Chapter Five Pretrial Proceedings

1. Chapter Five Pretrial Proceedings No person shall be held to answer for a Capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. . . . — US Constitution, Amendment V, 1791

2. KEY WORDS Key terms to understand for this chapter… • Former Acquittal • Grand Jury • Indictment • Nolo Contendere • Preliminary Hearing • Right of Discovery • Transactional Immunity • Use and Derivate Immunity

3. OBJECTIVES After completing this chapter, you should be able to… • Explain functions & purposes of a preliminary hearing. • Discuss the duties of a grand jury. • List and describe the types of witness immunity. • Understand the functions of a medical examiner. • Explain what occurs at an arraignment. • Describe the history of the grand jury. • Explain the differences between a grand jury and a preliminary hearing in charging an accused.

4. at a preliminary hearing, the prosecuting attorney presents evidence against the accused • a defendant may waive a preliminary hearing in most jurisdictions Andrea Yates entersthe 230th District Court in Houston with attorneyGeorge Parnham (L) forarraignment on multiplecounts of capital murderin the drowning deathsof her five children,August 8, 2001. Preliminary Hearing • Many states use a preliminary hearing or examination in lieu of a grand jury. • A magistrate decides if adequate cause exists to require an accused to stand trial for the offense or offenses.

5. Preliminary Hearing • At a hearing, a prosecuting attorney presents evidence against the accused, which may consist of witnesses and physical evidence deemed appropriate. • in most states, formal rules of evidence do not apply • Most jurisdictions allow hearsay evidence, in the form of statements to police, to be considered in determining sufficient evidence to hold a defendant for trial. • After the prosecution, the defense may present a case. • In most states, if there is a grand jury indictment, no preliminary hearing is required.

6. Preliminary HearingBound Over for Trial • If evidence presented establishes probable cause, the magistrate will bind the defendant over for trial. • If the evidence supports only a misdemeanor charge, the magistrate will reduce the charges. • in some states a magistrate has authority to handlethe misdemeanor • In some states, if the defendant pleads guilty, the magistrate has authority to accept the plea. • he/she then forwards the case to trial court for sentencing • If the magistrate determines probable cause does not exist, he/she will dismiss the charges.

7. Preliminary HearingWaiver of Preliminary Hearing • Although a safeguard for the benefit of the defendant, he/she may waive it if he/she so desires, and in most jurisdictions, agreed by prosecuting attorney & judge. • There are advantages and disadvantages to both the defendant and the prosecution in the waiver. • if a defendant is unable to make bail, waiver resultsin an earlier trial date being set • by demanding a hearing, a defendant might bring about a dismissal of the charge and his or her release from custody • a waiver limits the charges against the defendant to those existing in the complaint at the time of the waiver

8. Preliminary HearingWaiver of Preliminary Hearing • While the grand jury was established to safeguard the accused, the system has attacked by defendants. • some professionals contend a preliminary hearing better fulfills Due Process of the Fourteenth Amendment • Generally, the courts have held that either the grand jury hearing or the preliminary hearing system maybe adopted by the states • and both satisfy the due process of law requirement

9. Cincinnati police officers block the entrance to the Contemporary Arts Center where photographs by the late Robert Mapplethorpe are on exhibit. A grand jury returned indictments on two first-degree misdemeanor counts each of pandering obscenity and illegally using a minor in nudity-oriented material. Arraignment • When an indictment is returned or an information filed with the court, the accused will bearraigned. • if the accused was not arrestedbefore the indictment, thisarraignment may be theinitial appearance

10. ArraignmentEntering a Plea • Depending upon the jurisdiction, the defendant may enter any one or more of the following pleas: • guilty or not guilty • nolo contendere • not guilty by reason of insanity • former jeopardy • former judgment of acquittal or conviction • Generally, law provides that if a defendant does not plead not guilty by reason of insanity, he/she shall be conclusively presumed to have been sane at the time the crime was committed.

