Transcript No Slide Title

Larry J. Siegel
www.cengage.com/cj/siegel
Chapter 8
Pretrial and Trial Procedures
Joe Morris • Northwestern State University
Cherly Gary • North Central Texas College
Lisa Ann Zilney • Montclair State
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.
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
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
Pretrial Release by Type of Bail Received
Type of pretrial release
Surety bond
Recognizance
Conditional
Deposit bond
Unsecured bond
Full cash bond
0
10
20
30
40
Percentage of released defendants
50
Six Types of Bail
Full Cash
Deposit Cash
Surety Bail
Conditional Bail
Unsecured Bail
Release on Recognizance (ROR)
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
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
Bail Reform
• Manhattan Bail Project
• Bail Reform Act of 1984
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
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
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
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
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
Charging the Defendant with a Crime
Misdemeanor
Brief judicial hearing and trial
Felony
Preliminary Hearing
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.”
• 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.
Arraignment
• Occurs after the indictment or preliminary hearing
• Defendant informed of charges and has counsel
appointed if necessary
• Plea is entered
The Plea
• Guilty
• Not guilty
• Nolo contendere
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
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
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
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
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
The Role of the Judge
• Judicial participation is not advisable
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
Plea Bargaining Reform
• Desire for more visibility
• Guidelines would provide consistency
• Banning plea bargaining
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
The Trial
Bench
Trail
Jury
Trial
• Judge
• Jury
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
Standards of Proof
Proof Beyond a Reasonable Doubt
Preponderance of the Evidence
The Steps in a Jury Trial
Jury Selection
•
•
•
•
Venire
Voir dire
Challenge for cause
Peremptory challenges
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
Prosecution’s Case
•
•
•
•
Direct examination
Cross examination
Witnesses restricted to factual information
Only expert witnesses can offer opinions
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
Closing Arguments
• Selectively review facts and evidence
• Provides inferences from evidence
• Cannot refer to matters not in evidence
Instructions to the Jury
• Judge provides information about the law
• Improper instructions are often the basis for an
appeal
Deliberation and Verdict
• Hung jury
• Jury nullification
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)
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