CHAPTER SEVEN

1. CHAPTER SEVEN TRIALS AND TRIAL PROCEDURES

2. Introduction • Trials command public attention • Spectacular crimes • Notorious parties • Sympathetic victims • Visible representative of the criminal justice process • Few cases make it to trial

3. Pretrial Procedures • Arrest • Police Lockup • Bail Set • Initial Appearance • Preliminary Hearing • Grand Jury • Arraignment • Pretrial Motions

4. Arrest • Seizure or forcible restraint • Taking or keeping a person by legal authority in response to a criminal charge • Arrest with a warrant • Felony and misdemeanor arrests • Arrest without a warrant • Felony arrests if committed in the officer’s presence, or upon probable cause • Misdemeanor arrests if offense is committed in the officer’s presence, or if allowed by the state for other specific offenses

5. Suspect Placed in Police Lockup • Short-term detention • Processing • Book suspect into jail • Investigations • Custodial interrogations

6. Bail • Process of securing release prior to next court appearance • 8th Amendment prohibits excessive bail • Bail set by judge or magistrate • Preventive detention • Presents a significant flight risk • Presents a significant public safety threat • Bail Reform Act of 1984 • Issues with preventive detention • Methods of posting bail • Unsecured bond • Cash deposit • Property bonds • Bail bondsman • Percentage deposit

7. Initial Appearance • Processing of felonies and serious misdemeanors • Judge considers existence of probable cause for arrest • Charges are reviewed • Attorney representation addressed • Takes place 24-48 hours after arrest

8. Preliminary Hearing • Felony and misdemeanor cases • Right may be waived by defendant • Defendant informed of charges • Discussion of right to counsel • Discussion of bail reduction • State begins presentation of evidence to show probable cause

9. Grand Jury • Guaranteed by 5th Amendment (federal felonies) • Private aspect • Hearings are closed • Defendant, media, and public cannot attend • Members are sworn to lifelong secrecy • Size variation • Prosecuting attorney advises grand jury • Unanimous decisions are not needed • May issue true bill or no true bill

10. Arraignment • Judge may address counsel and bail • Defendant is informed of charges • Defendant informed of Due Process Rights • Defendant enters a plea • Guilty • Not guilty • Nolocontendere • Guilty but mentally ill • Not guilty by reason of insanity • Alford plea

11. Plea Bargaining • Advantages • Eliminates uncertainty of trial • Lesser sentence • Removes time and stress of trial • Issues • Places prosecutor in a position of power • Defendant is at the mercy of prosecutor and defense attorney • Judge plays a minor role • Factors driving plea bargaining • Caseload • Allows all parties to get something they want

12. Presentence Investigation Report • Work History • Education • Family • Prior Criminal History • Makes a recommendation of incarceration or probation

13. Pretrial Motions • Dismissal of charges • Severance of Charges • Change of Venue • Suppression of Evidence • Discovery • Continuance • Many others

14. Jury and Bench Trials • Right to jury trial is guaranteed by the 6th Amendment • The defendant may waive this right • In a bench trial, the judge determines the outcome • Most felonies are resolved through jury trials

15. Jury Selection • Small lists are assembled from the master list • Venire goes through jury selection • Potential jurors are questioned (voir dire) • Biased jurors are eliminated • Unlimited strikes for cause • Limited number of peremptory challenges • Art or science of jury selection • Case may be won or lost in jury selection

16. Opening Arguments • Prosecuting attorney goes first • Each side gives an overview of their case • Explain the theory of the case

17. Witness Examination • Prosecution calls witnesses first • Initial questioning (direct examination) done by the side calling the witness • Opposing side then questions the witness (cross-examination) • Attorneys may continue questioning until both sides have concluded • Types of witnesses • Eyewitnesses (lay witnesses) • Expert Witnesses

18. Use of Scientific Analysis • The court “must decide whether the proposed expert testimony meets the requirements of relevance and reliability.” • Party seeking to admit the evidence “must show that the expert’s underlying reasoning or methodology, and its application to the facts, are scientifically valid.” • Factors for scientific validity (Daubert v. Merrell Dow Pharmaceuticals) • Whether the theory can be or has been tested • Whether the theory has been subjected to peer review or publication, the theory’s known or potential rate of error, and whether there are standards that control its operation • The degree to which the relevant scientific community has accepted the theory

19. Closing Arguments and Jury Instructions • Defense gives closing arguments first • Addresses inconsistencies or flaws in the opposition’s case • Judge reads instructions (charge) to the jury • Explanation of the state’s obligation • Guilt beyond a reasonable doubt • Instructions about witness testimony • Special instructions

20. Jury Deliberations and Verdict • Determination about sequestering the jury • Jury elects a foreperson • Preliminary vote • Address and discuss evidence • Final vote • Judge announces the verdict • Jurors may be polled • Judge sets sentencing date and orders pre-sentence investigation report

21. Sentencing • Theories of sentencing • Retribution • Deterrence • Incapacitation • Rehabilitation • Restorative Justice • Performed by jury in capital cases, judge in other cases • Judge determines concurrent or consecutive sentences • Judge may suspend some sentences

22. Appeals • Misdemeanors • Appeal to courts of general trial jurisdiction • De novo (new) trial • Felonies • Appeal to courts of intermediate appeals or courts of last resort • Right of appeal limited to court examination of trial record for error • Few cases are appealed • Appeals are based upon errors of law