Chapter Nine Pretrial Motions, Hearings and Plea Negotiations

Chapter Nine Pretrial Motions, Hearingsand Plea Negotiations If criminals wanted to grind justice to a halt, they could do it by banding together and all pleading not guilty. It’s only because we have plea-bargaining that our criminal justice system is still in motion. — Dorothy Wright Wilson, former dean, Southern California Law Center, 1974

KEY WORDS Key terms to understand for this chapter… • Motion to Suppress Evidence • Negotiated Plea • Notice-of-Alibi Defense • Pretrial Discovery • Severance

OBJECTIVES After completing this chapter, you should be able to… • Discuss the defendant’s right to pretrial discovery. • Explain the various motions that may be made by counsel. • Identify and explain the importance of evidentiary motions. • Discuss the reasons for pretrial conferences. • Explain the rationale behind the requirement to provide notice of an alibi defense.

(cont.) OBJECTIVES After completing this chapter, you should be able to… • Discuss the prosecutor’s right to pretrial discovery. • List and explain the issues involved in plea bargaining.

INTRODUCTION • Prior to a trial, prosecution & defense each may request the trial judge take some action on a particular matter, usually referred to as motions. • may be made orally to the judge, but in most instancesin written form and filed with the appropriate court • Generally, the judge will hold a hearing to allow each side to present arguments for & against the motion. • One of the earliest motions that may be filed is for pretrial discovery.

Pretrial Right of Discovery • One of the responsibilities of attorneys for prosecution and defense is to exercise the right of discovery. • It is of comparatively recent origin, was unknown at common law and still not recognized in some states. • Right of discovery is the pretrial right of the adversary to inspect, review, and copy certain materials held by the opposition. • anticipated to be introduced as evidence during the trial

Pretrial Right of DiscoveryDefendant’s Right of Discovery • Pretrial discovery was created primarily for defendants. • to assist in case preparation & aid in obtaining a fair trial • The right would enable a defense attorney to better cross-examine witnesses for the prosecution. • and assist impeaching witnesses of questionable credibility • Right of pretrial discovery comes into being by court decisions or legislative action, and exercised two ways. • a defense oral request to examine material held in the case • written request by the defendant’s attorney in the form of a motion to produce the evidence held by the prosecution

Pretrial Right of DiscoveryWhat the Defendant May Inspect • Material & information a defendant may examine varies. • some states & the federal government are quite liberal • Rule 16 of the Federal Rules of Criminal Procedure is typical of the broader right of discovery by a defendant: • …Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildingsor places, or copies or portions thereof, which are in the possession, custody or control of the government, …intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.

Pretrial Right of DiscoveryDenial of the Right of Discovery • A few states have not granted right of pretrial discovery to a defendant in criminal matters. • alleging it to be a one-way street created for the defendant • It is also alleged the defendant already has advantages in a criminal trial because the prosecution must prove the defendant guilty beyond a reasonable doubt. • right of discovery would be an additional advantage • In states where pretrial discovery is not recognized, the defendant must rely on the preliminary hearing. • for any assistance received in case preparation

Pretrial Right of DiscoveryDenial of the Right of Discovery • Those arguing against permitting a defendant the rightof discovery often quote a statement made by Judge Learned Hand in the case of US v. Garison: • “While the prosecution is held rigidly to the charge, he [the defendant] need not disclose the barest outline of his defense.” • “Why in addition he should in advance have the whole evidence against him to pick over at his leisure, and makehis defense, fairly or foully, I have never been able to see.” • “What we need to fear is the archaic formalism and thewatery sentiment that obstructs, delays, and defeats the prosecution of crime.”

Two attorneys talk with judge in courtroom. Pretrial Right of DiscoveryProsecution’s Right of Pretrial Discovery • States recognizing right to pretrial discovery have granted little pretrial discovery right to the prosecution. • This tends to support the contention that the right of pretrial discovery is a one-way street. • A convincing argumentagainst pretrial discoveryby prosecution is that theright would compel thedefendant to be a witnessagainst himself or herself.

Pretrial Right of DiscoveryProsecution’s Right of Pretrial Discovery • One state supreme court has held the prosecution must prove the defendant guilty beyond reasonable doubt • and that any discovery by the prosecution that wouldlessen that burden is not permissible • This holding by that court has been highly criticized in legal circles as being too restrictive and without merit. • Rule 16 of the Federal Rules of Criminal Procedure grants to the government (the prosecution) almost the identical rights of pretrial discovery that are granted to the defendant.

