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Criminal Procedure: Pretrial Arrest: Upon arrest police will read you your MIRANDA RIGHTS “You have the right to remain silent…..” Based on your 5 th Amendment.

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Presentation on theme: "Criminal Procedure: Pretrial Arrest: Upon arrest police will read you your MIRANDA RIGHTS “You have the right to remain silent…..” Based on your 5 th Amendment."— Presentation transcript:

1 Criminal Procedure: Pretrial Arrest: Upon arrest police will read you your MIRANDA RIGHTS “You have the right to remain silent…..” Based on your 5 th Amendment rights to be free from “self-incrimination” MOST DEFENSE ATTORNEYS SAY: DON’T TALK TO THE POLICE!!!!! 5/4/2015 1

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 5/4/2015 2

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 5/4/2015 3

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” 5/4/2015 4

5 Arrest and detention are SERIOUS infringements on your liberties  5 TH 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. 5/4/2015 5

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 5/4/2015 6

7 Preliminary Hearing  Judge determines if there is enough evidence to continue the process (PROBABLE CAUSE)  This function is also served by GRAND JURIES 5/4/2015 7

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 5/4/2015 8

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 5/4/2015 9

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 5/4/

11 Probable Cause  Government’s responsibility to prove probable cause  Grand jury and preliminary hearing are procedures which evaluate evidence against the accused 5/4/

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 5 th Amendment  Use of grand jury is declining:  In 1961, more than half of the states required grand jury indictments 5/4/

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 5/4/

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 5/4/

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 5/4/

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 5/4/

17 Plea bargaining cont.  Arguments for plea bargaining:  Reduced costs  Improved efficiency  Concentrate on serious cases  Defendant avoids pretrial detention and delay 5/4/

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 5/4/

19 Factors Affecting Prosecutorial Decision Making  The offense  Prior record  Defendant’s age  Type, strength and admissibility of evidence 5/4/

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 5/4/

21 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 5/4/

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 5/4/

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 5/4/

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