unit 6: pre-trial procedures
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Unit 6: Pre-Trial Procedures. PS-LCRP-10. Students will explore the roles of each participant in the pretrial process. a.Identify each participant in the process. b.Distinguish between each pretrial stage. c.Identify rationales for how prosecutors choose criminal charges. - PowerPoint PPT PresentationTRANSCRIPT
Unit 6: Pre-Trial Procedures
PS-LCRP-10. Students will explore the roles of each participant in the pretrial process.
a. Identify each participant in the process.b. Distinguish between each pretrial stage. c. Identify rationales for how prosecutors choose criminal charges. d. Determine appropriate constitutional challenges for given pretrial scenarios.e. Debate the plea bargaining process.
EQ: What happens between the time a suspect is arrested and the trial begins? 1
Research
Sources
Position Paper
• 3 benefits• 3 disadvantages• Alternatives
• 1 academic• 2 more solid sources
• Addressed to Governor• Changes needed or
support current system • 3 paragraphs
supporting your opinion
Plea Bargaining Debate Monday
EQ: What happens between the time a suspect is arrested and the trial begins? 2
Prosecutor
Role of the Prosecutor
• Prior to Arrest – often in federal system, and occasionally locally, investigators and prosecutors collaborate–Assist with obtaining warrants–Provide legal advise on how
investigation is conducted EQ: What happens between the time a suspect is arrested and the trial begins? 4
Role of the Prosecutor
• After Arrest - Review police reports to determine:– Evidence available to establish each
element of crime– Violations of Fourth or Fifth Amendment– Credibility of potential witnesses– Likelihood witnesses will be available for
court appearances
EQ: What happens between the time a suspect is arrested and the trial begins? 5
Role of the Prosecutor
• Other factors considered– Attitude of public toward this type of
case– Severity of offense versus other cases
pending– Likelihood of winning the case– Decide how many charges to file
EQ: What happens between the time a suspect is arrested and the trial begins? 6
Decision to Charge
• Prosecutor must consider many factors when deciding what charges to file
Such as:• Evidence to establish each
element of the crime
EQ: What happens between the time a suspect is arrested and the trial begins? 7
Decision to Charge • Are there violations of suspect's
rights that will make some of the evidence inadmissible?
• Are the victim and eye witnesses credible?
• What evidence will be excluded because of the Hearsay Rule? other problems with evidence?
EQ: What happens between the time a suspect is arrested and the trial begins? 8
Decision to Charge
• Jurisdiction of court –Geographical–Subject matter
• Venue• Statute of limitations
EQ: What happens between the time a suspect is arrested and the trial begins? 9
Decision to Charge • Does Double Jeopardy bar filing
any of the charges?• What degree of the crime
should be charged?• If more than one person
committed the crime, should the suspects be charged jointly or separately?
EQ: What happens between the time a suspect is arrested and the trial begins? 10
Decision to Charge
• Will filling additional charges facilitate plea bargaining?
• Should a longer sentence be sought because of the defendant's prior convictions?
EQ: What happens between the time a suspect is arrested and the trial begins? 11
Participants for the State
Witnesses
CID & Investigators
for DA
Prosecutor or DA
Participants for the Defense
Expert Witnesses or Psychologists
Private Investigators
Defense Attorney or
Public Defender
Participants for the Court
Clerk & Court
Reporter
BailiffJudge
Pretrial Stages
ArraignmentArraignment is normally the first
court appearance after the charges are filed
EQ: What happens between the time a suspect is arrested and the trial begins? 16
ArraignmentProcedures at the arraignment:• Defendant has the right to be
present in person• Defendant will be given a copy
of the complaint• Judge will advise defendant of
right to counsel
EQ: What happens between the time a suspect is arrested and the trial begins? 17
ArraignmentProcedures at the arraignment:• Screening for public defender • Continuance may be granted if
defendant needs time to hire an attorney
EQ: What happens between the time a suspect is arrested and the trial begins? 18
Interview with Client
• Establish Rapport – show interest• Agree on Fee – most upfront!• Advise all rights, warn not to talk• Trust is priority• Treat respectfully – walk in their shoes
– Explain attorney-client privilege • Attempt to accommodate needs• Explain role of attorney and CJS overall
EQ: What happens between the time a suspect is arrested and the trial begins? 19
Interview with Client
• Explain timeline• Get extensive bio – in book• Warn of snitches• Counsel clients emotional needs• Amsterdam Card – rights
EQ: What happens between the time a suspect is arrested and the trial begins? 20
Getting Story Straight
• Start by letting them tell whole story• Try to use clients perspective• Get details and clear up timeline• TAKE NOTES!• Reiterate the Attorney-Client
Privilege• Avoid Cross-Exam. - unless blatant
liesEQ: What happens between the time a suspect is arrested and the trial begins? 21
Post-Arraignment Actions
• Get client’s story• Establish decision-making authority• Arrange Translator – non family, no
ties to government
EQ: What happens between the time a suspect is arrested and the trial begins? 22
Probable Cause Hearing Purpose• Probable cause hearing is
conducted to determine whether there is probable cause to hold the suspect in custody pending trial
• Hearing must be held within 48 hours of arrest except in an emergency such as a natural disaster which closes the courts.
