1. Criminal Procedure: Pretrial
Arrest: Upon arrest police will read you your MIRANDA RIGHTS “You have the right to remain silent…..” Based on your 5th Amendment rights to be free from “self-incrimination” MOST DEFENSE ATTORNEYS SAY: DON’T TALK TO THE POLICE!!!!!
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2. Procedures Following Arrest
Booking:
Police again advise you of your rights and have you sign a document stating that you are aware of them
Fingerprinting, mug shots ,and personal data collected
Possible participation in a lineup
Police will try to get a statement
Information is turned over to prosecutor
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3. County Prosecutor Lawyer for the Government against you Decides:
Does the case have merit?
Is there enough evidence to convict based on complaint filed?
Options:
Downgrade the charges: easier to convict
Send to Municipal Court for lesser offense
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4. You are now the DEFENDANT
Complaint: Formal charge issued by law enforcement agent or a citizen against you claiming that you committed a certain crime.
Superior Court: Serious offenses
Municipal Court: Lesser offenses “Disorderly persons”
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5. Arrest and detention are SERIOUS infringements on your liberties
5TH Amendment: You cannot be denied “life, liberty, or property, without DUE PROCESS of law”
DUE PROCESS guarantees that if the government is going to take away your liberty they must follow proper criminal procedures
Thus authorities must have probable cause that you are guilty of a crime.
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6. First Appearance / Initial Appearance
You meet the judge
Told again what you are being charged with
Informed of your rights
Legal Counsel offered
Bail Set for Serious offenses
Misdemeanor offenses
ROR: Released on your own Recognizance - You promise to show up to your trial
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7. Preliminary Hearing
Judge determines if there is enough evidence to continue the process (PROBABLE CAUSE)
This function is also served by GRAND JURIES
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8. arraignment Requirements for proof of probable cause:
Indictment from grand jury
File information at preliminary hearing
Formal arraignment; plead to charge:
Guilty
Not guilty
Nolo contendere (No contest) Not saying anything; Is like a guilty plea but helps can’t be used against you in a civil case later
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9. PTI: PRE TRIAL INTERVENTION
Used primarily for first time non- violent offenders
Goal is rehabilitation
Charges are suspended, if defendant stays out of trouble for a certain amount of time, charges are dropped
Defendant often required to attend counseling and submit to drug testing
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10. Bail
Bail is money or other security provided to the court to ensure the appearance of the defendant at every subsequent stage of the criminal justice process
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11. Probable Cause Government’s responsibility to prove probable cause
Grand jury and preliminary hearing are procedures which evaluate evidence against the accused
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12. History of Grand Jury Developed from English common law
Serves as a check on an arbitrary government
Incorporated into the U.S. Constitution in the 5th Amendment
Use of grand jury is declining:
In 1961, more than half of the states required grand jury indictments
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13. Role of the Grand Jury Acts as an independent investigating body
After investigation is completed a presentment is issued
Other major role is accusatory in nature
Decides whether probable cause exists:
Finds probable cause, a true bill is affirmed
No probable cause, a no bill is passed
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14. Typical Grand Jury 16 to 23 members
Chosen at random from the community
Must be at least 18 years old, U.S. citizen, a resident of the jurisdiction, and sufficient English-speaking skills
Grand jury meetings:
At the request of the prosecution
Hearings are closed and secret
Accused not allowed to attend unless called to testify
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15. Criticisms of Grand Jury
Costly operation
A rubber stamp for the prosecution
Delays the criminal justice process
Suggested reforms:
Witnesses should have attorneys present
Prosecutors should present evidence for the defendant as well as incriminating evidence
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16. Plea bargaining
Estimated that more than 90% of all convictions result form negotiated pleas
Concessions offered by the prosecution:
Reduction of initial charges
Reduce number of charges
Recommend a lenient sentence
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17. Plea bargaining cont. Arguments for plea bargaining: Reduced costs
Improved efficiency
Concentrate on serious cases
Defendant avoids pretrial detention and delay
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18. Arguments Against Plea Bargaining
Encourages defendants to waive constitutional rights
Results in lesser sentences and sentencing disparity
Possibility of coercing innocent to plead guilty
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19. Factors Affecting Prosecutorial Decision Making
The offense
Prior record
Defendant’s age
Type, strength and admissibility of evidence
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20. The Nature of Plea Bargaining
Wide discrepancy in the use of pleas
Much less likely to receive a prison sentence after plea when compared to jury trial outcomes
Bench trials and plea rates are much the same
Those who plea also receive shorter prison terms
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21. Probability of incarceration much the same for pleas for trial
Plea bargaining cont.
Probability of incarceration much the same for pleas for trial
60% plead to most serious charge
Plea less likely to result in a prison term
Punishment is certain but less severe
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22. Role of the Prosecutor in Plea Bargaining
Few limits on discretion to plea bargain
Pleas frequently sought after in weak cases
Concessions determined on a case-by-case basis
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23. Defense Counsel’s Role in Plea Bargaining
Acts in an advisory role in negotiations
Makes certain accused understands nature of plea bargaining process and the guilty plea
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