Pretrial Phase

1. Pretrial Phase The vast majority of cases do not go on to trial, but are resolved at this phase. The bail decision is particularly important, as those denied a pre-trial release are far more likely to be convicted than those who are released.

2. Pretrial Maneuvers Less than 10% of all criminal cases go to trial, why: 1. Police/prosecutor decision to bring charges in the initial stages 2. Judge dismisses the case at the preliminary hearing 3. Grand jury refuses to indict 4. Prosecutor decides to drop the case

3. Factors Impacting Prosecution Decisions 1. Seriousness of the offense 2. Strength of the case in an evidentiary sense: A. Substantive – solid evidence, quality witnesses B. Procedural – search and seizure violations by the police 3. Attitude concerning the offense (ie., marijuana, prostitution) 4. Prosecutorial intuition 5. Personal psychic state of the prosecutor at the moment

4. Factors Impacting Prosecution Decisions…continued 6. Political factors: - person so well-known impossible to get a conviction, - successful prosecution not sit well with the community - pressure to drop the case from the general public in the aggregate and/or key political figures - person is acquainted with the prosecutor in some way 7. Humanitarianism (drop charges in lieu of obtaining psychiatric help/joining the military/serving in the Peace Corps, etc) 8. Communal justice better served by nulling or reducing charge severity 9. Organizational factors, generally lack of resources (expertise, money, time) 10. Pressure to drop the case from other justice system actors 11. Batting average games

5. Pretrial Release/Bail • Amount of bail varies with the severity of the offense and the characteristics of the accused. • Defendant retains a criminal liability; just a release pending future court processing. • Different pre-trial release/bail options: a. Bond yourself out b. Bail Bond agent c. 10 percent system d. ROR/PTR bond

6. Leading Bail Court Cases • Stack v. Boyle (fail to appear test) - Bail may be denied if there is probable cause to believe that defendants will fail to appear at future judicial proceedings. • U.S. v. Salerno (dangerousness test) - Bail may be denied if there is clear and convincing evidence that defendant are dangerous and pose a threat to the community at large and the court participants in particular. • Taylor v. Taintor - Bail bond agents may use physical force to capture their bondees who have skipped bail, as long as the force used is reasonably related to the custody and/or transportation of the bondees.

7. Pretrial Diversion • Generally run by Prosecutors • Sometimes called deferred sentencing/withheld adjudication • Non-dangerous, generally non-violent offenders may earn the dismissal of charges if they abide by certain rules. • If the defendant fails to abide by the rules/by the contract, the original charges can be filed.

8. Standard Pretrial Diversion Requirements • No new offenses • Pay restitution to the victim, and/or complete some form of community service • Maintain employment and/or stay in school • Obtain a drug/alcohol/mental health evaluation • Complete a drug/alcohol/mental health program when applicable • Pay a small fee • Sign a confession regarding the case at hand Again, if the defendant fails to abide by the agreement, the original charges can be filed

9. Pretrial Diversion Advantages • Removes people from/minimizes their level of intrusion into, the justice system • Save money for all concerned • No record for persons involved, so no stigma (can get into law school, medical school, become a barber, get bonded, etc) • Offenders are held accountable/compensation is made (just desserts)

10. Pretrial Diversion Problems • Widening of the net • Constitutional infringements • Class bias