Chapter 9 Pretrial Procedures

1. Chapter 9Pretrial Procedures

2. Pretrial Services • Pretrial procedures are important because majority of criminal cases are resolved informally • Charges can be dropped or dismissed • Plea bargain can be made • Competency hearings

3. Bail • Bail: money or some other security provided to the court to ensure the appearance of the defendant at every stage in the criminal justice process. • Purpose: obtain release from custody • If defendant fails to appear, bail is forfeited and person is confined in jail until court appearance

4. Bail (cont.) • Current data indicate about 2/3rds of those arrested made bail • 1/3rd are held in custody • 7% denied bail • Murder defendants least likely to get bail • 1/3 of those released were rearrested

5. Bail (cont.) • Purpose is to ensure appearance at trial, not punish • Cannot be arbitrarily denied or revoked • Critics argue is discriminatory/objectionable • Works against poor • State pays to incarcerate people who would otherwise remain in community • Detainees receive longer sentences than those on bail • Dehumanizing • Racial/ethnic disparity

6. Bail (cont.) • Pretrial Services • Created in 1960’s to improve release and detention decisions • 1980’s began to focus on identifying those who were unable to make bail but would be acceptable risks for release • Today virtually all larger jurisdictions have pretrial release in one form or another

7. Bail (cont.) • Pretrial Services Programs/Responsibilities • Provide information for judges to make release decisions • Assess likelihood of defendant failing to appear or being rearrested • Monitoring conditions of release or provide intensive supervision • Provide special services for those with mental illness

8. Bail (cont.) • The Legal Right to Bail • 8th Amendment prohibits excessive bail, it does not guarantee a right to bail. • Stack v. Boyle - If a crime is bailable, the amount set should not be frivolous, unusual or beyond a persons’ ability to pay under similar circumstances. • Those unable to post bail are held in pretrial detention until trial.

9. Bail (cont.) • Release on recognizance (ROR) • Pioneered by the Vera Institute of Justice, Manhattan Bail Project in 1961 • concluded that release based on verified information was more effective than money bail • Federal Bail Reform Act of 1966 • First change in federal bail laws since 1789 • release should be under the least restrictive method necessary

10. Bail (cont.) • Federal Bail Reform Act of 1984 – mandated no defendant shall be kept in pretrial detention simply because they cannot afford money bail • Community safety and risk of flight be considered – allows for preventive detention • Critics of bail reform argue emphasis should be placed on controlling the behavior of serious criminals

11. Preventive Detention • Defendants are held in jail based on the belief that they will commit new crimes while on release. • Allows for detention without conviction for the protection of the defendant and that of the community. • Critics believe it is punishment prior to conviction.

12. Preventive Detention (cont.) • Some state jurisdictions have incorporated element of preventive detention into bail systems • Exclusion of certain crimes from bail eligibility • Definition of bail to include appearance in court and community safety • Limitations on right to bail for those previously convicted

13. Preventive Detention (cont.) • Schall v. Martin • Preventive detention of juveniles is constitutional because it is useful to protect the welfare of the minor and society as a whole. • United States v. Salerno • Upheld 1984 Bail Reform Act’s preventive detention provisions • Preventive detention act had a legitimate and compelling regulatory purpose which does not violate the due process clause. • Society’s need for protection outweighs and individual’s liberty interest.

14. Pretrial Detention • Those unable or ineligible for bail are subject to pretrial detention. • Pretrial Custody accounts for more incarceration than imprisonment after sentencing. • Jails considered the weakest link in the criminal justice process.

