1. Chapter 9 Pretrial Procedures

2. Pretrial Services
Pretrial procedures are important because majority of criminal cases are resolved informally
Charges can be dropped or dismissed
Plea bargain can be made
Competency hearings

3. Bail
Bail: money or some other security provided to the court to ensure the appearance of the defendant at every stage in the criminal justice process.
Purpose: obtain release from custody
If defendant fails to appear, bail is forfeited and person is confined in jail until court appearance

4. Bail (cont.)
Current data indicate about 2/3rds of those arrested made bail
1/3rd are held in custody
7% denied bail
Murder defendants least likely to get bail
1/3 of those released were rearrested

5. Bail (cont.)
Purpose is to ensure appearance at trial, not punish
Cannot be arbitrarily denied or revoked
Critics argue is discriminatory/objectionable
Works against poor
State pays to incarcerate people who would otherwise remain in community
Detainees receive longer sentences than those on bail
Dehumanizing
Racial/ethnic disparity

6. Bail (cont.)
Pretrial Services
Created in 1960’s to improve release and detention decisions
1980’s began to focus on identifying those who were unable to make bail but would be acceptable risks for release
Today virtually all larger jurisdictions have pretrial release in one form or another

7. Bail (cont.)
Pretrial Services Programs/Responsibilities
Provide information for judges to make release decisions
Assess likelihood of defendant failing to appear or being rearrested
Monitoring conditions of release or provide intensive supervision
Provide special services for those with mental illness

8. Bail (cont.)
The Legal Right to Bail
8th Amendment prohibits excessive bail, it does not guarantee a right to bail.
Stack v. Boyle - If a crime is bailable, the amount set should not be frivolous, unusual or beyond a persons’ ability to pay under similar circumstances.
Those unable to post bail are held in pretrial detention until trial.

9. Bail (cont.)
Release on recognizance (ROR)
Pioneered by the Vera Institute of Justice, Manhattan Bail Project in 1961
concluded that release based on verified information was more effective than money bail
Federal Bail Reform Act of 1966
First change in federal bail laws since 1789
release should be under the least restrictive method necessary

10. Bail (cont.)
Federal Bail Reform Act of 1984 – mandated no defendant shall be kept in pretrial detention simply because they cannot afford money bail
Community safety and risk of flight be considered – allows for preventive detention
Critics of bail reform argue emphasis should be placed on controlling the behavior of serious criminals

11. Preventive Detention
Defendants are held in jail based on the belief that they will commit new crimes while on release.
Allows for detention without conviction for the protection of the defendant and that of the community.
Critics believe it is punishment prior to conviction.

12. Preventive Detention (cont.)
Some state jurisdictions have incorporated element of preventive detention into bail systems
Exclusion of certain crimes from bail eligibility
Definition of bail to include appearance in court and community safety
Limitations on right to bail for those previously convicted

13. Preventive Detention (cont.)
Schall v. Martin
Preventive detention of juveniles is constitutional because it is useful to protect the welfare of the minor and society as a whole.
United States v. Salerno
Upheld 1984 Bail Reform Act’s preventive detention provisions
Preventive detention act had a legitimate and compelling regulatory purpose which does not violate the due process clause.
Society’s need for protection outweighs and individual’s liberty interest.

14. Pretrial Detention
Those unable or ineligible for bail are subject to pretrial detention.
Pretrial Custody accounts for more incarceration than imprisonment after sentencing.
Jails considered the weakest link in the criminal justice process.

15. Pretrial Detention (cont.)
Effects of Detention
More likely to be convicted
Receive longer sentence than those released on bail.
Less attractive plea bargains

16. Charging the Defendant
Grand Jury
Traced to English common law
Fifth Amendment
Power to act as independent investigating body
Presentment
True bill
No bill

17. Charging the Defendant (cont.)
Grand Jury (cont.)
Controlled by the prosecutor
Closed and secret deliberations
Neither accused or public allowed to attend
A rubber stamp for the prosecutor
Prosecutor need not reveal evidence that might exonerate the accused

18. Charging the Defendant (cont.)
Preliminary Hearing
Used in about half the states as an alternative to the grand jury to determine probable cause
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

19. Charging the Defendant (cont.)
Arraignment
Occurs after the indictment or preliminary hearing
Filed in the court with jurisdiction to try the facts of the case
Defendant informed of charges and has counsel appointed if necessary
Defendant enters a plea
Guilty plea results in date being set for sentencing
If pleading not guilty a date is set for trial

20. Charging the Defendant (cont.)
Types of Pleas
Not Guilty: verbally stated by defendant or entered by court if defendant refuses to answer
Nolo Contendere: (no contest) defendant does not admit guilt but agrees to accept punishment
Guilty: defendant admits criminality

21. Plea-Bargaining
Most common practice in the criminal justice system
Concessions of Plea Bargaining
Reduction of initial charges
Reduction of the number of charges
Recommendation for a lighter sentence than probable
To alter the charges
To help move the case to a more lenient judge

22. Plea-Bargaining (cont.)
Benefits
Costs of prosecution reduced
Efficiency of courts improved
Defendant avoids lengthy pretrial incarceration and may receive a reduced sentence
Resources devoted to cases that need greater attention
Prosecution devotes more time to serious cases

23. Plea-Bargaining (cont.)
Opposition
Encourages defendants to waive their constitutional right to a trial
Dangerous offenders may receive lenient sentences
Innocent people may plead guilty if they believe the sentence is biased and they have little chance of acquittal or to avoid the possibility of harsh punishments
Prosecutors may induce or compel defendants to plead guilty
A “guilty plea culture” develops among defense attorneys.

24. Plea-Bargaining (cont.)
Legal Issues
Defendants are entitle to effective assistance of counsel.
Plea must be made voluntarily and without pressure.
Innocent persons can plead guilty to gain a lenient sentence
Both the prosecutor and defendant must honor any promise made
Prosecutors may threaten to indict defendants on more serious charges if they do not plead guilty
Statements made during negotiations may be used against defendant

25. Plea-Bargaining (cont.)
Factors Affecting the Prosecutor’s Decision
Nature of the offense
Defendant’s prior record and age
The type, strength and admissibility of evidence in the case
Attitude of the victim
Intangible factors

26. Plea-Bargaining (cont.)
Defense Attorney’s Role
Advisory role
Ensure the defendant understands the nature of the plea bargaining process and the guilty plea
Make sure defendant understands the alternatives available to them
Must communicate all plea-bargain offers to client

27. Plea Bargaining (cont.)
Judicial participation in plea negotiations
Creates impression on defendant that he/she could not receive a fair trial
Lessens the ability of the judge to make an objective determination of the voluntariness of the plea
Is inconsistent with the theory behind the use of presentence investigation reports
May induce an innocent defendant to plead guilty because he is afraid to reject the disposition desired by the judge

28. Plea-Bargaining (cont.)
Victim’s Role
Some argue process is too “victim driven”
Other argue the victims are relegated to a secondary role with no influence
Victims do not have a right to veto a plea bargain
Most agree prosecutor should confer with the victim

29. Plea-Bargaining (cont.)
Suggestions for Reform
Oversight of negotiations
Guidelines to identify suitable types of cases and offenders
Review of prosecutor’s decisions
Written documentation of need and acceptability for a plea bargain in any given case

30. Pretrial Diversion
Designed to remove case from formal criminal justice process
Avoids stigma of conviction
Reduces costs to the system
Alleviates jail and prison overcrowding
Danger of “net-widening”
Research indicates programs may result in reduced recidivism for some offenders