Chapter 8Pretrial and Trial Procedures

Learning Objectives

Summarize the bail process

Discuss the main issues associated with bail

Differentiate the 2 main mechanisms for charging defendants (grand jury indictment or prosecutor’s information)

Summarize the pleas available to a criminal defendant

Explain the issues involved in plea bargaining

Learning objectives

Describe the plea bargaining process

Explain the purpose of pretrial diversion

Describe the goals and purpose of the trial process

Explain the legal rights of the accused at trial

Summarize the trial process

Pretrial Procedures

Important components of the justice process

Vast majority of cases are resolved informally at this stage and never come before the courts

Bail

Defined:

Security provided to the court that the defendant will appear at every stage in the CJ process

Failure to appear results in forfeiture of bail is forfeited and confinement in jail until court appearance

Right to Bail:

Eighth Amendment does not guarantee bail, but prohibits excessive bail

Stack v Boyle - bail is excessive when it exceeds an amount reasonably calculated to ensure the defendant’s appearance at trial

Bail

Bail Release Mechanisms: Issues to be considered for bail eligibility:

Crime type Flight risk Dangerousness of defendant

Bail Release Mechanisms: Police field citation release Police station house citation release Police/pretrial jail citation release Direct release programs Police/court bail schedule

Bail

2/3 of all felony defendants were released on bail

1/ 2 of all violent criminals were released on bail

8% of suspected murderers released on bail

42% robbery suspects released on bail

44% motor vehicle theft release rate

49% burglary release rate

55% rape suspect release rate

Six Types of Bail

Bail

Bail Issues: Determining whether or not the defendant will

appear for trial

Discriminatory against the poor

Costly for government

Unfair – higher proportion of detainees receive longer sentences than people on bail

Dehumanizing

The decision to bail may be racially or ethnically biased

Bail

Bail Issues:

Bondsmen and County Hunters

Employed by bonding agencies to find and return bail jumpers

Have legal powers to arrest and detain which vary from state to state

Bail

Bail Reform:

Factors such as conviction and sentence disparities have given rise to bail reform movement

Manhattan Bail Project (1961)

Federal Bail Reform Act of 1966

Bail Reform Act of 1984

Bail

Preventive Detention:

Certain defendants can be confined before trial without the possibility of bail

Preventive detention is ordered if judges determine that no condition or combination of conditions will reasonably assure the appearance of the person and the safety of any other person or community

Bail

Pretrial Services:

Provide information for judges to make release decisions

Assess likelihood of defendant failing to appear or being rearrested

Monitor conditions of release or provide intensive supervision

Provide special services for mentally ill

Provide intense direct supervision

Charging the Defendant

The Indictment Process and the Grand Jury:

Power to act as independent investigating body

Contains information on findings and recommendation of indictment

Determines if probable cause exists:

Probable cause results in indictment or true bill:

No probable cause, no bill

Charging the Defendant

The Information Process and the Preliminary Hearing:

Open hearing conducted before a judge

Judge decides whether there is sufficient probable cause to believe the defendant committed the alleged crime

Charging the Defendant

Arraignment:

Occurs after the indictment but before trial

Judge informs defendant of charges and availability of counsel

Plea is entered

The Plea:

Guilty

Not guilty

Nolo contendere

Plea Bargaining

Exchange of prosecutorial and judicial concessions for guilty plea

Initial charges may be reduced

Prosecutor may promise to recommend lenient sentence

Prosecutor may alter charge

90% of criminal convictions are a result of negotiated guilty pleas

Plea Bargaining

Proponents argue the benefits:

Costs of prosecution reduced

Administrative efficiency of courts improved

Prosecution can devote more time to more serious cases

Opponents believe:

Dangerous offenders may receive lenient sentences

Prosecutors given free hand to induce or compel defendants to plea bargain

Possible that an innocent person will admit guilt if they believe system is biased and have little chance of acquittal

Plea Bargaining

Legal Issues in Plea Bargaining:

Defendants entitled to effective counsel

Pleas must be voluntary and without pressure

Any promise made by the prosecutor must be kept after defendant admits guilt

Defendants must also keep their side of the bargain to receive the promised offer of leniency

Plea Bargaining

The Role of Defense Counsel:

Advisory role

Ensure defendant understands the process and the guilty plea

Ensure defendant understands alternatives

Communicate all offers to client

The Role of the Judge:

Judges must approve plea agreements

Plea Bargaining

Plea Bargaining Reform:

Safeguards developed to ensure innocent individuals do not plead guilty under coercion

Judicial supervision ensures plea bargaining conducted in a fair manner

Banning plea bargaining

Pretrial Diversion

Diversion programs suspend criminal proceedings so that accused can participate in community treatment programs

Diversion gives the client an opportunity to: Avoid stigma of criminal record

Continue to work and support family

Continue education goals

Access rehabilitation services such as anger management

Make restitution to the victim or payback community

Reduce costs and alleviate prison crowding

The Trial

The Trial

Legal Rights During Trial: Impartial judge

Competent at trial

Confront witnesses

Compulsory process

Impartial jury

Counsel at trial

Speedy trial

Public trial

Convicted by proof beyond a reasonable doubt

The Trial

The Trial

Jury Selection:

The prosecutor and defense attorney can remove prospective jurors (under oath) by challenges known as:

Voir dire

Challenge for cause

Peremptory challenges

The Trial Process

Opening Statements: Prosecutor makes first opening statement, then

defense attorney

Statement provides an overview of the case

No prejudicial remarks, inflammatory statements, or irrelevant facts

Prosecutor’s Case: Present evidence

Call witnesses

Cross examination

Witnesses restricted to factual information

Only expert witnesses can offer opinions

The Trial Process

The Criminal Defense: Defendant under no obligation to present evidence

as burden of proof is on the prosecution

Refutes prosecution’s allegations

After the defense rests prosecution is given the opportunity for rebuttal, followed by the defense’s surrender rebuttal

Closing Arguments: Selectively review facts and evidence

Provides inferences from evidence

Cannot refer to matters not in evidence

The Trial Process

Instructions to the Jury:

Judge will instruct, or charge the jury members on the principles of law that ought to guide and control their decision on the defendant’s innocence or guilt

Deliberation and Verdict:

Guilty, innocent, hung jury, jury nullification

The Trial

The Sentence:

Usually by the trial judge but in some jurisdictions jury may impose or make recommendation

Judge considers information in pre-sentence investigation report (PSI)

Different sanctions include:

Fines

Probation

Imprisonment

The Trial

The Appeal:

Once a defendant has been found guilty, they may petition an appellate court to review the procedures used during the trial

Defendants may have two main avenues to challenge such procedures:

① Appeals

② Habeas corpus