STREET LAW

1. UNIT 2: Criminal Law and Juvenile Justice Chapter 13 Criminal Justice Process: Proceedings Before Trial STREET LAW

2. After the arrest of a criminal suspect, but before the criminal case reaches the courtroom, several preliminary proceedings take place • Most of these proceedings are standard for every case

3. Depending on the specific circumstances & the result of these preliminary proceedings, the charges may be dropped or the defendant may plead guilty • If either of these two things occurs, there will be no trial

4. Proceedings Before Trial

6. An important pretrial issue is the precise point at which the defendant is entitled to representation by counsel • Should the defendant have an attorney brought to the place of his or her arrest? • The Court has held that the accused is entitled to counsel at any “critical stage of the prosecution,” such as the preliminary hearing or arraignment

7. Defendants are entitled to an attorney at a post-indictment lineup, but not a pre-indictment lineup, or when a handwriting sample is taken • In practice, poor defendants often have an attorney appointed for them at the bail hearing or initial appearance

8. Booking and Initial Appearance • After an arrest, the accused is normally taken to a police station for booking • Booking is the formal process of making a police record of the arrest • The accused person first provides some basic information for identification purposes & then is fingerprinted & photographed

9. Some interesting court cases about pretrial issues have dealt with taking fingernail clippings, handwriting specimens, and blood samples from defendants • The cases raise the question of whether or not such actions violate a defendant’s right to be free from self-incrimination & from unreasonable searches & seizures

10. The U.S. Supreme Court has held that these procedures do not violate the self-incrimination clause of the 5th Amendment because they do not extract evidence of a testimonial or communicative nature • However, the Court found pumping a defendant’s stomach against his will in order to recover drugs swallowed during a police raid to be “shocking to the conscience” & unreasonable

11. Within a short time of arrest & booking, the accused must appear before a judge • At this initial appearance, the judge explains the defendant’s rights & advises him/her of the exact nature of the charges • The defendant has an attorney appointed or is given the chance to obtain one • At this stage, the judge decides if the defendant will be released on bail or remain in jail while awaiting trial

12. Misdemeanor • Asked to enter a plea of guilty or not guilty • Felony • Informed of the charges • Advised of rights • Does not enter a plea until later (felony arraignment) • May be entitled to a preliminary hearing to determine if there is probable cause to believe that a crime was committed & that the defendant committed it

13. The most important of the initial appearance is deciding whether the defendant will be released from custody & if so under what conditions

14. Bail & Pretrial Release • Bail is an amount of money that an arrested person puts up in order to be released from jail while waiting for trial • The purpose of bail is to assure the court that the defendant will return for trial • If the person fails to return for trial, the court keeps the money • A constitutional right to bail is recognized in all but the most serious cases—such as murder

15. The 8th Amendment right to bail is based on the notion that a person is presumed innocent until proven guilty & that “excessive bail shall not be required” • Because poor people have greater difficulty raising bail money than others, they are more likely to remain in jail during the pretrial period (before trial or conviction) • This makes it more difficult for them to prepare for trial, & they sometimes must wear prison clothes in court • Wealthy defendants, including some drug dealers, are more likely to have bail funds

16. Are the poor treated unfairly by the bail system? • How might wearing prison clothes in court affect the outcome of a trial? • How else might the system try to ensure that defendants show up for their trials?

17. To be eligible for release on personal recognizance, or personal bond, the defendant must promise to return & must be considered a low risk • In determining the likelihood of the defendant’s return, judges consider factors such as • the nature & circumstances of the offense • the accused’s family & community ties • financial resources • employment background • & prior criminal record

18. Courts may set a variety of nonmonetary conditions designed to ensure the return of the defendant • Placing the defendant in the custody of a 3rd party • Requiring the defendant to maintain or get a job • To reside at a certain address • To report his/her whereabouts on a regular basis

19. Releasing people who have been arrested for serious crimes before their trials may cause problems—even though they have not yet been found guilty of a crime • A large # of defendants commit crimes while out on bail

20. Under a federal criminal law passed in 1984—the Bail Reform Act—persons charged with federal crimes may be held without bail if they are found to be “dangerous to the community” • There must be a hearing; the person being denied bail must have been charged with a violent crime or a drug offense; the person must have been convicted of a felony more than once • The law presumes dangerous a person arrested for a drug offense that carries a possible sentence of more than ten years • Someone who previously committed a violent crime while released pending trial is also presumed dangerous