11. ArraignmentGuilty Plea • At one time, it was thought justice was accomplished only by trial, and guilty pleas were not permitted. • A plea of guilty is more than a confession that admits the accused did various acts; it is itself a conviction. • the plea of guilty cannot be accepted lightly by a judge • Generally, in felony cases, a guilty plea must be made by the defendant in open court, orally or in writing. • In lesser offenses (misdemeanors and infractions), most states allow counsel to enter guilty pleas on behalf of their clients in open court and on the record.

12. ArraignmentGuilty Plea • In lesser offenses (misdemeanors and infractions), most states allow counsel to enter guilty pleas on behalf of their clients in open court and on the record. • In accordance with Boykin v. Alabama, before a judge may accept a guilty plea to any charge, the defendant must be informed of the significance of the guilty plea. • After a plea of guilty is accepted, the next step is to sentence the defendant.

13. ArraignmentWithdrawal of Guilty Plea • In most jurisdictions, a defendant, upon showing a good cause, may withdraw a guilty plea and enter one of the other pleas at any time before sentencing. • The request of a defendant to withdraw a guilty plea is not taken lightly, as it could inconvenience witnesses, crowd court calendars, and cause additional expense. • In a few jurisdictions, if the defendant was not represented by counsel, the judge must permit the defendant to withdraw the guilty plea on good cause. • a problem is determining what is considered good cause

14. ArraignmentNot Guilty Plea • When a plea of not guilty is entered by the defendant, the case will start proceeding toward a trial. • if to a misdemeanor charge, the case may be set immediately for trial, in most instances in the minor court • If the not guilty plea is to a felony charge, further proceedings must take place before the case can beset for trial in superior or district court • to protect the accused from being held for trial without sufficient cause • Most jurisdictions permit a defendant to withdraw a not guilty plea & enter a guilty plea any time during trial.

15. ArraignmentNot Guilty Plea • Occasionally, a defendant will refuse to enter any plea and stand mute before the court. • History reveals that when this behavior occurred in early common law, the defendant was subjected to cruel treatement until he/she died or entered a plea. • In later years, a more humane procedure was followed, and the silence was treated as a guilty plea. • Today, if the defendant refuses to plead, a plea of not guilty is entered for him/her, followed by a trial.

16. Arraignmentnolo contendere • A plea of nolo contendere, — “I will not contest it” or “no contest”— is essentially equivalent to a guilty plea. • in some states, known as non volt contendere, sometimes abbreviated as non volt • The judge must inform the defendant of those rights that he/she is entitled to & those waived by such a plea. • In some jurisdictions, the nolo contendere plea may not be used against the defendant in a civil matter. • because the defendant has not admitted guilt • Not all states permit a nolo contendere plea to be entered by a defendant.

17. ArraignmentNot Guilty by Reason of Insanity • In a plea of not guilty by reason of insanity, the defendant is admitting commission of the act, but the alleges that he/she cannot be held responsible because he/she was not sane at the time the act was committed. • the whole issue of the ensuing trial is whether the defendant was sane or insane at the time the crime was committed • Most states provide that if the defendant enters thisplea, he/she has the burden of proof. • a few hold that burden of proof still rests with the prosecution • If the defendant is found to have been sane at the time the only procedure to follow is sentencing.

18. ArraignmentPlea of Once in Jeopardy • The guarantee against being placed twice in jeopardy is of ancient origin, found in procedures of early Greek and Roman jurisprudence • established in common law of England • brought to this country by the colonists • The guarantee is embodied in the Fifth Amendment to the US Constitution and the laws of all the states. • The guarantee provides that no person shall be placed in jeopardy of his or her life or liberty more than once for the same offense.

19. ArraignmentPlea of Once in Jeopardy • If it were not for this guarantee against double jeopardy, an accused could be tried and retried until found guilty. • or retried if it was felt the sentence was not severe enough • Many are under the impression that an accused cannot be tried twice for the same offense, not always the case. • Generally, if a defendant is acquitted of a crime, he/she cannot be tried again for that particular offense. • there are situations in which a defendant may be tried twoor more times for the same offense • Upon appeal, the defendant is in a sense waiving his or her guarantee against double jeopardy.