EQ: What happens between the time a suspect is arrested and the trial begins? 23
Probable Cause Hearing
• Sworn testimony is presented (witnesses, affidavits or police reports signed under oath) to establish probable cause to detain defendant.
EQ: What happens between the time a suspect is arrested and the trial begins? 24
Probable Cause Hearing • If judge determines that there is
probable cause the defendant may be held in custody pending trial.
• The defendant must be released if the judge does not find probable cause has been established.
EQ: What happens between the time a suspect is arrested and the trial begins? 25
Preliminary Hearing Purpose• Judge hears testimony in open court
to determine if a prima facie case has been established for each felony charged
• Preliminary hearing is usually held within two weeks after arraignment unless defense agrees to continuance
EQ: What happens between the time a suspect is arrested and the trial begins? 26
Preliminary Hearing What Prosecutor Does1. Presents evidence to establish
prima facie case for each element of every felony in the complaint
2. Calls witnesses and conducts direct examination
3. Cross examines witnesses called by defense
EQ: What happens between the time a suspect is arrested and the trial begins? 27
Grand Jury • Fifth Amendment right to indictment by
grand jury in cases involving capital offenses and infamous crimes– Only applies to criminal trials in
federal courts• Indictment is not required for cases
involving only misdemeanors• States are free to enact laws
authorizing use of preliminary hearing instead of indictment
EQ: What happens between the time a suspect is arrested and the trial begins? 28
Grand Jury • Prosecutor who takes case to
grand jury seeks an Indictment. • Grand jury investigates case on its
own and returns a Presentment. • Grand juries may also hear a case
at the direction of a judge.
EQ: What happens between the time a suspect is arrested and the trial begins? 29
Grand Jury • Pool from which grand jurors are
drawn are usually same as trial jury
• Grand jurors usually serve a fixed term
• Grand jury is usually larger than trial jury; historically it had 23 members
EQ: What happens between the time a suspect is arrested and the trial begins? 30
Grand Jury • Not all members are required to be
present when every case is presented
• State law sets number of votes required to return indictment
• TRUE BILL - sufficient evidence to merit prosecution
• NO BILL - charges rejected and may be filed again
EQ: What happens between the time a suspect is arrested and the trial begins? 31
Pre-Trial Release
Bail • Not granted in capital cases• Traditionally granted if
defendant is considered likely to appear in court as scheduled
EQ: What happens between the time a suspect is arrested and the trial begins? 32
Pre-Trial Release
EQ: What happens between the time a suspect is arrested and the trial begins? 33
1• Cash bail
2• Non-cash bail
3• Bail bond
4• Personal bond
5• Own Recognizance Release
6• Electronic Monitoring
7• House Arrest
Diversion • Programs divert defendants
from the criminal justice system• Most diversion programs are
designed for first offenders• Diversion usually focuses on
counseling programs• Program are designed for
specific types of offenders EQ: What happens between the time a suspect is arrested and the trial begins? 34
Diversion • Attending counseling sessions is
mandatory• Completion of diversion program
usually entitles defendant to dismissal of the charges and/or expunging arrest record
• Prosecutor may take case to trial if court rules defendant failed the diversion program
EQ: What happens between the time a suspect is arrested and the trial begins? 35
Pre-Stages Review
1st AppearancePreliminary Hearing OR Grand Jury
Diversion? Alternate
Court?
Arraignment Discovery Pre-Trial Motions
Prosecution Case Evaluation
Strengths/WeaknessPlea Bargain
(possible at each stage)Pre-Trial
Conference
Potential Challenges
Pretrial Stages
Double Jeopardy
• Needs official court records indicating defendant has prior conviction or acquittal on crime charged or greater/lesser included offense.
EQ: What happens between the time a suspect is arrested and the trial begins? 38
Lack of Subject Matter Jurisdiction
• Must show state law indicating the court where the pleadings were filed does not have authority to handle this type of case.
EQ: What happens between the time a suspect is arrested and the trial begins? 39
Statute of Limitations
Compare date complaint states crime occurred with date charges were filed to determine if statute of limitations for specific crimes expired before case was filed.
EQ: What happens between the time a suspect is arrested and the trial begins? 40
Lack of Speedy Trial • Must show delay after indictment or
filing charges was detrimental to defendant's case.
Factors considered: • length of delay• defendant has asserted right to speedy
trial• no valid reason for delay• defendant's case was prejudiced by
delay EQ: What happens between the time a suspect is arrested and the trial begins? 41
Failure to State a Cause of Action
• Challenges wording of pleadings: claims no crime was committed even if defendant committed the acts alleged.