21. Supporters of pretrial release say • It prevents punishment prior to conviction • Gives defendants the freedom to help prepare their cases • The U.S. justice system rests on the presumption that defendants are innocent until proven guilty—setting high bail or holding a person in jail before trial goes against that presumption

22. Defense lawyers in a 1987 U.S. Supreme Court case challenged the constitutionality of the Bail Reform Act • They charged that holding people without bail before their trial amounted to punishment before any finding of guilt • The Court rejected this argument, and the law remains in effect in federal courts today

23. More than 20 states allow this type of “preventive detention” for defendants considered to be a threat to the community • Many judges are criticized for imposing de facto preventive detention by setting high bail for indigent defendants

24. A challenging bail problem involves people mistaking the nature of bail • In several cases, people—such as immigrants who may not have understood the language or the culture—have paid bail, believing it to be payment of the fine (or the required bribe to the judge) & then have been confounded when arrested for failure to appear at trial

25. Information • A defendant will proceed to trial for a misdemeanor based on a prosecutor’s information • The information details the nature & the circumstances of the charges brought against a defendant • It is a formal criminal charge filed with the court by the prosecutor without the aid of a preliminary hearing or a grand jury • It is based on the information collected during the initial investigation of the case that suggests that the defendant in custody committed the crime • Many people confuse the terms information, preliminary hearing, and grand jury [chart]

26. Preliminary Hearing • A preliminary hearing is a screening process used in felony cases to decide if there is enough evidence to make the defendant stand trial • The prosecutor is required to establish that a crime probably has been committed & the defendant did it • If enough evidence supports the prosecutor's case, the defendant will proceed to trial • If the judge finds no probable cause, the case may be dismissed—but this does not necessarily mean that the case is over—the prosecution may still submit the case to a grand jury for further review of the charges

27. The Grand Jury System • A grand jury is used by many states in place of the prosecutor's information or a preliminary hearing • It is a group of 16 to 23 people who determine whether there is enough evidence to show that a person has committed a crime &should go to trial • The 5th Amendment requires that before anyone can be tried for a serious crime in federal court, there must be a grand jury indictment

28. Only about 20 states regularly use grand juries instead of a preliminary hearing to determine the probability that a particular defendant committed the alleged crime • Some states utilize both procedures

29. The prosecution controls the presentation of witnesses & evidence • Only the prosecutor submits evidence to the grand jury • A judge is not present & rules of evidence do not apply • The defense attorney is not allowed in the grand jury room, but can wait outside • During proceedings, the defendant can leave the room to obtain advice from his or her attorney • Grand juries sometimes choose not to indict because there is not enough evidence to support the charges

30. As with preliminary hearings, many criticize the grand jury system • Some feel that grand juries are rubber stamps for prosecutors • Proponents of grand jury reform feel that the media often shape grand juries’ opinions & cause them to indict despite lack of evidence

31. Proponents of the grand jury system see a legitimate refusal to indict as citizens protecting their peers from oppressive government action • Grand juries may serve a particularly useful role in political corruption cases, where the prosecution (from one political party) may be viewed as “out to get” a politician (from another party) • In these cases, the grand jury may refuse to indict the potential victim-politician

32. In 1998, the U.S. Supreme Court ruled on discrimination in the makeup of the grand jury • In that case, a white defendant had been indicted by a grand jury for the murder of another white person • The defendant proved that no African American had served as a grand jury foreperson in that judicial district for the last 17 years, suggesting that the grand jury process was unfair

33. In this case the Court extended protection against racial discrimination in the composition of petit juries to include grand juries as an element of due process & receiving a fair trial

34. Felony Arraignment & Pleas • After an indictment or information is issued, the defendant must appear in court to enter a plea • If the defendant pleads guilty, the judge will set a date for sentencing • If the defendant pleads not guilty, the judge will set a date for trial & ask whether the defendant would like a trial by jury or a trial before a judge alone (a “bench trial”)

