Pretrial Procedures: The Adversary System in Action

1. Chapter 9 Pretrial Procedures: The Adversary System in Action

2. Learning Outcomes LO1:List the different names given to public prosecutors and indicate the general powers that they have. LO2: Delineate the responsibilities of defense attorneys LO3: List the three basic features of an adversary system of justice. LO4: Explain how a prosecutor screens potential cases. LO5: List and briefly explain the different forms of plea bargaining agreements.

3. List the different names given to public prosecutors and indicate the general powers that they have.

4. Learning Outcome 1 • Criminal cases are tried by public prosecutors, who are employed by the government. • Referred to as prosecuting attorneys, district attorneys, county attorneys, or city attorneys.

5. Learning Outcome 1 Prosecutor’s discretion in the pretrial phase includes: • Whether an arrested individual will be charged with a crime • The level of the charges • If and when to stop the prosecution.

6. Learning Outcome 1 • The attorney general is the chief law enforcement officer of the state. • Each jurisdiction has a chief prosecutor who is appointed, or more often, elected.

7. Delineate the responsibilities of defense attorneys.

8. Learning Outcome 2 • Provides legal representation to criminal defendants during the court process. • Responsibilities include: • Investigating the incident for which the defendant has been charged. • Communicating with the prosecutor, which includes negotiating plea bargains • Preparing the case for trial. • Submitting defense motions, including motions to suppress evidence. • Representing the defendant at trial. • Negotiating a sentence, if the client has been convicted. • Determining whether to appeal a guilty verdict

9. Learning Outcome 2 There are two types of defense attorneys: • Private attorneys • Public defenders • Gideon v. Wainwright (1963) • In re Gault (1967) • Argersinger v. Hamlin (1972)

10. CAREERPREP Public Defender Job Description: Interview low-income applicants for legal services and, if they are eligible, engage in negotiation, trial, and/or appeal of legal issues on their behalf. Exercise initiative, sound judgment, and creativity in attempting to solve the legal problems of the poor. What Kind of Training Is Required? A law degree and membership in the relevant state bar association. Commitment and dedication to the needs of low-income and elderly clients. Annual Salary Range? $44,000–$92,000 For additional information, visit: www.nlada.org/Jobs.

11. Learning Outcome 2 Effectiveness of Public Defenders • According to Supreme Court “a defendant may not insist on an attorney he cannot afford.” • The Strickland Standard • Two pronged test for sufficient defense: • Show that attorney’s performance was deficient • Show that deficiency more likely than not caused defendant to lose the case

12. Learning Outcome 2 Attorney-Client Privilege • Privilege rules require that communication between a client and lawyer be kept confidential. • Privilege does not stop at confessions. • United States v. Zolin (1989) • Lawyers can disclose communication with a client if client provides information about a crime that has yet to be committed.

13. List the three basic features of an adversary system of justice.

14. Learning Outcome 3 Three basic features of the adversary system: • A neutral and passive decision-maker, either the judge or the jury • The presentation of evidence from both parties • A highly structured set of procedures that must be followed

15. Learning Outcome 3 • The initial hearing is the first step after arrest. • During the appearance, the defendant is • Informed of the charges • Advised of right to counsel • Told the amount of bail • Given a date for the preliminary hearing

16. Learning Outcome 3 In most felony cases, defendant is released only after paying bail. • Bail is provided for under the 8th amendment. • Amount of bail must be reasonable compared with the crime.

17. Learning Outcome 3 Factors for setting bail: • The crime • The evidence • Defendant’s record • Flight risk • General character

18. Learning Outcome 3 Factors for setting bail: • Uncertainty • Risk • Overcrowded jails

19. Learning Outcome 6

20. Learning Outcome 3 • Release on recognizance (ROR • Alternative to bail • The judge decides that defendant is not a flight risk and does not pose threat to community. • Property bonds • Paying bail with property, rather than cash. • Bail bond agent • An agent that posts bail on behalf of defendant. • Promises to pay full amount of bail if defendant does not show up to court.

21. Learning Outcome 3 • Preventive Detention: • Allows judges to deny bail to suspects with prior records. • The Bail Reform Act of 1984 • United States v. Salerno (1987)

22. Explain how a prosecutor screens potential cases.

23. Preliminary Hearing: Initial hearing where the judge determines if probable cause is present Conducted as a mini-trial Begins the process of discovery – gives defense attorney access to evidence Defense attorneys often advise defendants to waive the hearing. Learning Outcome 4

24. Grand Jury Group of citizens who decide whether probable cause exists Issues an indictment if it decides there is probable cause. Acts as a “shield” and “sword” Criticized for being prosecutors’ “rubber stamp” Learning Outcome 4

25. Learning Outcome 4 Case attrition is the decision by the prosecutor not to prosecute the defendant (nolle prosequi) • Scarce resources • Screening factors • Sufficient evidence • Case priorities • Uncooperative victims • Unreliability of victims • Defendant who is willing to testify against other offenders

27. List and briefly explain the different forms of plea bargaining agreements.

28. Learning Outcome 5 At the arraignment… • Defendant responds to charges with a plea: • Guilty • Not Guilty • Nolo Contendre (No contest)

29. Learning Outcome 5 Plea bargaining • Process by which the accused and prosecution work out a mutually satisfactory disposition. • Charge bargaining • Sentence bargaining • Count bargaining

30. Learning Outcome 5 Motivations for Plea Bargaining • The Prosecutor wants a conviction • Defense Counsel wants best outcome for the defendant • The Defendant wants some measure of control over the outcome

31. Source: Adapted from Bureau of Justice Statistics, State Court Sentencing of Convicted Felons, 2004 (Washington, D.C.: U.S. Department of Justice, July 2007), at www.ojp.usdoj.gov/bjs/pub/html/scscf04/tables/scs04404tab.htm.