Unit 6: Pre-Trial Procedures

1. Unit 6: Pre-Trial Procedures PS-LCRP-10. Students will explore the roles of each participant in the pretrial process. a. Identify each participant in the process. b. Distinguish between each pretrial stage. c. Identify rationales for how prosecutors choose criminal charges. d. Determine appropriate constitutional challenges for given pretrial scenarios. e. Debate the plea bargaining process. EQ: What happens between the time a suspect is arrested and the trial begins?

2. Plea Bargaining Debate Monday EQ: What happens between the time a suspect is arrested and the trial begins?

3. Prosecutor

4. Role of the Prosecutor • Prior to Arrest – often in federal system, and occasionally locally, investigators and prosecutors collaborate • Assist with obtaining warrants • Provide legal advise on how investigation is conducted EQ: What happens between the time a suspect is arrested and the trial begins?

5. Role of the Prosecutor • After Arrest - Review police reports to determine: • Evidence available to establish each element of crime • Violations of Fourth or Fifth Amendment • Credibility of potential witnesses • Likelihood witnesses will be available for court appearances EQ: What happens between the time a suspect is arrested and the trial begins?

6. Role of the Prosecutor • Other factors considered • Attitude of public toward this type of case • Severity of offense versus other cases pending • Likelihood of winning the case • Decide how many charges to file EQ: What happens between the time a suspect is arrested and the trial begins?

7. Decision to Charge Prosecutor must consider many factors when deciding what charges to file Such as: Evidence to establish each element of the crime EQ: What happens between the time a suspect is arrested and the trial begins?

8. Decision to Charge Are there violations of suspect's rights that will make some of the evidence inadmissible? Are the victim and eye witnesses credible? What evidence will be excluded because of the Hearsay Rule? other problems with evidence? EQ: What happens between the time a suspect is arrested and the trial begins?

9. Decision to Charge • Jurisdiction of court • Geographical • Subject matter • Venue • Statute of limitations EQ: What happens between the time a suspect is arrested and the trial begins?

10. Decision to Charge • Does Double Jeopardy bar filing any of the charges? • What degree of the crime should be charged? • If more than one person committed the crime, should the suspects be charged jointly or separately? EQ: What happens between the time a suspect is arrested and the trial begins?

11. Decision to Charge Will filling additional charges facilitate plea bargaining? Should a longer sentence be sought because of the defendant's prior convictions? EQ: What happens between the time a suspect is arrested and the trial begins?

15. Pretrial Stages

16. Arraignment Arraignment is normally the first court appearance after the charges are filed EQ: What happens between the time a suspect is arrested and the trial begins?

17. Arraignment Procedures at the arraignment: Defendant has the right to be present in person Defendant will be given a copy of the complaint Judge will advise defendant of right to counsel EQ: What happens between the time a suspect is arrested and the trial begins?

18. Arraignment Procedures at the arraignment: Screening for public defender Continuance may be granted if defendant needs time to hire an attorney EQ: What happens between the time a suspect is arrested and the trial begins?

19. Interview with Client • Establish Rapport – show interest • Agree on Fee – most upfront! • Advise all rights, warn not to talk • Trust is priority • Treat respectfully – walk in their shoes • Explain attorney-client privilege • Attempt to accommodate needs • Explain role of attorney and CJS overall EQ: What happens between the time a suspect is arrested and the trial begins?

20. Interview with Client Explain timeline Get extensive bio – in book Warn of snitches Counsel clients emotional needs Amsterdam Card – rights EQ: What happens between the time a suspect is arrested and the trial begins?

21. Getting Story Straight Start by letting them tell whole story Try to use clients perspective Get details and clear up timeline TAKE NOTES! Reiterate the Attorney-Client Privilege Avoid Cross-Exam. - unless blatant lies EQ: What happens between the time a suspect is arrested and the trial begins?

22. Post-Arraignment Actions Get client’s story Establish decision-making authority Arrange Translator – non family, no ties to government EQ: What happens between the time a suspect is arrested and the trial begins?

23. Probable Cause Hearing Purpose • Probable cause hearing is conducted to determine whether there is probable cause to hold the suspect in custody pending trial • Hearing must be held within 48 hours of arrest except in an emergency such as a natural disaster which closes the courts. EQ: What happens between the time a suspect is arrested and the trial begins?

24. Probable Cause Hearing Sworn testimony is presented (witnesses, affidavits or police reports signed under oath) to establish probable cause to detain defendant. EQ: What happens between the time a suspect is arrested and the trial begins?

25. Probable Cause Hearing If judge determines that there is probable cause the defendant may be held in custody pending trial. The defendant must be released if the judge does not find probable cause has been established. EQ: What happens between the time a suspect is arrested and the trial begins?

26. Preliminary Hearing Purpose • Judge hears testimony in open court to determine if a prima facie case has been established for each felony charged • Preliminary hearing is usually held within two weeks after arraignment unless defense agrees to continuance EQ: What happens between the time a suspect is arrested and the trial begins?

27. Preliminary Hearing What Prosecutor Does Presents evidence to establish prima facie case for each element of every felony in the complaint Calls witnesses and conducts direct examination Cross examines witnesses called by defense EQ: What happens between the time a suspect is arrested and the trial begins?

