Importance of Pretrial Procedures

1. Importance of Pretrial Procedures Pretrial procedures are important components of the justice process because the great majority of all criminal cases are resolved informally at this stage and never come before the courts.

2. Pretrial Processes • Arrest • Booking • Initial Appearance • Grand Jury / Preliminary hearing - indictment - information • Arraignment • Pretrial Motions

3. Bail and Pretrial Release • Definition • Reality of Bail System • Bail Bondsperson • Setting Bail • Reforming Bail • Issues Preventive Detention

4. Bail and Equity Issues

5. Preventive Detention 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/or the community or would flee

6. Preventative Detention:The Controversy FORAGAINST • Based on the notion that certain offenders will commit crime while on release • Society has the right to be protected from future criminal acts • It is a form of punishment which is not based on a guilty verdict and is based on something that MIGHT happen

7. United States v. Salerno (1987) • The Supreme Court held that the preventive detention act had a legitimate and compelling regulatory purpose and did not violate the due process clause. • Preventative detention was not designed as a punishment, but to prevent danger to the community which is a legitimate societal goal.

8. Plea Bargaining and Trials PleasTrials • Case disposition • Relationships involved • Legal issues • Pros and Cons • Reform • Case disposition • Juries • Trial process • Evaluating the jury system • Appeals

9. Plea Bargaining 90% of all convictions

10. Plea Bargaining • Defined:a defendant’s agreement to plead guilty with the reasonable expectation of receiving some consideration from the state for doing so • Blackledge v. Allison (1976) –Supreme Court acknowledges mutual advantage Trial or Plea – which is best bet for a given defendant?

11. Relationships in Plea Bargaining • Players involved • Incentives involved • Tactics • Remember Going Rate • Implicit vs. Explicit Plea Bargaining • Slow Plea – more likely as time goes on Strength of each side’s case: bluff or real deal?

12. Legal Issues in Plea Bargaining • Voluntary – Boykin v. Alabama (1969) • Prosecutors – Santobello v. New York (1971) • Defendants – Ricketts v. Adamson (1987) • Threats - Bordenkircher v. Hayes (1978) Supreme Court on Plea Bargains

13. Pros and Cons of Plea Bargaining ProCon • Improves efficiency • Reduces costs • Allows concentration on serious cases • Avoids pretrial detention and delays • Individualized justice • Encourages defendants to waive constitutional rights • Results in lesser sentences and sentencing disparity • May coerce innocent to plead guilty • Low visibility • Breeds disrespect for the law – a “game show”

14. Length of Sentence: Pleas vs. Trials

15. Reforming Plea Bargaining • Make it more: • visible • understandable • fair • Create specific guidelines. • Require judicial supervision over the process. • Place limits on the process. • Alaska ban 1975 – no great effects • California 1982 – moves to preliminary stage

16. TRIALS Only 5% of all cases are heard by a jury trial.

17. VITAL FUNCTIONS OF THE JURY • Prevent government oppression • Determine guilt (facts) • Represent community • Serve as buffer • Educate citizens • Symbolize rule of law

18. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. Sixth Amendment

19. The Right to Confront Witnesses • Provides for a control over hearsay evidence and allows the veracity of witnesses to be challenged • Helps the accused in preparation of a defense to know who will present testimony for the state • Does not necessarily mean a face-to-face confrontation

20. Right to a Jury Trial • This right is guaranteed for all serious crime - not all crime • Constitutiondoes not require a 12 person jury, smaller juries may be permitted • The Sixth and Fourteenth Amendments do not mandate a unanimous verdictin all cases

21. The Right to Counsel at Criminal Trials 1868 1963 1972 1791 1932 1967 Bill of Rights 6th Amendment Powell v. Alabama In Re Gault Fourteenth Amendment Gideon v. Wainwright Argersinger v. Hamlin

22. Right to a Speedy Trial Purposes for this guarantee include: • Improve the credibility of the trial • Reduce defendant anxiety • Avoid pretrial publicity • Avoid adverse effects on the ability to present a defense