15. Pretrial Detention (cont.) • Effects of Detention • More likely to be convicted • Receive longer sentence than those released on bail. • Less attractive plea bargains

16. Charging the Defendant • Grand Jury • Traced to English common law • Fifth Amendment • Power to act as independent investigating body • Presentment • True bill • No bill

17. Charging the Defendant (cont.) • Grand Jury (cont.) • Controlled by the prosecutor • Closed and secret deliberations • Neither accused or public allowed to attend • A rubber stamp for the prosecutor • Prosecutor need not reveal evidence that might exonerate the accused

18. Charging the Defendant (cont.) • Preliminary Hearing • Used in about half the states as an alternative to the grand jury to determine probable cause • Open hearing conducted before a judge • Rules of evidence apply • Judge makes decision on whether to bind over for trial • Defendant may waive the hearing

19. Charging the Defendant (cont.) • Arraignment • Occurs after the indictment or preliminary hearing • Filed in the court with jurisdiction to try the facts of the case • Defendant informed of charges and has counsel appointed if necessary • Defendant enters a plea • Guilty plea results in date being set for sentencing • If pleading not guilty a date is set for trial

20. Charging the Defendant (cont.) • Types of Pleas • Not Guilty: verbally stated by defendant or entered by court if defendant refuses to answer • Nolo Contendere: (no contest) defendant does not admit guilt but agrees to accept punishment • Guilty: defendant admits criminality

21. Plea-Bargaining • Most common practice in the criminal justice system • Concessions of Plea Bargaining • Reduction of initial charges • Reduction of the number of charges • Recommendation for a lighter sentence than probable • To alter the charges • To help move the case to a more lenient judge

22. Plea-Bargaining (cont.) • Benefits • Costs of prosecution reduced • Efficiency of courts improved • Defendant avoids lengthy pretrial incarceration and may receive a reduced sentence • Resources devoted to cases that need greater attention • Prosecution devotes more time to serious cases

23. Plea-Bargaining (cont.) • Opposition • Encourages defendants to waive their constitutional right to a trial • Dangerous offenders may receive lenient sentences • Innocent people may plead guilty if they believe the sentence is biased and they have little chance of acquittal or to avoid the possibility of harsh punishments • Prosecutors may induce or compel defendants to plead guilty • A “guilty plea culture” develops among defense attorneys.

24. Plea-Bargaining (cont.) • Legal Issues • Defendants are entitle to effective assistance of counsel. • Plea must be made voluntarily and without pressure. • Innocent persons can plead guilty to gain a lenient sentence • Both the prosecutor and defendant must honor any promise made • Prosecutors may threaten to indict defendants on more serious charges if they do not plead guilty • Statements made during negotiations may be used against defendant

25. Plea-Bargaining (cont.) • Factors Affecting the Prosecutor’s Decision • Nature of the offense • Defendant’s prior record and age • The type, strength and admissibility of evidence in the case • Attitude of the victim • Intangible factors

26. Plea-Bargaining (cont.) • Defense Attorney’s Role • Advisory role • Ensure the defendant understands the nature of the plea bargaining process and the guilty plea • Make sure defendant understands the alternatives available to them • Must communicate all plea-bargain offers to client

27. Plea Bargaining (cont.) • Judicial participation in plea negotiations • Creates impression on defendant that he/she could not receive a fair trial • Lessens the ability of the judge to make an objective determination of the voluntariness of the plea • Is inconsistent with the theory behind the use of presentence investigation reports • May induce an innocent defendant to plead guilty because he is afraid to reject the disposition desired by the judge

28. Plea-Bargaining (cont.) • Victim’s Role • Some argue process is too “victim driven” • Other argue the victims are relegated to a secondary role with no influence • Victims do not have a right to veto a plea bargain • Most agree prosecutor should confer with the victim

29. Plea-Bargaining (cont.) • Suggestions for Reform • Oversight of negotiations • Guidelines to identify suitable types of cases and offenders • Review of prosecutor’s decisions • Written documentation of need and acceptability for a plea bargain in any given case

30. Pretrial Diversion • Designed to remove case from formal criminal justice process • Avoids stigma of conviction • Reduces costs to the system • Alleviates jail and prison overcrowding • Danger of “net-widening” • Research indicates programs may result in reduced recidivism for some offenders