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Chapter 9 Pretrial Procedures. Pretrial Services  Pretrial procedures are important because majority of criminal cases are resolved informally  Charges.

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Presentation on theme: "Chapter 9 Pretrial Procedures. Pretrial Services  Pretrial procedures are important because majority of criminal cases are resolved informally  Charges."— Presentation transcript:

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  1/3 rd 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


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