The Pre-Trial Process

1. The Pre-Trial Process

2. Initial Appearance &Probable Cause Hearing

3. Initial Appearance • Requirement • Purpose & Function • Timing Of • Features Of

4. Initial Appearance • Statutory Requirements • Federal Rules of Criminal Procedure, Rule 5 • Texas Code of Criminal Procedure, Article 15.17 • Consequences for Violation • McNabb v. United States • Mallory v. United States • Congressional Response • Constitutional Concerns • Rothgery v. Gillsepie County, Texas (2008)

5. Probable Cause Determination • Gerstein v. Pugh • Facts • Legal Procedure • Issue • Holding • Rationale • Requirement for hearing • Purpose for 4th Amendment • Determination by magistrate not required before • Shift in interest following arrest • Features of hearing • When adversarial pretrial hearings used • More important, more procedures • Full adversarial hearings not required • Evaluation of credibility not valuable • No one right way

6. Probable Cause Determination • County of Riverside v. McLaughlin • Facts • Legal Procedure • Issue • Holding • Rationale • Need for balance • Why not immediate • Federalism • Prompt, not immediate • Some delays inevitable • Flexibility has limits • 48 hour limit • Balance Shifting

8. Bail & Pre-trial Detention The Pre-trial Process

9. Available Options • Pretrial Release on Bail • Pretrial Release on Own Recognizance • Pretrial Detention

10. Pre-Trial Detention • No Constitutional Right to Bail • Carlson v. Landon (1952) • Bell v. Wolfish (1979) • Texas Constitutional Provision • Preventative Detention Statutes • First Statute (D.C. 1970) • Bail Reform Act of 1984 • United States v. Salerno

11. Pre-Trial Detention • United States v. Salerno • Facts • Issue • Holding • Rationale • DUE PROCESS CLAIM • Procedural vs. Substantive Due Process • Substantive Challenge • Procedural Challenge • EIGHTH AMENDMENT CLAIM

12. Pre-Trial Detention • Detention Conditions • Prison Rules (Bell v. Wolfish (1979)) • Unannounced Cell Searches (Hudson v. Palmer 1984))

13. Release on Bail • Definition • Purpose & Function • Constitutional Protections • Excessive Bail – Stack v. Boyle (1951) • Application to States • Murphy v. Hunt (1982) • Texas Constitutional Provision • Hearing Requirements • Separate Hearing • Type of Hearing • Factors Considered • Flight Risk • Dangerousness • Financial Statute

14. Release on Own Recognizance • Definition • NYC’s Manhattan Bail Progress • Texas Statutory Provision

15. The Preliminary Hearing The Pre-trial Process

16. Preliminary Hearing • Definition • Source of Requirement • LemWoon v. Oregon (1913) • Federal Rules of Criminal Procedure, Rule 5.1 • Texas Code of Criminal Procedure, Article 16.01 • Purpose & Function • Historical Perspective • Preliminary Hearings & Grand Jury • Additional Functions Served

17. Preliminary Hearing Statutes • Federal Statute, Fed. R. Crim. Proc. 5.1 • (a) Probable Cause Finding – If from the evidence it appear that there is probable cause to believe that the believe that an offense had been committed and that the defendant committed it, the federal magistrate shall forthwith hold the defendant to answer in the district court. • Texas Statute, Tex. Code Crim. Proc. Art. 16.01 • When the accused had been brought before the magistrate for an examining trial, that officer shall proceed to examine into the truth of the accusation made. The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense.