Pretrial Right of DiscoveryProsecution’s Right of Pretrial Discovery • Several states and the federal government have adopted a requirement that a defendant advise the prosecution in advance of trial that an alibi defense is to be used. • most difficult to refute, as it usually comes late during the trial, catching the prosecution by surprise • Requirement that this information be furnished to the prosecution upon demand has received sanction of the US Supreme Court in Williams v. Florida. • Despite the Williams decision, a number of states have not passed legislation requiring a defendant to notify the prosecution that he/she plans an alibi defense.

Susan Smith enters the Moss Judicial Center courtroom in York, South Carolina for a mental competency hearing. Mrs. Smith was charged with two counts of murder in connection withthe deaths of her sons Alex, fourteen months, and Michael, three. Pretrial Right of DiscoveryProsecution’s Right of Pretrial Discovery • The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses. • and reveal their identity &submit them to cross-examination which which may furnish the State withrebuttal evidence • Such dilemma has never been thoughtan invasion against compelled self-incrimination.

Motion to Suppress Evidence • At common law, it was held any evidence assisting in determining the truth of what happened in a particular case was admissible during a trial. • followed for a number of years in spite of constitutional guarantees against unreasonable searches and seizures • Inadmissibility of unlawfully obtained evidence is known as the Exclusionary Rule. • The 1961 landmark case Mapp v. Ohio placed the Exclusionary Rule in effect for all the states. • since that decision, much use has been made of the motionto suppress evidence

Motion to Suppress EvidenceHearing to Suppress • The hearing to suppress evidence must be held prior to trial time in some jurisdictions, before a judge alone. • if the judge concludes the evidence was illegally obtained, he/she will suppress it or hold it is not admissible • if the judge believes the material was lawfully obtained, it may be introduced during the trial & the jury will give the evidence the weight to which they feel it is entitled • The hearing must be made prior to the trial because it is felt the trial judge should not stop midtrial to determine whether evidence was lawfully obtained. • in some jurisdictions

Motion to Suppress EvidenceHearing to Suppress • If evidence is inadmissible, the prosecuting attorney may decide to dismiss the charge if a conviction would not be possible without the suppressed evidence. • In jurisdictions where pretrial motion to suppress is not mandatory, many defense attorneys will not file a pretrial motion. • but will wait & object to introduction of the evidence atthe preliminary hearings • It is the prosecution’s responsibility to present testimony in an effort to prove that the evidence was lawfully obtained.

Motion to Suppress EvidenceGrounds for Evidence Suppression • Obtaining confessions and unreasonable searches and seizures are two areas that include numerous grounds for challenging the introduction of evidence. • confession obtained through the psychological pressureof threats or promises would be suppressed • search warrants may be improperly issued, or permissionfor consent searches involuntarily may be given • An officer exceeding the permissible area on a search incident to arrest provides grounds for a motion to suppress.

Courtroom scene with judge, defense, prosecution attorneys and court reporter. Motion to Dismiss Charges • After a complaint, information, or indictment has been filed against, facts are sometimes revealed that, in the interest of justice, demand that the charge be dismissed. • the action may be taken by the prosecutor and is known as “entering a nolle prosequi.” • Some jurisdictions don’t grantthe prosecuting attorney nolle prosequi authority. • a charge may be dismissed onlyby a judge, judicial motion, orprosecutor recommendation

Motion to Dismiss Charges • Dismissal by a judge on judicial or defense motion is not always a bar to further prosecutive action on the matter, particularly if the charge is a felony. • the prosecuting attorney may refile the charge • How many times this action may take place is not firmly established. • right to a speedy trial prevents too many dismissals and refilings from taking place

Motion for Continuance • Most state codes provide no continuance of criminal trial shall be granted except where the ends of justice require a continuance. • criminal cases are to be heard as soon as reasonablypossible, and given precedence over civil matters • codes also provide continuance shall not longer than required • Despite these provisions, no motion is made with greater frequency than the motion for a continuance. • particularly by the defense

Motion for ContinuanceGrounds for a Continuance • There are no specified grounds on which the continuance may be based, though justice requires continuance to obtain a material witness. • the side making request must present evidence on why the witness is material, and why the testimony is not available through any other witness • Continuances have been granted so defendants may obtain effective counsel, when a defendant is not physically able to attend the trial, or the defense attorney is ill or engaged in another trial

Motion for ContinuanceGrounds for a Continuance • A continuance will usually be granted for thirty to sixty days, after which a new request may be made. • many criminal trials are not heard for more than a yearafter the crime has been committed • When motion is to be made, reasonable notice must be given to the trial judge and the opposing side. • reasonable notice is difficult to determine • The defense makes frequent requests for continuances as they usually work to the advantage of the defendant. • possibilities of prosecution witnesses’ becoming unavailable and memories dulling increase with the passage of time