EQ: What happens between the time a suspect is arrested and the trial begins? 42
Challenges to Evidence by Defense
EQ: What happens between the time a suspect is arrested and the trial begins? 43
Exclusionary Rule and Fruit of the Poison Tree Doctrine
• Evidence derived from illegally obtained evidence is not admissible at trial
• Time and intervening circumstances may result in the taint of the initial illegal act being removed.
EQ: What happens between the time a suspect is arrested and the trial begins? 44
Exceptions to the Exclusionary Rule
• “Good faith” exception• Inevitable Discovery• Independent Source• “Public Safety” exception
EQ: What happens between the time a suspect is arrested and the trial begins? 45
Challenge to Validity of WarrantFalse information used to obtain warrantEvidence Considered: Whether officers
knowingly included lies in the affidavit used to obtain a warrant. Reckless disregard for the truth is treated the same as knowingly including lies.
Legal Issue: Do the facts that remain, after excluding items officers knew or should have known were untrue, establish probable cause?
EQ: What happens between the time a suspect is arrested and the trial begins? 46
Challenge to Validity of WarrantSearch warrant executed in inappropriate
mannerEvidence Considered: Compare search that
was authorized in the warrant and the search actually conducted. Also consider: had warrant expired? are there other grounds, such as Plain View Doctrine, for the officer's actions?
Legal Issue: Did officers restrict search to places authorized in the warrant and items the warrant stated they could seize? Is the seizure justified on other legal grounds?
EQ: What happens between the time a suspect is arrested and the trial begins? 47
Other Evidence Challenges
Searches: Evidence Considered: What the
officers did and why the officers conduct the search.
Legal Issue: Is there an exception to the Fourth Amendment which justifies the officer's actions? Prosecution bears burden of proof.
EQ: What happens between the time a suspect is arrested and the trial begins? 48
Other Evidence Challenges
Arrest:Evidence Considered: All facts
available to officer at time arrest was made.
Legal Issue: Did the officer have probable cause to make the arrest? Was an arrest warrant required?
EQ: What happens between the time a suspect is arrested and the trial begins? 49
Other Evidence Challenges
Confessions:Evidence Considered: All facts
surrounding the interrogation.Legal Issues: Were Miranda
warnings required? Were Miranda warnings given correctly? Did suspect waive Miranda rights?
EQ: What happens between the time a suspect is arrested and the trial begins? 50
Discovery
Defendant's Right to Discovery
• Brady material: Due Process mandates that the prosecution must disclose evidence that might be used to exonerate the defendant.
• Prosecutor is assumed to know everything that the police have in their files
EQ: What happens between the time a suspect is arrested and the trial begins? 52
Defendant's Right to Discovery
Local rules may give defense the right to pre-trial notice:
• Witnesses prosecution plans to call • Statements prosecution witnesses
have made to the police or prosecutor • Copies of statements that defendant
made to the police
EQ: What happens between the time a suspect is arrested and the trial begins? 53
Prosecution's Right to Discovery
Fifth Amendment privilege against self-incrimination bars prosecution from obtaining incriminating statements by defendant that defense has on file
EQ: What happens between the time a suspect is arrested and the trial begins? 54
Prosecution's Right to Discovery
Local rules may give prosecution the right to pre-trial notice:
• Defendant intends to claim alibi• Names of witnesses defense intends to call• Statements defense witnesses, except
defendant, have made• Items of physical evidence defense plans to
introduce and lab tests performed on the items
EQ: What happens between the time a suspect is arrested and the trial begins? 55
Pre-Trial Conference
Pre-Trial Conference
Conference between judge and all attorneys in case frequently held in judge's chambers usually held a few days before the trial is scheduled to begin
Topics Consdiered:
EQ: What happens between the time a suspect is arrested and the trial begins? 57
Pre-Trial Conference • Is there a plea bargain agreement?• How long is the trial expected to last?• Is any special equipment needed?• Is an interpreter needed?• Will there be a jury?
EQ: What happens between the time a suspect is arrested and the trial begins? 58
Pre-Trial Conference
• How many prospective jurors are needed?
• Will questionnaires be used to screen potential jurors?
• Will the jury be sequestered?
EQ: What happens between the time a suspect is arrested and the trial begins? 59
Pre-Trial Conference • Will the jury be transported to crime
scene for a view?• How many alternate jurors will be
needed?• Do special accommodations need to
be made for media coverage of the case?
EQ: What happens between the time a suspect is arrested and the trial begins? 60
Unit 6: Pre-Trial Procedures
PS-LCRP-10. Students will explore the roles of each participant in the pretrial process.
a. Identify each participant in the process.b. Distinguish between each pretrial stage. c. Identify rationales for how prosecutors choose criminal charges. d. Determine appropriate constitutional challenges for given pretrial scenarios.e. Debate the plea bargaining process.
EQ: What happens between the time a suspect is arrested and the trial begins? 61