates information relevant to the crime, such as maps, X-rays, and photographs; includes real evidence involved in the crime.

Testimony - Oral evidence provided by a legally competent witness.

Direct evidence - Eyewitness accounts. Circumstantial evidence - Evidence provided by a

witness from which a jury must infer a fact

Presentation of Prosecution’s Evidence

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The defense is not required to answer the case presented by the prosecution.

As it is the state’s responsibility to prove the case beyond a reasonable doubt

(1) contrary evidence is introduced to rebut or cast doubt on the state’s case(2) an alibi is offered(3) an affirmative defense is presented

Presentation of Defense’s Case

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When the defense’s case is complete, the prosecution may present witnesses whose testimony is designed to discredit or counteract testimony presented on behalf of the defendant

If the prosecution brings rebuttal witnesses, the defense has the opportunity to question them and to present new witnesses in rebuttal.

Rebuttal Witnesses

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When each side has completed its presentation of the evidence, the prosecution and defense make closing arguments to the jury

The attorneys review the evidence of the case for the jury, presenting interpretations of the evidence that favor their own side

Each side may remind the jury of its duty to evaluate the evidence impartially and not to be swayed by emotion

Closing Arguments

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The standard used by a jury to decide if the prosecution has provided enough evidence for conviction

Reasonable Doubt

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A request to a higher court that it review actions taken in a trial court

Appeals are based on questions of procedure, not on issues of the defendant’s guilt or innocence

The appellate court will not normally second-guess a jury

Instead it will check to make sure that the trial followed proper procedures

Appeal

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A writ or judicial order requesting the release of a person being detained in a jail, prison, or mental hospital. If a judge finds the person is being held improperly, the writ may be granted and the person released

Habeas Corpus

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Understand the pretrial process in criminal cases Recognize how the bail system operates Understand the context of pretrial detention Recognize how and why plea bargaining occurs Know why cases go to trial and how juries are

chosen Identify the stages of a criminal trial Understand the basis for an appeal of a

conviction

Chapter Summary

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Punishment & Sentencing

Chapter 9

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Recognize the goals of punishment Identify the types of sentences judges can

impose Understand what really happens in sentencing Analyze whether the system treats wrongdoers

equally

Learning Objectives

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Retribution

Deterrence

Incapacitation

Rehabilitation

Goals of Punishment

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Punishment inflicted on a person who has infringed on the rights of others and so deserves to be penalized.

This approach rests on the philosophical view that punishment is a moral response to harm inflicted on society

Retribution

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There are two types of deterrence: General deterrence - Punishment of criminals that

is intended to be an example to the general public and to discourage the commission of offenses.

Specific deterrence - Punishment inflicted on criminals to discourage them from committing future crimes.

Deterrence

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Depriving an offender of the ability to commit crimes against society, usually by detaining the offender in prison.

Selective Incapacitation - Making the best use of expensive and limited prison space by targeting for incarceration those individuals whose incapacity will do the most to reduce crime in society.

Incapacitation

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The goal of restoring a convicted offender to a constructive place in society through some form of vocational or educational training or therapy.

Rehabilitation

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Punishment designed to repair the damage done to the victim and community by an offender’s criminal act

A three-way approach that involves the offender, the victim, and the community

This approach may include mediation in which the three actors devise ways that all agree are fair and just for the offender to repair the harm done to victim and community

Restorative Justice

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Incarceration, intermediate sanctions, probation, and death are the basic ways that the criminal sanction, or punishment, is applied

The United States does not have a single, uniform set of sentencing laws

The criminal codes of each of the states and of the federal government specify the punishments

Judges often receive wide discretion in determining the appropriate sentence

Forms of criminal sanctions

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Imprisonment is the most visible penalty imposed by U.S. courts

Although less than 30 percent of people under correctional supervision are in prisons and jails, incarceration remains the standard for punishing those who commit serious crimes

Three basic sentencing structures are used:

◦ Indeterminate sentences (36 states)◦ Determinate sentences (14 states)◦ Mandatory sentences (all states)

Incarceration

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A period, set by a judge, that specifies a minimum and a maximum time to be served in prison. Sometime after the minimum, the offender may be eligible for parole.

Because it is based on the idea that the time necessary for treatment cannot be set, the indeterminate sentence is closely associated with rehabilitation.

Indeterminate Sentencing

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A sentence that fixes the term of imprisonment at a specific period

Some determinate-sentencing states have adopted penal codes that stipulate a specific term for each crime category

Others allow the judge to choose a range of time to be served

Determinate Sentencing

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A sentence for which the legislature or a commission sets a minimum and maximum range of months or years

Judges are to fix the length of the sentence within that range, allowing for special circumstances

Only in special circumstances should judges deviate from the presumptive sentence

Presumptive Sentence

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A sentence determined by statutes and requiring that a certain penalty be imposed and carried out for convicted offenders who meet certain criteria

The judge may not consider the circumstances of the offense or the background of the offender

The judge may not impose non-incarcerative sentences

Mandatory Sentence

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Common Belief: Long, mandatory sentences will deter people from committing crimes because they will stop themselves from causing harm to society out of fear of the severe punishments that await them.