Judge lecturing attorneys. Motion for Severance of Offenses • Criminals often commit a series of crimes in a relatively short period of time. • A burglar may commit a number of burglaries withina few days or weeks, and if caught & charged, it is logical to try the offender on all charges at one time. • Most state laws permit a seriesof crimes in jurisdiction to becombined into one accusatorypleading. • in an accusatory pleading, eachcrime is referred to as a count

Motion for Severance of Offenses • If crimes are all similar, such as all robberies, or all burglaries, there is no doubt about consolidating them. • It has also been held that if the crimes are of a different nature but are part of the same transaction, scheme, or plan, they may be consolidated. • A crime of robbery and a crime of burglary could not be consolidated without being parts of the same transaction. • Having a series of crimes consolidated in one trial has the advantage of avoiding a defense in separate trials.

Motion for Severance of OffensesCross v. US • At times, a defendant will make a motion for a severance of offenses, on the premise that several counts in one trial is prejudicial. • As stated in Cross v. US: • “Prejudice may develop when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence.” • “If he testifies on one count, he runs the risk that any adverse effects will influence the jury’s consideration of the other” • “Thus he runs the risk on both counts, although he may benefit on only one.”

William Orville Douglas was a United States Supreme Court Associate Justice with a term lasting thirty-six years and 209 days, the longest-serving justice in the history of the Supreme Court. Motion for Severance of OffensesDrew v. US • In Drew v. US, the Court stated the following: • … justification for a liberal rule on joinder of offenses appears to be the economy of a single trial.” • The argument against joinder is that thedefendant may be prejudiced for one ormore …reasons” • “… the court must weigh prejudice tothe defendant caused by the joinderagainst …economy and expeditionin judicial administration.”

Motion for Severance of Offenses Motion for Severance • Most states hold that two or more defendants jointly charged with an offense must be tried jointly. • unless the judge feels separate trials should be granted • jointly trying codefendants promotes economy & efficiency • Defendants often file a motion for severance to avoid the possibility of prejudice. • Some jurisdictions hold that upon an allegation of prejudice, a defendant has an absolute right to a severance. • whether the trial is a court trial or a jury trial

Motion to Determine Competency • If the mental state of the defendant is in question at any time prior to or during trial, the defense counsel should make a motion for a hearing on competency. • insanity refers to the mental state at the time of the act • competency refers to mental state at time of the trial • A hearing may be ordered on competency if actions of the defendant would cause doubt in the judge’s mind. • Competency must be determined because a person cannot be tried, sentenced, or punished while insane. • The procedure of determining competency is referred to as both a hearing and a trial.

Motion to Determine Competency • Usually the hearing is conducted before a judge sitting alone, unless the defense demands a jury trial be held. • The competency hearing should not be confused with a trial on a plea of not guilty by reason of insanity; it has nothing to do with guilt or innocence. • it ascertains the defendant’s present mental capabilities • The test of competency determines the defendant’s present ability to understand the nature and purpose of the proceedings. • and measures capacity to assist in defense in a rational manner

Motion to Determine Competency • Once competency of the defendant is questioned, all prosecutive proceedings must be halted until the issue of competency can be determined. • If a competency hearing determines the defendant is presently sane, the prosecutive proceedings will commence again from the point where they stopped. • This is the case unless the trial on guilt or innocence was in progress and the trial judge dismissed the jury and declared a mistrial. • under those circumstances, the trial would be resumed from the beginning with a new jury

Pretrial Conference • Pretrial conferences are informal meetings, usually inthe judge’s chambers, between attorneys and the judge. • strong and weak points of the case are discussed in an effortto arrive at a settlement without going to trial • Attorneys may try to arrive at some sequence in calling witnesses, particularly professionals or expert witnesses. • The attorneys will attempt to agree, or to stipulate, to certain testimony. • facts having stipulation are brought to the jury at the appropriate time, and the jury considers those facts as though they had been presented in testimony during trial

Plea Negotiation • Plea negotiating, (plea bargaining) is agreement to reduce a charge, or receive a lesser sentence. • usually shortly after the initial appearance or arraignment, though it can continue up to the time a verdict is rendered • Some allege plea bargaining is advantageous to the state by saving time & money, and increasing efficiency and flexibility in the criminal process. • It has been criticized, as it allows a criminal to take advantage of the justice system by not being convicted and sentenced for the crime actually committed.

