1. Importance of Pretrial Procedures
Pretrial procedures are important
components of the justice process
because the great majority of all
criminal cases are resolved informally
at this stage and never come
before the courts.

2. Pretrial Processes Arrest Booking Initial Appearance
Grand Jury / Preliminary hearing
- indictment
- information
Arraignment
Pretrial Motions

3. Bail and Pretrial Release
Definition
Reality of Bail System
Bail Bondsperson
Setting Bail
Reforming Bail
Issues
Preventive Detention

4. Bail and Equity Issues

5. Preventive Detention
Holding a defendant for trial based on a judge’s finding that, if the defendant were released on bail, he or she would endanger the safety of any other person and/or the community or would flee

6. Preventative Detention: The Controversy
FOR AGAINST
Based on the notion that certain offenders will commit crime while on release
Society has the right to be protected from future criminal acts
It is a form of punishment which is not based on a guilty verdict and is based on something that MIGHT happen

7. United States v. Salerno (1987)
The Supreme Court held that the preventive detention act had a legitimate and compelling regulatory purpose and did not violate the due process clause.
Preventative detention was not designed as a punishment, but to prevent danger to the community which is a legitimate societal goal.

8. Plea Bargaining and Trials
Pleas Trials
Case disposition
Relationships involved
Legal issues
Pros and Cons
Reform
Case disposition
Juries
Trial process
Evaluating the jury system
Appeals

9. Plea Bargaining
90%
of all
convictions

10. Plea Bargaining
Defined: a defendant’s agreement to plead guilty with the reasonable expectation of receiving some consideration from the state for doing so
Blackledge v. Allison (1976) – Supreme Court acknowledges mutual advantage
Trial or Plea – which is best bet for a given defendant?

11. Relationships in Plea Bargaining
Players involved
Incentives involved
Tactics
Remember Going Rate
Implicit vs. Explicit Plea Bargaining
Slow Plea – more likely as time goes on
Strength of each side’s case: bluff or real deal?

12. Legal Issues in Plea Bargaining
Voluntary – Boykin v. Alabama (1969)
Prosecutors – Santobello v. New York (1971)
Defendants – Ricketts v. Adamson (1987)
Threats - Bordenkircher v. Hayes (1978)
Supreme Court on Plea Bargains

13. Pros and Cons of Plea Bargaining
Pro Con
Improves efficiency
Reduces costs
Allows concentration on serious cases
Avoids pretrial detention and delays
Individualized justice
Encourages defendants to waive constitutional rights
Results in lesser sentences and sentencing disparity
May coerce innocent to plead guilty
Low visibility
Breeds disrespect for the law – a “game show”

14. Length of Sentence: Pleas vs. Trials

15. Reforming Plea Bargaining
Make it more:
visible
understandable
fair
Create specific guidelines.
Require judicial supervision over the process.
Place limits on the process.
Alaska ban 1975 – no great effects
California 1982 – moves to preliminary stage

16. TRIALS
Only 5% of all
cases are heard
by a jury trial.

17. VITAL FUNCTIONS OF THE JURY
Prevent government oppression
Determine guilt (facts)
Represent community
Serve as buffer
Educate citizens
Symbolize rule of law

18. Sixth Amendment In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district wherein the crime shall have been
committed...to be informed of the nature
and cause of the accusation; to be
confronted with the witnesses against him;
to have compulsory process for obtaining
witnesses in his favor, and to have the
Assistance of Counsel for his defense.
Sixth Amendment

19. The Right to Confront Witnesses
Provides for a control over hearsay evidence and allows the veracity of witnesses to be challenged
Helps the accused in preparation of a defense to know who will present testimony for the state
Does not necessarily mean a face-to-face confrontation

20. Right to a Jury Trial
This right is guaranteed for all serious crime - not all crime
Constitution does not require a 12 person jury, smaller juries may be permitted
The Sixth and Fourteenth Amendments do not mandate a unanimous verdict in all cases

21. The Right to Counsel at Criminal Trials
Bill of Rights
6th Amendment
Powell v.
Alabama
In Re Gault
Fourteenth
Amendment
Gideon v.
Wainwright
Argersinger v.
Hamlin

22. Right to a Speedy Trial Improve the credibility of the trial
Purposes for this guarantee include:
Improve the credibility of the trial
Reduce defendant anxiety
Avoid pretrial publicity
Avoid adverse effects on the ability to present a defense