Myth & Reality

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Potential offenders must think rationally and weigh the costs and benefits of crimes before committing criminal acts; and

Potential offenders must fear that possibility that they will be caught.

In fact, many offenders do not think rationally

Effective Deterrence requires two critical elements

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Adopted by 26 states and the federal government

These laws require that judges sentence offenders with three felony convictions (in some states two or four convictions) to long prison terms, sometimes to life without parole

In some states, these laws have inadvertently clogged the courts, lowered the rates of plea bargaining, and caused desperate offenders to violently resist arrest

“Three strikes laws”

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Regardless of the prison sentence imposed it may bear little resemblance to the actual amount of time served

In reality, parole boards in indeterminate-sentencing states have broad discretion in release decisions once the offender has served a minimum portion of the sentence

Offenders can have their prison sentence reduced by earning “good time” for good behavior, at the discretion of the prison administrator.

The Sentence versus the Actual Time Served

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A reduction of an inmate’s prison sentence, at the discretion of the prison administrator, for good behavior or participation in vocational, educational, or treatment programs.

Prosecutors and defense attorneys take good time into consideration during plea bargaining by calculating the actual amount of time a particular offender will likely serve

The amount of good time one can earn varies among the states, usually from 5 to 10 days a month

Good Time

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Laws that require offenders to serve a substantial proportion (usually 85 percent for violent crimes) of their prison sentence before being released on parole

Has become such a politically attractive idea that the federal government has allocated almost $10 billion for prison construction to those states adopting truth-in-sentencing

Critics maintain that truth-in-sentencing will increase prison populations at a tremendous cost

“Truth-in-Sentencing”

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Punishments that are less severe and costly than prison but more restrictive than traditional probation

Intermediate sanctions provide a variety of restrictions on freedom

Intermediate Sanctions

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Fines Home confinement Intensive probation supervision Restitution to victims Community service Boot camp Forfeiture of possessions or stolen property

Examples of Intermediate Sanctions

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A sentence that the offender is allowed to serve under supervision in the community

The most frequently applied criminal sanction

Nearly 60 percent of adults under correctional supervision are on probation

Conditions are imposed specifying how an offender will behave through the length of the sentence

Probation is not extended as a right to the offender

Probation

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A sentence in which the offender is released after a short incarceration and re-sentenced toprobation

Shock Probation

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The U.S. Supreme Court decided that capital punishment does not violate the Eighth Amendment’s prohibition of cruel and unusual punishments

The  numbers of people facing the death penalty has increased dramatically  

Although about 200 people are sent to death row each year, since 1977 the annual number of executions has never exceeded 98

Death Penalty

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Death differs from other punishments in that it is final and irreversible

Because life is in the balance, capital cases must be conducted according to higher standards of fairness and more-careful procedures than are other kinds of cases

Several important Supreme Court cases illustrate this concern

The Death Penalty and the Constitution

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Furman v. Georgia (1972) - The death penalty, as administered, constitutes cruel and unusual punishment.

Gregg v. Georgia (1976) - Judge and jury must consider certain mitigating and aggravating circumstances and proceedings must also be divided into a trial phase and a punishment phase.

McCleskey v. Kemp (1987) - The Supreme Court rejects a challenge of Georgia’s death penalty on grounds of racial discrimination.

The Death Penalty and the Constitution, con’t.

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Atkins v. Virginia (2002) - Execution of the mentally retarded is unconstitutional.

Roper v. Simmons (2005) - Execution of offenders for crimes committed while under the age of 18 is unconstitutional.

The Death Penalty and the Constitution, con’t.

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Execution of the mentally ill

Effective counsel

Death-qualified juries

Appeals

International law

Continuing legal issues

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The death penalty deters criminals from committing violent acts.

The death penalty achieves justice by paying killers back for their horrible crimes.

The death penalty prevents criminals from doing further harm while on parole.

The death penalty is less expensive than holding murderers in prison for life.

Arguments in favor of the death penalty

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No hard evidence proves that the death penalty is a deterrent.

It is wrong for a government to participate in the intentional killing of citizens.

The death penalty is applied in a discriminatory fashion.

Innocent people have been sentenced to death.

Some methods of execution are inhumane, causing painful, lingering deaths.

Arguments against the death penalty

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Within the discretion allowed by the code, various elements influence the decisions of judges:

◦ The administrative context of the courts◦ The attitudes and values of judges◦ The presentence report◦ Sentencing guidelines

The Sentencing Process

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A report, prepared by a probation officer, that presents a convicted offender’s background and is used by the judge in selecting an appropriate sentence

Presentence Report

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A mechanism to indicate to judges the expected sanction for certain offenses, in order to reduce disparities in sentencing.

Although guidelines make sentences more uniform, many judges object to having their discretion limited in this manner

Sentencing Guidelines

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Harsh, unjust punishments can occur because of sentencing disparities and wrongful convictions.

Examples of contemporary issues:◦ Racial disparities◦ Wrongful convictions

Who gets the harshest punishments?

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Recognize the goals of punishment

Identify the types of sentences that judges can impose

Understand what really happens in sentencing

Analyze whether the system treats wrongdoers equally

Chapter Summary

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