20. ArraignmentPlea of Once in Jeopardy - Crist v. Bretz • It has been held that if the jury cannot arrive at a verdict, the case may be retried by a different jury without violation of the double jeopardy right. • The determination of when an accused has been placed in jeopardy involves complications. • The Supreme Court settled the problem in Crist v. Bretz: • “…the federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy.” • The Court indicated that a court trial (trial by the judge without a jury) begins when the first witness is sworn.

21. ArraignmentFormer Judgment of Conviction/Aquittal • The plea of former conviction or former acquittal isnot included in the statutes of all states. • If a defendant breaks both state & federal law, he/she could be prosecuted by state or federal governments. • The question of being prosecuted by both without a violation of double jeopardy guarantee was answered in the case of US v. Lanza, reiterated in Abbate v. US. • the Court concluded a defendant could be tried by both • Once jeopardy has attached, a prosecutor may not file new, different charges based on the same conduct.

22. Former Enron Corporation chief executive Jeff Skilling is escorted into the Federal Courthouse in Houston, February 19, 2004. Skilling surrendered to the FBI to face indictment by a federal grand jury for his part in the collapse of the former energy trading giant. Grand Jury • A grand jury is a group of persons representing a cross section of a community • Their primary purpose is to hear certain types of criminal accusations • to determine whether there are sufficient facts to hold an accused for trial.

23. Grand Jury • The Magna Charta provided that no freeman was to be seized & imprisoned except by judgment of peers. • Accusation had to be presented to a council to determine if a charge was well founded. • this group, up to 23 persons, became known as a grand jury • Approximately one-half of the states hold that all felonies must be presented to a grand jury. • Remaining states provide that accusation may be presented in the form of a preliminary hearing • in lieu of grand jury action

24. Grand JuryWood v. Georgia • The US Supreme Court, in Wood v. Georgia: • “Historically, this body [the grand jury] has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.”

25. Grand JurySelection & Qualification of Grand Jurors • Selection of grand jurors varies from state to state. • In some states, selection is random, often using voter lists, in others, judges of the county will furnish to the clerk the names of prospective jurors. • Following the common law tradition, grand juries in this country vary from sixteen to twenty-three persons. • They are usually selected at the beginning of the calendar or fiscal year and generally serve for one year. • Qualifications necessary to serve on the grand jury are very similar to those of a petit jury.

26. Copy of Michael Jackson’s Grand Jury Indictment. Grand JuryIndictment • Prior to grand jury hearings, the prosecuting attorney will prepare a formal document setting forth charges against the accused. • Known as an indictment, it sets forth the name of the accused, the alleged crime, date/place of the alleged crime, and a few pertinent facts about the crime.

27. Grand JuryIndictment • The indictment serves several purposes. • it informs the grand jury of the charge about which theywill receive evidence during the hearing • if the jurors vote in favor of holding the accused for trial,the foreperson will sign, or, “endorse the indictment” • if the accused is not in custody, the indictment will enablethe judge to issue a warrant of arrest • the indictment is an accusatory pleading and sets the trial in motion in the superior court • the indictment informs the defendant of the charge(s) against which he/she must defend himself or herself

28. Grand JuryHearings • The frequency with which the grand jury meets depends upon the number of charges to be heard. • Although the grand jury may call a hearing on its own, members usually meet at the request of the prosecutor. • The grand jury meets in closed hearings, and the procedure is secret. • Jury members will question witnesses and receive the evidence deemed pertinent by the prosecuting attorney. • A court reporter is usually present to record testimony.

