1. Chapter 11
Pretrial Procedures

2. Importance of Pretrial
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.
Pretrial Services Resource Center is an independent, non-profit clearinghouse for information on pretrial issues and technical assistance.

3. The Booking Process
Conducted by the police and includes:
Listing of possible charges
Mug shots (photos)
Fingerprinting
Possible participation in a lineup
Time may be used to develop more information about the crime

4. 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

5. 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

6. 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 the information systems.

7. 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.

8. Purposes of Pretrial Release Services
To improve the release and detention decisions
To identify those for whom alternatives to incarceration are appropriate
To monitor pretrial arrestees

9. Eighth 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.

10. Bail Reform
Manhattan Bail Project
Concluded that release based on verified information was more effective than money bail
Federal Bail Reform Act of 1966
Release should be under the least restrictive method necessary
Federal Bail Reform Act of 1984
Established presumption for ROR and formalized preventative detention

11. Preventative Detention: The Controversy
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

12. Revocation of Pretrial Release
About 1/3 of those on release will be revoked.
Those who are rearrested tend to:
Be on bail longer (nine months or more)
Have a serious prior record
Abuse drugs
Have a poor work record
Be disproportionately young, male and minority group members

13. United States v. Salerno (1987)
The Supreme Court held that the preventive detention act had a legitimate and compelling regulatory purpose and did not violate the due process clause. Preventative detention was not designed as a punishment, but to prevent danger to the community which is a legitimate societal goal.

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

15. 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.

16. The “Information” or “Preliminary Hearing” System
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

17. 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

18. The 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

19. 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.

20. Plea Bargaining
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

21. Pros and Cons of Plea Bargaining
Reduced costs
Improved efficiency
Concentrate on serious cases
Avoids pretrial detention and delays
Permits efficient reallocation of resources to other more important crime
Encourages defendants to waive constitutional rights
Results in lesser sentences and sentencing disparity
May coerce innocent to plead guilty

22. 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

23. Suggest Safeguards for Plea Bargaining Systems
Uniform plea practice
Time limits of plea negotiations
Presence of defense counsel to advise defendant
Open discussions about plea between prosecutor and defense attorney
Full information regarding offender and offense
Judicial questioning of defendant before accepting plea
Judicial supervision of plea

24. The Role of the Prosecutor in Plea Bargaining
The prosecutor has broad discretion in the exercise of the office.
Plea-bargaining is one of the major tools the prosecutor uses to control and influence the criminal justice system.
In making the decision to plea bargain, the prosecutor is generally free to weigh competing alternatives and factors, such as:
The seriousness of the crime
Attitude of the victim
Police report of the incident
Applicable sentencing provisions
The defendant's prior record and age
The type, strength and admissibility of evidence
Some jurisdictions have established guidelines to provide consistency in plea-bargaining cases.

25. The Role of the Defense Counsel in Plea Bargaining
Defense counsel is required to play an advisory role in plea negotiation
Defense counsel is responsible for making certain that the accused understands the nature of the plea-bargaining process and the guilty plea
Defense counsel has a duty to keep the defendant informed of developments and discussions with the prosecutor regarding plea-bargaining.
Defense counsel is not only ethically but constitutionally required to communicate all plea-bargaining offers to a client even if counsel believes the offers to be unacceptable.

26. The Role of the Judge in Plea Bargaining
The American Bar Association (ABA) is opposed to judicial participation in plea negotiations.
Judicial participation in plea negotiations:
Create the impression in the mind of the defendant that he or 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 the theory behind the use of presentence investigation reports
May induce an innocent person to plead guilt

27. Plea Bargaining Reform
Make it more:
Visible
Understandable
Fair
Create specific guidelines
Require judicial supervision over the process
Place limits on the process

28. If Plea Bargaining Was Eliminated ...
Would fewer cases be prosecuted?
Would prosecutors engage in more charge bargaining?
Would judges have a greater role in the sentencing process?
Would courtroom congestion increase?
Would more people go to prison?

29. Pretrial Diversion
In diversion programs, formal criminal proceedings against an accused are suspended while that person participates in a community treatment program under court supervision.
Some authorities think of pretrial diversion as a panacea for court congestion.
Some national evaluations have found that diversion programs have not been successful at avoiding stigmatization of the offender.

30. Pretrial Diversion Decision Making
Decisions about nondispositional alternatives are based on:
The nature of the crime
Special characteristics of the offender
Whether the defendant is a first-time offender
Whether the defendant will cooperate with a diversion program
The impact of diversion on the community
Consideration for the opinion of the victim