Plea NegotiationBenefits of Plea Bargaining • Although criticized, many prosecutors state acceptance of a negotiated plea is often for more justifiable reasons than lightening caseloads & clearing busy calendars. • In the past, plea bargaining was not discussed openly since it was considered to be unethical, if not illegal. • The secrecy of plea bargaining was eliminated by legislative action and court decisions. • Today plea bargaining is openly engaged in as part of the justice system.

Plea NegotiationThe Supreme Court and Plea Bargaining • Much of the change in viewpoint was brought about by Brady v. US, where the Supreme Court gave sanction to plea bargaining: • “…a guilty plea is a grave and so solemn act to be accepted only with care and discernment has long been recognized.” • “Central to the plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged” • “He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled ”

Plea NegotiationThe Supreme Court and Plea Bargaining • The Court further stated that even if a guilty plea were entered through some inducement of leniency, that plea could not be withdrawn at a later date if the plea had been freely and voluntarily given. • The standard of voluntariness of a guilty plea was set forth in the Brady decision. • Some states prohibit plea bargaining on serious felonies except under limited circumstances.

Plea NegotiationPleas to be Related to Offense Charged • It has been held a negotiated plea should be related to the crime charged in the accusatory pleading • but not confined to the one in the accusatory pleading • The negotiated plea may be to a lesser offense than the one in the accusatory pleading. • It is important the negotiated plea be to a related crime so a plea will reflect a true history of the crime. • Often if an accused awaiting trial on two or more unrelated indictments, a plea bargain will include an agreement to dismiss the other indictments.

Plea NegotiationWithdrawal of the Negotiated Plea • Statutes of states where negotiated pleas have been enacted usually provide that a negotiated plea of guilty or nolo contendere must be approved by both the judge and the prosecuting attorney. • a guilty plea may be withdrawn if the bargain is notcomplied with by the judge or the prosecuting attorney • Once the approval is given, the bargain must be complied with, or the defendant may also withdraw the guilty or nolo contendere plea. • true even though the defendant may not have been entirely honest in dealing with the court

Plea NegotiationWithdrawal of the Negotiated Plea • In People v. Johnson, for a negotiated plea of guilty, the judge promised the defendant the matter would be handled as a misdemeanor rather than as a felony. • and the defendant would be given probation • On discovering the defendant had concealed his true identity and criminal record, the judge sentenced the defendant to the state prison. • on appeal, judgment was reversed & the trial court directedto permit the defendant to withdraw the guilty plea

Plea NegotiationWithdrawal of the Negotiated Plea • The appellate court relied upon state statute providing: • “where such plea [negotiated plea] is accepted by the prosecuting attorney in open court and is approved by the court, the defendant …cannot be sentenced on such pleato a punishment more severe than that specified in the plea.” • In Johnson, the judge failed to inform the defendant of his right to withdraw the plea. • The Court held there was a serious misrepresentation by Johnson, so it was reluctant to create a right, for a defendant, to a specific performance of an original plea bargain rather than permit withdrawal of guilty plea.

SUMMARY Important topics for this chapter… • Both the prosecutor and the defense have a right to pretrial discovery. • The right of discovery was originally created primarily for the benefit of the defendant. • There are limitations on what the defendant or defense may inspect. • The defense has no right to look at the prosecutor's work product.

(cont.) SUMMARY Important topics for this chapter… • The defense has no right to examine the prosecutor's trial folder. • In a few states where the defendant's pretrial right of discovery is not recognized, the defendant must rely on the preliminary hearing for any assistance received in trial preparation. • In federal trials, the prosecutor has an almost identical right to pretrial discovery.

(cont.) SUMMARY Important topics for this chapter… • A motion to suppress evidence is used to determine the admissibility of evidence prior to trial. • Whether to grant a motion for a continuance rests with the trial judge. • There are no specified grounds on which a continuance may be based. Justice may require that a continuance be granted to obtain a material witness. • A motion for the severance of offenses or defendants must be made before the start of the trial.

(cont.) SUMMARY Important topics for this chapter… • If the mental state of the defendant is in question, during the pretrial the defense may request a competency hearing. • A plea bargain is an agreement between the prosecutor and the defense. • The Supreme Court has sanctioned plea bargaining. • In some states, like California, there are statutory restrictions on plea bargaining.

(cont.) SUMMARY Important topics for this chapter… • A guilty plea based on a plea bargain may be withdrawn if the bargain is not complied with.

Chapter End

Chapter Nine Pretrial Motions, Hearings and Plea Negotiations