29. Grand JuryHearings • After hearing witnesses & receiving evidence, the jurors will deliberate, and vote to determine whether there are sufficient facts to believe a crime has been committed, and whether the accused committed it. • They do not have to believe beyond a reasonable doubt as to guilt; they require only sufficient probable cause to believe that the accused is guilty of the act. • If the required number does not vote in favor of holding the accused for trial, the foreperson will so designate on the indictment.

30. Grand JuryHearings • The defendant is not entitled to be present during a grand jury hearing. • The grand jurors have the authority to call additional witnesses, including the accused. • The accused does not have to answer any questions that might subject him/her to punishment. • If a grand jury fails to hold the accused for trial, most states permit the indictment to be submitted to a different grand jury. • some states have statutory regulations prohibiting this

31. Grand JurySecret Indictment • If the defendant is not in custody at the time of indictment, a warrant of arrest will be issued. • No public record is made of the indictment & warrant, so the defendant will not be alerted and making his/herlocation & apprehension more difficult. • The indictment in this case is referredto as a secret indictment or sealedindictment. Rap artist Tupac Shakur, surrounded by his entourage, leaves New York’s Criminal Court building after pleading not guilty to sodomy charges.

32. Grand JuryOpen Hearings • Frequently, a grand jury is called on to investigate and hold hearings concerning alleged acts of misconduct by public officials. • In these situations, most jurisdictions permit the hearing to be open to the public when it is believed to be in the best interest of justice. • To hold an open hearing usually requires that a request be made to the presiding judge by the prosecuting attorney and by the foreperson of the grand jury.

33. Grand JuryDismissal of Indictment • Prosecution does not necessarily follow an indictment by a grand jury. • In many jurisdictions, the prosecuting attorney is permitted to dismiss the indictment, in a procedure referred to as a “nolle prosequi action.” • a formal entry on the record of the case stating that nofurther prosecutive action will be taken in the matter • Other jurisdictions hold that only the presiding judge may dismiss the indictment.

34. Grand JuryOther Functions • In many states, the sole function of the grand jury is to hold hearings on criminal charges. • In a few states, the grand jury performs other functions, such as investigating public expenditures. • It may also inspect jails, prisons & mental institutions within its jurisdiction to determine if these facilitiesare complying with safety and health regulations.

35. Grand JuryCriticism of the System • It has been alleged the grand jury is merely a rubber stamp of the prosecuting attorney. • Another allegation is that the grand jury is notrepresentative of the peers of the accused • Those advocating retention of the grand jury system in often quote Justice Harlan’s dissenting opinion in the Hurtado v. California. • “…nothing stands between the citizen and prosecution forhis life, except the judgment of a justice of the peace [in a preliminary hearing]”

36. Grants of Immunity for Witnesses • The government may compel testimony of a witnessif he/she has been granted immunity. • with immunity, testimony is not self-incriminating • There are two types of immunity: • transactional and use & derivative use • With transactional immunity, a witness cannot be prosecuted for the transaction about which the witness was compelled to testify. • Failure to provide information about a crime may make the witness an accessory after the fact to the crime.

37. Grants of Immunity for Witnesses • Use & derivative use immunity restricts the government from using the testimony or any other information obtained directly or indirectly from the testimony. • The government may prosecute a person who has use and derivative use immunity. • as long as the government establishes the evidence it offersat trial was derived from a legitimate independent source

38. Chief Forensic Anthropologist & author Kathy Reichs handling a skull in office of the ChiefMedical Examiner, North Carolina. The TV series Bones is based on her books. Medical Examiner • A coroner should go to the place where any person is slain or suddenly dead or wounded …and the coroner should inquire into the manner of the killing.[Jarvis on Coroners, 1829]

39. Sign points the way to the Los AngelesCounty Chief Medical Examiner’s office,Los Angeles, CA. Medical Examiner • The primary function of the coroner is to investigate the cause of certain deaths within the county. • in most jurisdictions, a medicalexaminer replaces the coroner • The coroner came into being in England, traced as far back as 1194, and was a direct representative of the king • the crown or corona, thus coroner

40. Medical Examiner • Coroners were elected by the king’s judges. Their responsibility was to keep records on all that wenton in the county. • as it concerned administration of justice and guard revenues that might come to the king • At the beginning of the thirteenth century, coroners began to investigate all sudden deaths in their jurisdiction to determine if they by criminal means. • It was thought that since the sheriff was responsible only to the people of the county, the sheriff might be hesitant to bring the offender to trial.

