1. Pretrial Procedures: The Adversary System in Action
Chapter 9
Introduction to Criminal Justice 2003:
A Microsoft® PowerPoint® Tool
Slides prepared by:
Larry Bassi
SUNY Brockport
© 2002 Wadsworth Publishing Co.

2. Abstract Goals of the Courts
Provide for an open and impartial forum for seeking the truth
Provide for a fair and equitable hearing using regulated rules
Insure that the process takes place in an atmosphere of legal competence and objectivity
Provide a clear legal outcome

3. Models of the Courts Due Process Crime Control
Setting for an adversarial process
Defendant against the state
Fair & formalized process
Criminal procedure and rules of evidence
Encourages settlement in the quickest and simplest way
Emphasizes punishment and retribution

4. The Dual Court System State Court Systems Federal Court System
State courts try cases
that are against the laws
of that particular state.
Considerable variation exists
in state system, but much
similarity can also be found.
Federal Court System
Federal courts try cases
that are against the laws
of the United States.

5. The Dual Court System

6. Federal Court Structure
U.S.
Supreme
Court
Highest court in the land; court of last resort
Decisions become precedents (landmark decisions)
May choose to hear/not hear most cases
Uses writ of certiorari to get case records

7. Duties of the Judiciary
Oversees conduct in the court
Settles questions of evidence and procedure
Guides questioning of witnesses
Instructs the jury about law
Decides case when a jury is not used (bench trial)
Decides on sentence

8. The Role of the Judge in the Criminal Trial Process

9. What Titles Do Prosecuting Attorneys Have?
District
Attorney
U.S.
Attorney
State’s
Attorney
County
Attorney

10. What Are the Prosecutor’s Duties?
Represent the people in the adversary process
Enforce the criminal law
Seek justice
Convict the guilty
Participate in legal reforms
Public spokesperson for the field of law

11. Prosecutorial Options: Discretionary Decisions
One of the most critical decisions a
prosecutor makes, is who to prosecute.
A prosecutor can:
Decide whether or not to charge an individual with a crime
Determine the level of charge(s) to be brought against a suspect
Decide if, or when, to stop a prosecution

12. Factors That Influence Prosecutorial Decision Making
System Factors Case Factors
Clogging the system
Wasting time on minor cases when major cases need attention
Wasting time on a case because it cannot be won
Attitude of the victim
Cost of prosecution
Undue harm to suspect or victim
Alternative sanctions available and appropriate

13. Politics and Prosecutors
The prosecutor is either elected or appointed.
The prosecutor is among the leaders of his or her party, and has allegiances to it and a local constituency that may affect decision making.
The office of local prosecutor is often seen as a political stepping stone.

14. What Should a Defense Attorney Do?
Investigate the charged incident
Communicate with the prosecutor including plea bargaining
Prepare case for trial
Submit defense motions
Provide representation at trial
Negotiate best sentence if client is convicted
Determine whether to appeal

15. Gideon v. Wainwright
The Supreme Court ruling that an indigent defendant charged in a state court with any non-capital felony has the right to counsel under the 14th Amendment.

16. Argersinger v. Hamlin
The Supreme Court ruling that a defendant has the right to counsel at trial whenever he or she may be imprisoned for any offense, even for one day, whether it is classified as a felony or a misdemeanor.

17. Indigent Defender Systems
Public Defender
Systems
Assigned Counsel
Systems
Contract
Systems

18. Public Defender Systems
Thought of as law firms with only criminals as clients
Paid for with tax dollars
Organized along county or state lines
Serve 68% of the population
Lawyers develop some expertise because of daily contact with the criminal law

19. Assigned Counsel Systems
Two kinds of assigned counsel:
ad hoc assigned counsel system
coordinated assigned counsel system
System can suffer from:
unequal assignments
inadequate legal fees
lack of supportive services

20. Contract System
Grant of a specific amount given to a private firm or to a private lawyer
Grant is based on:
Number of cases to be defended
Estimated cost per case
May supplement services of a Public Defender’s Office

21. Costs of Defending the Indigents
The number of cases are increasing at an alarming rate
Lack of available attorneys willing to accept the low fees offered
Legislatures see funding these programs as politically unpopular

22. Three Basic Features of the Adversarial System
A neutral and passive decisionmaker, either the judge or jury;
The presentation of evidence from both parties; and
A highly structured set of procedures (in the form of constitutional safeguards) that must be followed in the presentation of that evidence.

23. 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.

24. Pretrial Release Before proceeding to trial, the issue
of releasing the suspect must be
addressed. This issue may come up at
the police station, at the initial court
proceedings or at the arraignment in
felony cases. At issue are the sometimes
conflicting rights of the accused to be
free before trial, and the need of the state
to protect citizens from the accused
prior to trial.

