2 Pretrial Activities First Appearance At their first appearance, defendants are brought before a judge and:Formally notified of the chargesAdvised of their rightsGiven the opportunity to retain a lawyer or have one appointed to represent themMay be afforded the opportunity for bail…must be held “without unnecessary delay” (Usually 48 hours)…may include a probable cause hearing, if arrests were made without a warrant.…some states waive the first appearance for arrests made based on arrest warrants.
3 Pretrial Activities (cont’d) Pretrial ReleaseMost defendants are given the opportunity for pretrial release.Pretrial release decisions consider risk of flight or nonappearance in court and risk to public safety. Decisions focus on:Seriousness of pending chargesPrior recordInformation about the defendantAvailable supervisory options if releasedBail- the posting of a bond as a pledge that the accused will return for court proceedings—most common pretrial release mechanismBail serves two purposes:helps ensure reappearance of the accused in court.prevents unconvicted persons from suffering imprisonment unnecessarily.*Bail can be denied when the defendant is thought to be a danger to the community
4 Alternatives to BailRelease on Recognizance (ROR)- Defendant provides written promise to appear in court. No cash or property bond required. Property Bond- Bail set in the form of tangible property, to become property of the court if the defendant absconds. Deposit Bail- The court acts as bond agent. Defendant posts percentage of full amount, including an administrative fee. Entire amount forfeited if absconds. Conditional Release- Defendant must abide by a set of imposed requirements. Third-Party Custody- Defendant assigned to an individual or agency that promises to ensure future court appearances Unsecured Bond- Court determines bail amount, but allows defendant to be released on “credit.” Entire amount forfeited if absconds. Signature Bond- Written promise to appear. Used in minor offenses by arresting officer without assessment of dangerousness/likelihood of appearance.
5 Pretrial Activities (cont’d) Grand JuryUsed by the federal government and about half of the states, grand juries:are made of private citizens (often 23).hear evidence only from prosecutors.are held in secret, and generally the defendant is not there.serve as filters to eliminate cases without sufficient evidence.move a case forward if the majority of grand jurors agree on an indictment.Preliminary HearingStates that do not use grand juries rely on preliminary hearings:They give the defendant an opportunity to challenge the legal basis of his detention.A lower court judge summarizes the charges and reviews the rights of criminal defendants.Competency to stand trial may be determined.They have many of the same characteristics as a trial.
6 Pretrial Activities (cont’d) Arraignment and the PleaArraignment is the first appearance before the court with authority to try the case.Two purposes:Inform suspect of specific chargesAllow defendant to enter a pleaTypes of pleas:GuiltyNot guiltyNolo contendere- “no contest”—immediately convicted—the plea does not admit guiltPlea Bargaining- the process of negotiating an agreement among the defendant, the prosecutor, and the court as to an appropriate plea and associated sentence in a given case.circumvents the trial process and dramatically reduces the time required for the resolution of a criminal case.maybe withdrawn with the consent of the courtNegotiated pleas are guilty pleas and result in convictionApproximately 90% of criminal cases are plea bargained
7 The Nature and Purpose of the Criminal Trial: The trial process is highly formalized and governed by rules of evidence and other procedural guidelines, as well as informal rules and professional expectations.The purpose is to determine the defendant’s guilt or innocence.Factual guilt- defendant is actually responsible for the crime of which he is accused.Legal guilt - defendant is found guilty in court as charged.
8 Eight Stages in a Criminal Trial There are eight stages of a criminal trial.Trial initiationJury selectionOpening statementsThe presentation of evidenceClosing argumentsThe judge’s charge to the juryJury deliberationsThe verdict
9 Of All Convictions Are Result of Guilty Pleas Rate of Case Dispositions Resulting from Trial Has Remained Stable over TimeOf All Convictions Are Result of Guilty Pleas90%Of All Cases Go to TrialLecture Notes9–10% of all cases actually go to trial.90% of all convictions are result of guilty pleas.Teaching TipsPoll students before you begin this discussion as to their perception of cases that go to trial. Then, compare the results with reality.