28. Grand Jury • Fifth Amendment right to indictment by grand jury in cases involving capital offenses and infamous crimes • Only applies to criminal trials in federal courts • Indictment is not required for cases involving only misdemeanors • States are free to enact laws authorizing use of preliminary hearing instead of indictment EQ: What happens between the time a suspect is arrested and the trial begins?

29. Grand Jury Prosecutor who takes case to grand jury seeks an Indictment. Grand jury investigates case on its own and returns a Presentment. Grand juries may also hear a case at the direction of a judge. EQ: What happens between the time a suspect is arrested and the trial begins?

30. Grand Jury Pool from which grand jurors are drawn are usually same as trial jury Grand jurors usually serve a fixed term Grand jury is usually larger than trial jury; historically it had 23 members EQ: What happens between the time a suspect is arrested and the trial begins?

31. Grand Jury • Not all members are required to be present when every case is presented • State law sets number of votes required to return indictment • TRUE BILL - sufficient evidence to merit prosecution • NO BILL - charges rejected and may be filed again EQ: What happens between the time a suspect is arrested and the trial begins?

32. Pre-Trial Release Bail Not granted in capital cases Traditionally granted if defendant is considered likely to appear in court as scheduled EQ: What happens between the time a suspect is arrested and the trial begins?

33. Pre-Trial Release EQ: What happens between the time a suspect is arrested and the trial begins?

34. Diversion • Programs divert defendants from the criminal justice system • Most diversion programs are designed for first offenders • Diversion usually focuses on counseling programs • Program are designed for specific types of offenders EQ: What happens between the time a suspect is arrested and the trial begins?

35. Diversion • Attending counseling sessions is mandatory • Completion of diversion program usually entitles defendant to dismissal of the charges and/or expunging arrest record • Prosecutor may take case to trial if court rules defendant failed the diversion program EQ: What happens between the time a suspect is arrested and the trial begins?

36. Pre-Stages Review

37. Potential Challenges Pretrial Stages

38. Double Jeopardy • Needs official court records indicating defendant has prior conviction or acquittal on crime charged or greater/lesser included offense. EQ: What happens between the time a suspect is arrested and the trial begins?

39. Lack of Subject Matter Jurisdiction • Must show state law indicating the court where the pleadings were filed does not have authority to handle this type of case. EQ: What happens between the time a suspect is arrested and the trial begins?

40. Statute of Limitations Compare date complaint states crime occurred with date charges were filed to determine if statute of limitations for specific crimes expired before case was filed. EQ: What happens between the time a suspect is arrested and the trial begins?

41. Lack of Speedy Trial • Must show delay after indictment or filing charges was detrimental to defendant's case. Factors considered: • length of delay • defendant has asserted right to speedy trial • no valid reason for delay • defendant's case was prejudiced by delay EQ: What happens between the time a suspect is arrested and the trial begins?

42. Failure to State a Cause of Action Challenges wording of pleadings: claims no crime was committed even if defendant committed the acts alleged. EQ: What happens between the time a suspect is arrested and the trial begins?

43. Challenges to Evidence by Defense EQ: What happens between the time a suspect is arrested and the trial begins?

44. Exclusionary Rule and Fruit of the Poison Tree Doctrine Evidence derived from illegally obtained evidence is not admissible at trial Time and intervening circumstances may result in the taint of the initial illegal act being removed. EQ: What happens between the time a suspect is arrested and the trial begins?

45. Exceptions to the Exclusionary Rule “Good faith” exception Inevitable Discovery Independent Source “Public Safety” exception EQ: What happens between the time a suspect is arrested and the trial begins?

46. Challenge to Validity of Warrant False information used to obtain warrant Evidence Considered: Whether officers knowingly included lies in the affidavit used to obtain a warrant. Reckless disregard for the truth is treated the same as knowingly including lies. Legal Issue: Do the facts that remain, after excluding items officers knew or should have known were untrue, establish probable cause? EQ: What happens between the time a suspect is arrested and the trial begins?

47. Challenge to Validity of Warrant Search warrant executed in inappropriate manner Evidence Considered: Compare search that was authorized in the warrant and the search actually conducted. Also consider: had warrant expired? are there other grounds, such as Plain View Doctrine, for the officer's actions? Legal Issue: Did officers restrict search to places authorized in the warrant and items the warrant stated they could seize? Is the seizure justified on other legal grounds? EQ: What happens between the time a suspect is arrested and the trial begins?

48. Other Evidence Challenges Searches: Evidence Considered: What the officers did and why the officers conduct the search. Legal Issue: Is there an exception to the Fourth Amendment which justifies the officer's actions? Prosecution bears burden of proof. EQ: What happens between the time a suspect is arrested and the trial begins?

49. Other Evidence Challenges Arrest: Evidence Considered: All facts available to officer at time arrest was made. Legal Issue: Did the officer have probable cause to make the arrest? Was an arrest warrant required? EQ: What happens between the time a suspect is arrested and the trial begins?

50. Other Evidence Challenges Confessions: Evidence Considered: All facts surrounding the interrogation. Legal Issues: Were Miranda warnings required? Were Miranda warnings given correctly? Did suspect waive Miranda rights? EQ: What happens between the time a suspect is arrested and the trial begins?