35. When a defendant first appears in court, he or she almost always pleads not guilty • This occurs even when the defendant will later agree to plead guilty • The not guilty plea, however, gives the defense attorney time to make sure that any guilty plea is based on an informed choice & may make it possible for the defendant to plea-bargain with the prosecutor • Plea bargaining often allows the defense attorney to work out the best deal possible for the defendant

36. NoloContendereis a plea in which the defendant does not admit guilt but also does not contest the charges • It is equivalent to pleading guilty • The only advantage of this plea to the defendant is that it can’t be used as evidence later in a civil trial for damages based on the same set of facts

37. Pretrial Motions: The Exclusionary Rule • A motion is a formal request that the court make a ruling or take some other action • An important preliminary proceeding is the pretrial motion • Prior to trial, a defendant may file motions seeking to have the case dismissed or to obtain some advantage or assistance in preparing the case

38. Common motions include: • Motion for discovery of evidence: a defendant's motion to obtain certain evidence from the prosecution before trial • Motion for a continuance: a request for more time to prepare the case • Motion for change of venue: a request for the trial to be held in a different location • Motion to suppress evidence: a motion that certain evidence should be excluded at the trial

39. The 4th Amendment protects citizens against “unreasonable searches & seizures” by the gov. • The U.S. Supreme Court interpreted the amendment as requiring an exclusionary rule • This rule states that any evidence illegally seized by police can’t be used to convict the accused at trial • It also applies to evidence obtained from illegal questioning of the accused • This leads to the motion to suppress evidence by the defense

40. The exclusionary rule has been used in federal courts since 1914 • The U.S. Supreme Court held in Mapp v. Ohio (1960) that the exclusionary rule was applicable to the states • Thus, illegally seized evidence is not allowed at state trials • Ms. Mapp was convicted of “knowingly having had in her possession & under her control certain lewd & lascivious books, pictures, & photographs . . . “

41. The police “unlawfully seized these items during an unlawful search” of Ms. Mapp’s home following a forced entry into her home • Additionally, the existence of a search warrant for Ms. Mapp’s home was in question

42. The exclusionary rule does not prevent the arrest or trial of a suspect • In some cases it does mean that people who committed a crime might go free • When an important piece of evidence is excluded from the trial, the prosecutor may not have enough other evidence to obtain a conviction

43. In 1988, the U.S. Supreme Court held that evidence initially discovered during an unlawful, warrantless search may be used in court if the same evidence is rediscovered by a subsequent lawful search • This was another step toward limiting, while not revoking, the impact of the exclusionary rule on criminal prosecutions

44. In 1989, the Court reaffirmed the breadth of the exclusionary rule • Under certain circumstances, an exception to the rule allows prosecutors to introduce illegally obtained evidence for the limited purpose of impeaching (calling into question) the defendant’s credibility

45. The Illinois Supreme Court wanted to expand the exception to include defense witnesses • 5 members of the U.S. Supreme Court rejected Illinois’s expansion • Justice Brennan, writing for the U.S. Supreme Court, stated that an expanded impeachment exception would deter defendants from calling witnesses who may otherwise offer important evidence • This case seems to indicate that the U.S. Supreme Court was not interested in significantly curtailing or overruling the exclusionary rule

46. The exclusionary rule applies not only to illegally obtained evidence from searches (4th Amendment) but also to confessions obtained in violation of the Miranda rules (5th & 6th Amendments)

47. Judicial integrity is the idea that courts should not be parties to lawbreaking by the police • Deterrence means that police will be less likely to violate a citizen’s rights if they know that illegally seized evidence will be thrown out of court

48. As a practical matter, police are sometimes more concerned with arrests than with convictions • They may make arrests primarily to seize contraband, gather information, or disrupt criminal activity—regardless of whether a suspect can be convicted of a crime • Sometimes mistakes can be made

49. Plea Bargaining • The plea bargaining process is often used to obtain guilty pleas before the trial begins • Most criminal cases never go to trial because most defendants plead guilty beforehand • In a plea bargain, the accused often will agree to plead guilty in exchange for a somewhat reduced sentence • They can often times plead guilty to a less serious charge or to get a lighter sentence

50. Plea bargaining is sometimes involved in pretrial diversion efforts whereby defendants can avoid prosecution by enrolling in certain special programs • For example, for first offenders, alcoholics, narcotics addicts, unemployed persons, etc.