Chapter 8 Pretrial and Trial Procedures

1. Chapter 8 Pretrial and Trial Procedures

2. Learning Objectives • Identify why the pretrial stage of justice is so critical. • Understand the bail process. • Discuss the history, direction, and reasons behind bail reform • Differentiate the 2 main mechanisms for charging defendants (grand jury indictment or prosecutor’s information). • Know about pleas and plea negotiation. • Discuss the pros and cons of plea bargaining. • Contrast and compare the role of judge, prosecutor, defense counsel, and victim in the plea bargaining process. • Know what is meant by the term “pretrial diversion.” • Describe the goals and purpose of the trial process. • Discuss the legal rights at trial. • Explain the trial process.

3. Bail • Security provided to the court that the defendant will appear at every stage in the CJ process • Failure to appear results in forfeiture of bail is forfeited and confinement in jail until court appearance • Eighth Amendment does not guarantee bail, but prohibits excessive bail • Stack v Boyle - bail is excessive when it exceeds an amount reasonably calculated to ensure the defendant’s appearance at trial

4. Bail Release Mechanisms • Police field citation release – released by officer on promise to appear • Police station house citation release - released after being brought to station house • Police/pretrial jail citation release - released after being booked in jail • Direct release programs - released without direct judicial involvement • Police/court bail schedule - released after posting bail as set forth in schedule

5. Pretrial Release by Type of Bail Received Surety bond Recognizance Conditional Type of pretrial release Deposit bond Unsecured bond Full cash bond 0 10 20 30 40 50 Percentage of released defendants

6. Six Types of Bail

7. Bail Issues • Discriminatory against the poor • Costly for government • Unfair – higher proportion of detainees receive longer sentences than people on bail • Dehumanizing • Racial & ethnic disparity

8. Bondsmen and Bounty Hunters • Employed by bonding agencies to find and return bail jumpers • Have legal powers to arrest and detain which vary from state to state

9. Bail Reform • Manhattan Bail Project • Bail Reform Act of 1984

10. Preventive Detention • Held in jail based on belief they will commit new crimes or flee the jurisdiction • Critics believe it is punishment prior to conviction

11. Pretrial Services • Provide information for judges to make release decisions • Assess likelihood of defendant failing to appear or being rearrested • Monitor conditions of release or provide intensive supervision • Provide special services for mentally ill • Provide intense direct supervision

12. The Indictment Process and the Grand Jury • Incorporated in the Fifth Amendment • Power to act as independent investigating body • After a crime presentment is issued • Responsible for passing down indictment if evidence is found - no bill if evidence is not found

13. Critiquing the Grand Jury • Closed and secret deliberations • Rubber stamp for the prosecutor • Prosecutor need not reveal evidence that might exonerate the accused • Transcripts remain secret

14. The Information Process and the Preliminary Hearing • Open hearing conducted before a judge • Rules of evidence apply • Judge makes decision on whether to bind over for trial • Defendant may waive the hearing

15. Charging the Defendant with a Crime Misdemeanor Brief judicial hearing and trial Felony • Preliminary Hearing • Some states use hearing as step to trial • Others use hearing to bind over to a grand jury. • Product of preliminary hearing is “information.” • Standard of proof is probably cause. • Grand Jury • Some states refer defendant solely to grand jury. • Other states have option of bypassing preliminary hearing and referring to grand jury. • Powers include investigation and charging • Witnesses presented by prosecution; defendant not present and doesn’t testify. • Product of grand jury is “indictment.”

16. Arraignment • Occurs after the indictment or preliminary hearing • Defendant informed of charges and has counsel appointed if necessary • Plea is entered

17. The Plea • Guilty • Not guilty • Nolo contendere

18. Plea Bargaining • Exchange of prosecutorial and judicial concessions for guilty plea • Initial charges may be reduced • Prosecutor may promise to recommend lenient sentence • Prosecutor may alter charge

19. Benefits of Plea Negotiation • Costs of prosecution reduced • Efficiency of courts improved • Defendant avoids lengthy pretrial incarceration and may receive a reduced sentence • Diversion of resources

20. Opposition to Plea Negotiation • Encourages defendants to waive their right to a trial • Dangerous offenders may receive lenient sentences • Innocent people may plead guilty if they believe the court is biased • Prosecutors may compel a guilty plea • A “guilty plea culture” develops • Guilty plea to “wrong” offense • Can encourage prosecutorial misconduct

21. Legal Issues in Plea Bargaining • Defendants entitled to effective assistance of counsel • Must be voluntary and without pressure • Prosecutor and defendant must honor promises • Innocents can plead guilty to gain a lenient sentence • Statements made during negotiations may be used against defendant at trial

22. The Role of Defense Counsel • Advisory role • Ensure defendant understands the process and the guilty plea • Ensure defendant understands alternatives • Communicate all offers to client

23. The Role of the Judge • Judicial participation is not advisable

24. The Role of the Victim • Critics argue process is “victim driven” • Others say victims relegated to secondary role • No right to veto a plea bargain • Some states can give opinion to prosecutor

25. Plea Bargaining Reform • Desire for more visibility • Guidelines would provide consistency • Banning plea bargaining

26. Pretrial Diversion • Remove cases from the formal CJ process • Avoids stigma of conviction • Reduces costs to the system • Alleviates jail/prison overcrowding • Danger of “net-widening” • May result in reduced recidivism for some offenders

27. The Trial

28. Legal Rights During Trial • Impartial judge • Competent at trial • Confront witnesses • Compulsory process • Impartial jury • Counsel at trial • Speedy trial • Public trial • Convicted by proof beyond a reasonable doubt

29. Standards of Proof

30. The Steps in a Jury Trial

31. Jury Selection • Venire • Voir dire • Challenge for cause • Peremptory challenges

32. Opening Statements • Prosecutor makes first opening statement, then defense attorney • Statement provides an overview of the case • No prejudicial remarks, inflammatory statements, or irrelevant facts

33. Prosecution’s Case • Direct examination • Cross examination • Witnesses restricted to factual information • Only expert witnesses can offer opinions

34. The Criminal Defense • Defendant under no obligation to present evidence as burden of proof is on the prosecution • Primary concern is whether the defendant should testify • After the defense rests prosecution is given the opportunity for rebuttal, followed by the defense’s surrender rebuttal

35. Closing Arguments • Selectively review facts and evidence • Provides inferences from evidence • Cannot refer to matters not in evidence

36. Instructions to the Jury • Judge provides information about the law • Improper instructions are often the basis for an appeal

37. Deliberation and Verdict • Hung jury • Jury nullification

38. The Sentence • Usually by the trial judge but in some jurisdictions jury may impose or make recommendation • Judges have much discretion in state courts • Judge considers information in pre-sentence investigation report (PSI)

39. Appeals • Request for an appellate court to determine if correct procedures were followed • Writ of habeas corpus is the primary means for review in federal court