10 Presentation of Evidence Judge’s Charge to the Jury Pretrial ActivitiesTrial Initiation (Speedy trial requirements)Jury Selection (use of challenges)Opening StatementsProsecutionDefensePresentation of EvidenceProsecutionDefenseVerdictsJury DeliberationJudge’s Charge to the JuryClosing Arguments(order may vary)Teaching TipsMake sure that students understand that you will be discussing each step at length, but it is important for them to understand the process.If you have time, show a video documenting a case from beginning to end; for example, “Why OJ Simpson Won” (A&E video).
11 Eight Stages in a Criminal Trial Trial Initiation: Sixth Amendment guarantees that in “all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”The Speedy Trial Act- Prosecution must seek indictment or information within 30 days of arrest.Trial must begin within 70 days after indictment.Trial start can extend to 180 days if the defendant is not available or if witnesses cannot be called within the 70 day limit.Barker v. Wingo (1972)- 6th Amendment can be violated even if the defendant does not object to delays.Strunk v. U.S. (1973)- Denial of a speedy trial should result in dismissal of all charges.U.S. v. Taylor (1988)-when delay is the result of actions by the defendant, the 70 day rule does not apply.Doggett v. U.S. (1992)-“Even delay occasioned by the Government’s negligence creates a prejudice that compounds over time, and at some point, as here, becomes intolerable.”
12 Eight Stages in a Criminal Trial (cont’d) Jury Selection- Sixth Amendment guarantees the right to an impartial jury.Jurors are expected to be unbiased and free of preconceived notions about guilt or innocence.Prosecution and defense attorneys question potential jurors during the process of voir dire.Both the prosecution and defense can use challenges to remove prospective jurors from jury pool.Challenge to the array- claims that the pool from which potential jurors are to be selected is not representative of the community.Challenge for cause- claims that a prospective juror cannot be impartial or fair. Typically, each side has an unlimited number of such challenges.Peremptory challenge- remove potential jurors without the need to give a reason.Typically, each side has a limited number of such challenges.*Race alone cannot provide the basis for jury selection, and juries may not be intentionally selected for racial balanceSequestered—isolated from the public during the course of a trial and throughout the deliberation process.
13 Eight Stages in a Criminal Trial (cont’d) Opening Statements- the initial statements of the attorneys, describing the facts that he or she intends to present during trial to prove the case.Presentation of Evidence- prosecution presents its evidence first–then the defenseEvidence—anything useful to a judge or jury in deciding the facts of a case.Types of EvidenceDirect evidence- Facts that need not be interpreted (photographs, testimony)Circumstantial evidence- Requires judge or jury to make inferences or draw conclusionsReal evidence- Physical material or traces of activity, introduced by means of “exhibits” (weapons, tire tracks, fingerprints)*Judges decide which evidence can be presented to the jury.Evidence must be relevant.The probative value must be weighed against the potential inflammatory or prejudicial qualities of the evidence (gory color photos are sometimes withheld)
14 WitnessesTestimony—oral evidence presented by witnesses, including victims, police officers, the defendant, and specialists.Witnesses must be competent to testify.The defendant has the 5th Amendment right not to take the stand.Witnesses are subject to direct and cross examination.Witnesses who lie under oath commit perjury.Children as Witnesses- 37 states allow the use of videotaped testimony while 32 states allow the use of closed circuit television
15 The Hearsay RuleHearsay- anything that is not based on the personal knowledge of a witness.The hearsay rule prohibits the use of “secondhand evidence”Exceptions to the hearsay rule:Dying declarationsSpontaneous statementsCertain out-of-court statementsEx. 911 tapes may be allowed, unless the person is alive and in good health and can take the stand for questioning and cross-examination.
16 Eight Stages in a Criminal Trial (cont’d) Closing Arguments- At the conclusion of the trial, both sides provide the jury with closing arguments—a narrative summation of a case presented to a judge or jury.Judge’s Charge to the JuryAfter closing arguments, the judge charges the jury to:Select a forepersonDeliberateReturn with a verdictJudge may remind juries of statutory laws and requirement of impartialityJury Deliberations and the VerdictDeliberations may take minutes; some take weeks.Many jurisdictions require a unanimous verdict.Some juries are unable to reach a verdict. These deadlock juries are called hung juries.
17 Problems with the Jury System Many jurors are ignorant of the law and legal precedent.Some jurors personal opinions, biases, and emotions interfere with objectivity.Some jurors fear personal retaliation.