23. Time Limits for Speedy Trials
Constitution does not specify a time limit
Most states have adopted statutes which define reasonable limits
Federal Speedy Trial Act of 1974
provides time limits for various stages of the adjudication process
provision for fining defense counsels causing delays

24. Jury Selection Process
Jury pool of 200
to 1,000 citizens
drawn each month
from source list
Return to jury pool
Panel 30
Guilty plea or dismissed
Voir
Dire
Selected
for jury 14
Challenged
or not used 16
Guilty plea or dismissed
Jury 14
Trial

25. Jury Selection Process
Jury pool of 200
to 1,000 citizens
drawn each month
from source list
Jury Selection Process
Most jurisdictions use a number
of sources for the names of potential
jurors. The lists are sorted and duplicates
are discarded. The jury pool is then
selected on a random basis. The term
that jury pools serve vary from jurisdiction
to jurisdiction.

26. Jury Selection Process
Jury pool of 200
to 1,000 citizens
drawn each month
from source list
Jury Selection Process
A panel of potential jurors is randomly
selected for each jury trial. The size of
the panel may be increased depending
on the possible difficulty of selecting a
qualified jury.
Panel 30

27. The voir dire is a process of selecting
potential jurors. Both prosecution and
defense may object to jurors
and challenge them
peremptorily or for cause.
Panel 30
Voir
Dire
Selected
for jury 14
Challenged
or not used 16

28. Challenge for Cause
Purpose is to determine if someone is unfit to serve.
Prosecution and defense want someone who is sympathetic to their side of the case.
Judge and both sides ask questions.
Number of these challenges is unlimited.

29. Peremptory Challenges
Enable attorneys to excuse jurors for no particular reason or for undisclosed reasons.
Number of challenges are limited.
Can’t be used to eliminate jurors on the basis of race, ethnicity or gender.

30. Jury Selection Process
Jury pool of 200
to 1,000 citizens
drawn each month
from source list
Jurors that are not
selected are returned
to the pool for possible
use on another jury.
Panel 30
Voir
Dire
Selected
for jury 14
Challenged
or not used 16
Jury 14

31. Steps in a Jury Trial Voir Dire Prosecutors opening statement
to the jury
Voir Dire
Defense attorney’s opening
statement to the jury
Prosecutor’s presentation of evidence
and direct examination

32. Steps in a Jury Trial Defense attorney’s cross- examination
Defense attorney’s presentation of
evidence and direct examination
Prosecutor’s cross-examination

33. Steps in a Jury Trial Defense attorney’s closing
statements to the jury
Prosecutor’s closing statements
to the jury (summation)
Judge’s instructions to the jury on
the rule of law, evidence and
standards of proof

34. Jury deliberation and voting Pronouncement of the verdict
Steps in a Jury Trial
Jury deliberation and voting
Pronouncement of the verdict
Judicial sentencing

35. Criminal Evidence Testimonial evidence from witnesses
Real or physical evidence
Circumstantial or indirect evidence

36. Criteria of Admissibility of Evidence
Relevancy
Probativeness
Nonprejudicial
Reliability
Legally obtained

37. Instructions to the Jury
Judge’s responsibility
Provides jury with information about the law
elements of the crime
evidence required for proof
burden of proof required
Improper instructions are often the basis for an appeal

38. The Verdict Guilty Not guilty Hung jury
judge will normally set a date for sentencing and ask for a presentence investigation report
Not guilty
defendant is free to leave
Hung jury
case may be retried

39. Proof Beyond a Reasonable Doubt: What Does it Mean?
A doubt of 7 1/2 on a scale of 10.
A doubt based on reason and common sense.
Not frivolous or fanciful doubt.
Substantial doubt.
Persuasion to a moral certainty.
A doubt that would cause prudent persons to hesitate before acting in a matter of importance to themselves.

40. Sentencing
Normally after review of a Presentence Investigation Report in felony cases
Rules applying to discretionary decisions by judges regarding the kind and severity of sentence vary among jurisdictions
One of the most important and visible decisions by the judge

41. Judges v. Juries Judges and juries do not always evaluate
evidence in the same way. Juries often
look at the nature of the victim, the act
(e.g. self defense) and whether the
defendant took the stand.

42. Appeals Most are unsuccessful.
They are based on some “legal” contention. Issues tend to deal with the introduction and sufficiency of evidence and jury instructions.
Homicides and other serious crimes against persons account for more than 50% of all appeals.
Most appeals arise from cases in which the sentence is five years or less.