18. Preliminary Hearing • Timing • Features • Adversarial Protections • Counsel • Confrontation • Cross-examination • Quantum of Proof • Evidentiary Requirements • Discovery Function • Defense Witnesses • Affirmative Defenses • Effect of Finding of No Probable Cause

19. Preliminary Hearing • Relevant Case Law • Coleman v. Alabama (1970) • Myers v. Commonwealth (1973) • Purpose for hearing • Importance of hearing • Different from PC to arrest • Level of proof different • More than prosecutor’s evidence • Adversarial hearing required • Won’t become a full blown trial

20. Grand Jury Pre-trial Process

21. Grand Jury • Definition • Source of the Requirement • Constitutional in Federal Cases • Not Constitutional in State Cases • Hurtado v. California • Purpose & Function • Construction • Duration • Size • Voting Requirements • Selection of members • Equal Protection Clause – Rose v. Mitchell (1979) • Fair Cross Section Requirement – Taylor v. Louisiana (1975)

22. Grand Jury • Features • Secrecy • Exceptions to Secrecy • Oath by Jurors • Rights of Criminal Defendant • Right to be present • Right to counsel • Right to cross-examination • Right to testify • Rights of Witnesses • Right to not testify • Right to counsel

23. Grand Jury • Features, cont’d • Role of the Prosecutor • Investigative Power – United States v. Calandra (1974) • Subpoenas • ad testificandum • ducestecum • Grand of Immunity • Transactional Immunity • Use (derivative use immunity) • Findings of Contempt

24. Grand Jury • Indictments • Contents • Purposes • Informs the grand jury • Provides form for charges • Basis for arrest warrant • Official charging instrument • Notification for defendant • Variance

25. Grand Jury • Indictment, cont’d • Challenges • Lack of Evidence • Competent Evidence • Costello v. United States • Misconduct by Prosecutor • Bank of Nova Scotia v. United States • Unfair Selection Process • United States v. Mechanik • Failure to Present Exculpatory Evidence • United States v. Williams • Exclusionary Rule • United States v. Calandra

26. Comparison • Determination of probable cause • Nature of proceedings • Parties present • Special Power

27. Arraignment The Pretrial Process

28. Arraignment • Purpose & Function • Notice • Enter Plea • Available Pleas • Not Guilty • Guilty • Nolo Contendre • Not Guilty by Reason of Insanity • Jeopardy Pleas

29. Review Questions

30. Question One: Criminal Procedure • What is the difference between procedural and substantive law? • What are the three sources of criminal procedure law? • What are the two competing concerns in criminal procedure, and why it is important to achieve a balance between the two?

31. Question Two: The Constitution • Name three different methods or modalities of interpreting the constitution. • Name three individual rights (and the corresponding amendment) that are relevant to criminal procedure law. • What is judicial review and in which Supreme Court case was it established?

32. Question Three: Common Law • Name at least one of the basic principles of a common law legal system? • What is stare decisis? • What are three basic types of appellate opinions?

33. Question Four: Overview of Criminal Justice Process • Name three stages occurring during the “Investigative Phase” • Name three stages occurring during the “Trial Phase.” • Name two different types of appeals in the “Appeals Phase.”

34. Question Five: CASELAW • What was the holding of the Supreme Court in Gerstein v. Pugh? • What issue did the Court decide in Stack v. Boyle? • What did the Supreme Court hold in Coleman v. Alabama

35. Question Six: Initial Appearance • Name at least three of the four things that will typically occur during an initial appearance. • When must an criminal suspect be taken for an initial appearance? • In Rothgery v. Gillespie County, Texas, the Supreme Court held what about a defendant and his right to counsel at the initial appearance.

36. Question Eight: Probable Cause Hearing • When, in what instance, is a criminal defendant entitled to a probable cause hearing? • Why did the Supreme Court hold that a person may be arrested without a warrant (determination of pc by neutral magistrate) but not detained following arrest without one. • How did the Supreme Court define “prompt” in terms of the probable cause hearing?

37. Question Seven: Bail • What are the three broad “factors” that are considered in determine whether, or in what amount, to set bail. • Why does the denial of bail, in certain instances, not violate “substantive” due process? • How has the Supreme Court defined “excessive?”

38. Question Nine: Preliminary Hearing • What is the primary function of the preliminary hearing and what is the “source” of the requirement? • What are 2 additional functions served by the preliminary hearing, besides its primary function. • How is “probable cause” as used in context with a preliminary hearing different from “probable cause” as used in other contexts?

39. Question Ten: Grand Jury • What is the “source” of the grand jury requirement? • Identify two “special powers” of the grand jury. • Identify three differences between the grand jury and the preliminary hearing.