Pretrial and Trial Procedures

1. Chapter Ten Pretrial and Trial Procedures

2. Learning Objectives • Discuss the procedures following arrest • List a variety of bail systems • Discuss the history of bail reform • Define pretrial services • List the differences between the indictment process and the information process

3. Learning Objectives • Discuss the purpose of arraignment • Discuss the pros and cons of plea bargaining • Explain the roles of the prosecutor, defense attorney, judge, and victim in the plea negotiation • Explain the legal rights of the accused at trial • Summarize the trial process

4. Procedures Following Arrest • Many important decisions about what happens to a defendant are made prior to trial • Hearings, such as before the grand jury and the preliminary hearing, are held to determine if probable cause exists to charge the accused with a crime • If so, the defendant is arraigned, enters a plea, is informed of his constitutional rights, and is considered for pretrial diversion

5. Bail • Bail • A form of security, usually a sum of money, that is put up or exchanged to secure the release of an arrested person before the trial begins • Majority of criminal defendants are released on bail prior to trial • The Eighth Amendment • Prohibits both cruel and unusual punishment and excessive bail

6. Thinking Point • Although Stack v. Boyle did not establish an absolute right to bail, it did set guidelines for state courts to follow. If a crime is bailable, the amount set should not be frivolous, unusual, or beyond a person’s ability to pay. • Do you agree with these guidelines as set forth in Stack v. Boyle? • In what type of cases would you refuse bail if you were the sitting judge? Why?

7. Bail • Alternative Bail Release Mechanisms • Police field citation release • Police station house citation release • Police/pretrial jail citation release • Pretrial/court direct release by pretrial bail program • Police/court bail schedule

8. Bail • Types of Bail • Full cash bail • Deposit bail • Surety bail (10% with rest of bail covered by insurance company) • Conditional bail (rules to follow like no contact with a witness) • Unsecured bond (no collateral) • Release on recognizance

9. Type of Pretrial Release

10. Bail • Pretrial detainees • People who are either denied bail or cannot afford to post bail before trial and are kept in secure confinement • More likely to be convicted and get longer sentences than those who commit similar crimes but are released on bail

11. Bail • Bail has been heavily criticized as one of the most unacceptable aspects of the criminal justice system • Bail reform • Has resulted in the use of release on recognizance to replace money bail for non-dangerous offenders • Also efforts to tighten bail restrictions on the most dangerous offenders

12. Rearrested for a New Felony

13. Pretrial Services • Programs that provide a number of services to those released into the community prior to their trial dates • Determine which defendants can safely be released on bail pending trial • Gather and verify information about arrestees • Assess likelihood of failure to appear/arrest • Provide supervision for defendants

14. Charging the Defendant • The Grand Jury • Presentment • Indictment • Reforming the grand jury?

15. Charging the Defendant • The Preliminary Hearing • Magistrate • Evidence • Cross-examination • Waiving the preliminary hearing

16. Charging the Defendant

17. Charging the Defendant • At arraignment the defendant is informed of the charges against him/her and appoints counsel if one has not yet been retained • A plea is entered at arraignment: • Guilty • Not guilty • Nolo contendere

18. Plea Bargaining • Most cases never go to trial but are bargained out of the system • Bargains can be made for a plea of guilty in exchange for: • A reduced sentence • Dropping charges • Lowering charges • Substituting a negative charge for one with more socially acceptable connotations

19. Thinking Point • A typical plea agreement results in a reduced charge or a favorable sentencing recommendation. Another example of a plea agreement, has a defendant charged with a sexual offense agreeing to undergo surgical castration. This is referred to as an example of “ad hoc plea bargaining.” • Do you believe this type of plea bargaining is reasonable? Why or why not? • Is this fair? Why or why not?

20. Plea Bargaining • Pros of Plea Bargaining • The overall costs of the criminal prosecution are reduced • The administrative efficiency of the courts is greatly improved • The prosecution can devote more time to more serious cases • The defendant avoids possible detention and an extended trial and may receive a reduced sentence • Resources can be devoted more efficiently to cases that need greater attention

21. Plea Bargaining • Cons of Plea Bargaining • Defendants waive constitutional right to trial • Allow dangerous offenders to receive lenient sentences • Danger that an innocent person will be convicted of a crime • Prosecutors are given a free hand • Possible that innocent persons will admit guilt • A guilty-plea culture

22. Plea Bargaining • The Problem of False Confessions • Why do innocent people confess? • Duress • Coercion • Intoxication • Diminished capacity • Mental impairment • Ignorance of the law • Fear of violence • The actual infliction of harm • The threat of a harsh sentence • Misunderstanding the situation

23. Plea Bargaining • Legal Issues in Plea Bargaining • Effective assistance of counsel • Pleas must be made voluntarily • Prosecutor promises must be kept • Defendant promises must be kept • Due process rights must not be violated • Guilty pleas from persons who claim innocence is valid • Use of plea bargaining statements at trial • Flawed advice from a defense attorney that leads to rejection of a plea deal can for the basis of an ineffective assistance of counsel claim

24. Plea Bargaining • Few states have placed limits on the discretion of prosecutors in plea bargaining situations • A court will not accept a guilty plea unless: • The defendant has been properly advised by counsel AND • The court has determined that the plea is voluntary and has a factual basis

25. Plea Bargaining • The role of the defense counsel in plea bargaining • Advisory • Explanatory • Informative

26. Plea Bargaining • Although plea bargaining has been criticized, efforts to control it have not met with much success • Jurisdictional safeguards • Judge questions defendant • Defense counsel is present • Open discussion of plea • Full and frank information about defendant

27. Pretrial Diversion • Diversion programs • Offering a criminal defendant the ability to enter a treatment program instead of a criminal trial continue to be used throughout the United States • Most diversion programs have a common goal • To constructively bypass criminal prosecution by providing a reasonable alternative in the form of treatment, counseling, or employment programs

28. Thinking Point • Pretrial Diversion • What types of crimes do you think pretrial diversion programs should be used for? • Are there specific offenses where you think pretrial diversion should *always* be the only option? Defend your position. • Are there specific offenses where you think pretrial diversion should *never* be an option? Defend your position.

29. The Trial • An open and public hearing designed to examine the facts of the case brought by the state against the accused • Most formal trials are heard by a jury, although some defendants request a bench trial

30. Legal Rights During Trial • Impartial judge • Right to be competent • Confront witnesses • Compulsory process • Impartial jury • Counsel • Speedy trial • Public trial • Convicted by proof beyond a reasonable doubt

31. The Trial • Voir dire • The process in which a potential jury panel is questioned to select jurors • Peremptory challenge • The dismissal of a prospective juror by either the prosecution or the defense for unexplained, discretionary reasons

32. The Trial • Challenge for cause • The dismissal of a prospective juror by either the prosecution or the defense because s/he is biased, has prior knowledge, or for another reason is unable to render a fair and impartial judgment

33. The Trial • Jury nullification • A jury’s refusal to render a verdict according to the law and fact regardless of the evidence presented • Imposition of the sentence is the responsibility of the trial judge • The defense may petition an appellate court to review the procedures used during the trial once a verdict has been rendered

34. The Trial Process • An established order of steps is followed throughout a criminal trial: • Selection of a jury • Opening statements • Prosecutor’s case • Criminal defense • Closing arguments • Instructions to the jury • Deliberation and verdict • Sentence • Appeals