23. Time Limits for Speedy Trials • Constitution does notspecify a time limit • Most states have adopted statutes which define reasonable limits • Federal Speedy Trial Act of 1974 • provides time limits for various stages of the adjudication process • provision for fining defense counsels causing delays

24. Jury Selection Process Jury pool of 200 to 1,000 citizens drawn each month from source list Return to jury pool Panel 30 Guilty plea or dismissed Voir Dire Selected for jury 14 Challenged or not used 16 Guilty plea or dismissed Jury 14 Trial

25. Jury pool of 200 to 1,000 citizens drawn each month from source list Jury Selection Process Most jurisdictions use a number of sources for the names of potential jurors. The lists are sorted and duplicates are discarded. The jury pool is then selected on a random basis. The term that jury pools serve vary from jurisdiction to jurisdiction.

26. Jury pool of 200 to 1,000 citizens drawn each month from source list Jury Selection Process A panel of potential jurors is randomly selected for each jury trial. The size of the panel may be increased depending on the possible difficulty of selecting a qualified jury. Panel 30

27. The voir dire is a process of selecting potential jurors. Both prosecution and defense may object to jurors and challenge them peremptorily or for cause. Panel 30 Voir Dire Selected for jury 14 Challenged or not used 16

28. Challenge for Cause • Purpose is to determine if someone is unfit to serve. • Prosecution and defense want someone who is sympathetic to their side of the case. • Judge and both sides ask questions. • Number of these challenges is unlimited.

29. Peremptory Challenges • Enable attorneys to excuse jurors for no particular reason or for undisclosed reasons. • Number of challenges are limited. • Can’t be used to eliminate jurors on the basis of race, ethnicity or gender.

30. Jury Selection Process Jury pool of 200 to 1,000 citizens drawn each month from source list Jurors that are not selected are returned to the pool for possible use on another jury. Panel 30 Voir Dire Selected for jury 14 Challenged or not used 16 Jury 14

31. Prosecutors opening statement to the jury Defense attorney’s opening statement to the jury Prosecutor’s presentation of evidence and direct examination Steps in a Jury Trial Voir Dire

32. Defense attorney’s cross- examination Defense attorney’s presentation of evidence and direct examination Prosecutor’s cross-examination Steps in a Jury Trial

33. Defense attorney’s closing statements to the jury Prosecutor’s closing statements to the jury (summation) Judge’s instructions to the jury on the rule of law, evidence and standards of proof Steps in a Jury Trial

34. Jury deliberation and voting Pronouncement of the verdict Judicial sentencing Steps in a Jury Trial

35. Criminal Evidence • Testimonial evidence from witnesses • Real or physical evidence • Circumstantial or indirect evidence

36. Criteria of Admissibility of Evidence • Relevancy • Probativeness • Nonprejudicial • Reliability • Legally obtained

37. Instructions to the Jury • Judge’s responsibility • Provides jury with information about the law • elements of the crime • evidence required for proof • burden of proof required • Improper instructionsare often the basis foran appeal

38. The Verdict • Guilty • judge will normally set a date for sentencing and ask for a presentence investigation report • Not guilty • defendant is free to leave • Hung jury • case may be retried

39. Proof Beyond a Reasonable Doubt:What Does it Mean? • A doubt of 7 1/2 on a scale of 10. • A doubt based on reason and common sense. • Not frivolous or fanciful doubt. • Substantial doubt. • Persuasion to a moral certainty. • A doubt that would cause prudent persons to hesitate before acting in a matter of importance to themselves.

40. Sentencing • Normally after review of a Presentence Investigation Report in felony cases • Rules applying to discretionary decisions by judges regarding the kind and severity of sentence vary among jurisdictions • One of the most important and visible decisions by the judge

41. Judges v. Juries Judges and juries do not always evaluate evidence in the same way. Juries often look at the nature of the victim, the act (e.g. self defense) and whether the defendant took the stand.

42. Appeals • Most are unsuccessful. • They are based on some “legal” contention.Issues tend to deal with the introduction andsufficiency of evidence and jury instructions. • Homicides and other serious crimes against persons account for more than 50% of all appeals. • Most appeals arise from cases in which the sentence is five years or less.