25. 8th Amendment Right to Bail
The amendment does not guarantee a right to bail, but a right to no excessive bail
Stack v. Boyle
If a crime is bailable, the amount set should not be frivolous, unusual or beyond a person’s ability to pay under similar circumstances.

26. The Likelihood of Pretrial Release
Percent
Of Those
Charged and
Released
Prior to
Trial
20 -
40 -
60 -
80 -
100
Violent
Crime
Property
Drug
Public
Order
31.9%
77.4%
35.1%
31.3%

27. Extralegal Factors That May Affect a Bail Decision
Uncertainty
Not enough verifiable data
is available to help the judge in
a short period of time
Risk
No way of knowing if the
accused will show up for trial
or commit another offense.
Overcrowded jails
Not enough information to tell
who must be detained and
who might be detained.

28. 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

29. Misdemeanor Procedures
Usually released from police custody
Complaint filed, usually by police The formal complaint identifies:
Criminal charges, date and place of the crime & circumstances of the arrest
Initial Hearing is held and:
If the plea is guilty, case is disposed of
If the plea is not guilty, a trial date is set

30. Arraignment
The arraignment is the step at which the accused are read the charges against them and are asked how they plead. In addition, the accused are advised of their rights. Possible pleas are:
Guilty, not guilty, nolo contendere, not guilty by reason of insanity

31. Felony Procedures Because felonies are more serious,
an intermediate step is required
that establishes to an “objective
body” that there is probable cause to
believe that a crime has taken place
and that the accused should be
tried on the matter. There are two
approaches to this issue: the Grand Jury
and Information Systems.

32. The “Information” or “Preliminary Hearing” System
A system to establish probable cause
that is different from the Grand Jury
Conducted before a judge
Open proceedings
Prosecution and defense attend
Witnesses may be confronted
Rules of evidence apply
Judge makes decision on whether to bind over for trial

33. The Grand Jury From the Magna Carta
An investigative and accusatorial group of citizens representing the people of a jurisdiction
Qualifications vary: Resident, 18 years old, citizen, speak English
Determines if probable cause exists for one to be “bound over for trial.”

34. State Grand Jury Requirements

35. Grand Jury Sessions Controlled by the prosecutor
Closed and secret deliberations
One sided (ex parta ) Accused not allowed to attend

36. Criticisms of the Grand Jury
A rubber stamp for the prosecutor. NY Judge “...the grand jury would indict a ham sandwich if the prosecutor wanted it to.”
Costly and creates delays
Does not serve as a check and balance of government powers as it currently operates

37. Pretrial Motions Motion to suppress evidence Motion to change venue
invalidate a
search warrant
Motion to
dismiss the
case
Motion to
obtain
evidence

38. Following One Hundred Felony Arrests: The Criminal Justice Funnel

39. Managing the Charging Decision
(For definitions, see pages in your book)
System
Sufficiency
Model
Trial
Sufficiency
Model
Defendant
Rehabilitation
Model
Transfer
Model
Unit
Model
Legal
Sufficiency
Model

40. The Guilty Plea The most common plea Judge must inform accused of:
loss of rights
right to counsel
consequences and possible sentences
Must establish that the plea is voluntary

41. Plea Bargaining
90%
of all
convictions

42. 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

43. Pros and Cons of Plea Bargaining
Reduced costs
Improved efficiency
Concentrate on serious cases
Avoids pretrial detention and delays
Encourages defendants to waive constitutional rights
Results in lesser sentences and sentencing disparity
May coerce innocent to plead guilty

44. Factors Affecting the Decision to Plea Bargain
Nature of the offense
Defendant’s prior record and age
The type, strength and admissibility of evidence in the case
Attitude of the complainant
Prosecutors in areas with low population are more likely to bargain

45. Horizontal Overcharging Bring a number of different
Types of Overcharging
Vertical
Overcharging
Raising the
level of a
charge
above
its proper
place.
Horizontal Overcharging
Bring a number of different
counts for a single
criminal act.

46. Reform Plea Bargaining
Make it more:
visible
understandable
fair
Create specific guidelines
Require judicial supervision over the process
Place limits on the process

47. The Not Guilty Plea Entered verbally by defendant or his/her attorney
Automatically entered if defendant stands mute before the court
Trial date is set
Bail may be reconsidered

48. Nolo Contendere
Similar to a guilty plea in that the defendant states willingness to accept the punishment of the court.
Because THIS IS NOT A PLEA OF GUILTY, it cannot be used against the defendant in any subsequent civil suit arising out of the same action.

49. Legal Ethics on Trial: Defending the Guilty
Does defending the guilty protect the
suspect or society? (or both?)