41. Medical ExaminerDuties • Over time, with the king no longer able to confiscate a felon’s property, the coroner should have disappeared. • the coroner had become so entrenched in the judicialprocess the office was carried from England to the US • The coroner is a part of most county governments with duties deviating greatly from those first performed. • The duty & right of the coroner is to inquire into and determine circumstances, manner, and cause of all violent, sudden, and unusual deaths. • any law officer, physician, funeral director, or other person knowing of such death is required to report it to the coroner

42. Medical examiners work on a dissected corpse laid on an examination table in a morgue. Medical ExaminerDuties • If cause of death cannot be readily determined, the coroner has the authority to take possession of the deceased body, to have an autopsy performed, and to conduct such investigation as may be necessary to assist in determining cause of death. • The coroner also may holdan inquest to determine nameof the deceased; time, place& medical cause of the death.

43. Medical ExaminerSelection and Qualifications • In some jurisdictions, the medical examiner or coroner is appointed by the county governing body • in other places, he/she is elected by the people of the county • In most jurisdictions there is no requirement that the coroner be medically trained. • in such case, the coroner will have to rely upon a physicianto perform the autopsies • In some jurisdictions, the sheriff is permitted to act in the capacity of coroner as well as that of sheriff. • The law states that the coroner will act as the sheriff, should the sheriff be unable to perform his/her duties.

44. Medical ExaminerSelection and Qualifications • Though the coroner may not function as a sheriff, the coroner has the status of a peace officer in many states. • The medical examiner or coroner is often required to take custody of the personal property in the immediate possession of the deceased. • This usually includes property on the person of the deceased, but also include taking precautions to see that property in a residence is secured. • The property is then released to the legal representative of the deceased when that person is determined.

45. SUMMARY Important topics for this chapter… • During arraignment, the defendant is given the opportunity to enter a plea to the charge alleged in the complaint. • At one time, defendants could not enter a guilty plea based on the belief that the only way justice could be accomplished was by a trial. • Many states use a preliminary hearing in lieu of agrand jury.

46. (cont.) SUMMARY Important topics for this chapter… • The purpose of a preliminary hearing is to determine if there is sufficient evidence to hold the accused for trial. • Inadmissible evidence may be used in the preliminary hearing in most states. • If the magistrate determines that there is sufficient evidence, the accused is bound over for trial.

47. (cont.) SUMMARY Important topics for this chapter… • The grand jury system was established to safeguard the accused, but the system has been under attack by some attorneys and charged with being a tool for the prosecutor. • When an indictment is returned or an information is filed with the trial court, the accused will be arraigned upon the accusatory pleadings. • In most jurisdictions, the defendant may withdraw a guilty plea upon a showing of good cause.

48. (cont.) SUMMARY Important topics for this chapter… • Before a guilty plea is accepted by the court, the judge must advise the accused of his or her rights as required by the Boykin v. Alabama decision. • A defendant does not have a constitutional right to have his or her guilty plea accepted by the court. • A plea of nolo contendere means that the defendant does not contest the charge. Some courts do not accept nolo contendere pleas.

49. (cont.) SUMMARY Important topics for this chapter… • Whether a defendant may enter a plea of not guilty by reason of insanity depends on the law of the state involved. • The defendant is required to assert a plea of double jeopardy or it will be waived. • A grand jury's primary purpose is to hear criminal accusations in order to determine whether there are sufficient facts to hold the accused for trial.

50. (cont.) SUMMARY Important topics for this chapter… • A grand jury may also investigate public agencies and public officers. • Grand jury hearings are not open to the public.