1. Pretrial Procedures

2. Pretrial Services
What happens before a trial – mostly done by police, prosecutors and sometimes judges
Pretrial procedures are important because majority of criminal cases are resolved informally
Police may decide not to forward a case
Charges can be dropped or dismissed by the prosecutor
Plea bargains can be made by prosecutor and defense
Competency hearings in front of judges

3. Bail
Bail: money or some other assurance provided to the court that the defendant will appear at every stage in the criminal justice process.
Types of bail: surety bail, ROR – release on recognizance
Purpose: obtain release from custody for defendant
If defendant fails to appear, bail is forfeited and person is confined in jail until court appearance

4. Informal Bail Agents Bail bonding agencies:
Provide sureties, or bonds, for those who cannot afford the bond
Receive a fraction of the bond as profit for their work
If bailees appears in court, bonding agency gets its money bond back from the courts
If bailees jumps bail and cannot be found, bonding agencies loose their bond

5. Informal Bail Agents (cont.)
Bounty hunters:
Employed by bonding agencies to track down and return bail jumpers, so agencies can get their bond back
Bounty hunters have legal powers to arrest and detain which vary from state to state
Normally licensed by the state

6. Bail (cont.)
Current data indicate about 2/3 of those arrested made bail
1/3 are held in custody
7 percent denied bail
Murder defendants least likely to get bail
1/3 of those released were rearrested

7. Bail Release by Type of Bond
Notice the frequency of different types of bail
Question: who receives what type of bail?

8. Bail (cont.) Purpose is to ensure appearance at trial, not punish
Cannot be arbitrarily denied or revoked
Critics argue it 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
Preventive detention

9. Bail (cont.) Pretrial services
Created in 1960s to improve release and detention decisions
1980s 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

10. 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

11. 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 person’s ability to pay under similar circumstances.
Those unable to post bail, themselves, family or through bondsmen, are held in pretrial detention until trial.

12. 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

13. 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 considered – allows for preventive detention
Critics of bail reform argue emphasis should be placed on controlling the behavior of serious criminals

14. Preventive Detention
Defendants are held in jail based on the belief that they will commit new crimes while on release or flee jurisdiction or country
Allows for detention without conviction for the protection of the defendant and that of the community
Critics believe it is punishment prior to conviction.

15. 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

16. 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.

17. Pretrial Detention
Those unable or ineligible for bail are subject to pretrial detention.
Pretrial custody accounts for more incarceration than imprisonment after sentencing.
Normally held in jails if awaiting trial
Jails considered the weakest link in the criminal justice process – physical and operational conditions

18. Pretrial Detention (cont.)
Effects of detention (no bail)
Disruption of normal life –work, family
Less likely to prepare effectively for for their defense
Appear symbolically guilty when brought to court (clothing, shackles, cuffs)
More likely to be convicted
Receive longer sentence than those released on bail
Less attractive plea bargains

19. Charging the Defendant
Grand jury
Traced to English common law
Fifth Amendment
Power to act as independent investigating body
Presentment
True bill
No bill

20. Charging the Defendant (cont.)
Grand jury (cont.)
Controlled by the prosecutor
Closed and secret deliberations
Neither accused nor public allowed to attend
A rubber stamp for the prosecutor
Grand Juries rarely disagree with the prosecutor
Prosecutor need not reveal evidence that might exonerate the accused
Transcripts of Grand Jury hearings remain secret

21. 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

22. 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

23. 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
A nolo conviction cannot be used in a civil trials against the defendant
Alford plea: admits that prosecution has enough evidence to convict by maintains innocence
Guilty: defendant admits criminality

24. Plea Bargaining
Most common practice in the criminal court system to resolve cases
Who bargains?
Prosecutors – it is a win, a conviction; good record
Defense – the clients gets less punishment
Role of the judge – has to agree to the bargain; can reject bargain made between prosecutor and defense
Defendants typically does not participate in the bargaining
Some states allow victims to participate in a limited way

25. Plea Bargaining Types: what is the bargain about? Charge bargaining:
Reduction of initial charges (e.g., from felony to misdemeanor)
Reduction of the number of charges, drop charges
Sentence bargaining:
Recommendation for a lighter sentence to the judge
Recommendation on which judges will decide the case and sentence; some judges are more lenient than others for certain types of offenses (e.g., domestic violence, drug offenses)

26. Rates of Plea Bargaining
Notice that only murder is plea bargained for less than 50% of all cases

27. Plea Bargaining (cont.)
Why bargain in the first place?
A necessity because a of resource constraints:
prevents further overcrowding of courts
Without P-B courts would grind to a standstill
Exercise professional skills: the outcome is the correct one and a certain conviction (avoids the uncertainty of a trial)
Correct outcome = the worth of a case
Avoids factual and legal weaknesses of a case and still leads to a conviction (defendants give up their due process rights when they plead guilty)

28. Plea Bargaining (cont.)
Other 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

29. Plea Bargaining (cont.)
Opposition to plea bargaining
Encourages defendants to waive their constitutional right to a trial
Dangerous offenders may receive lenient sentences and insufficient punishment (as perceived by victims and the public)
Innocent people may plead guilty if they believe the court is biased and they have little chance of acquittal or to avoid the possibility of harsh punishments

30. Plea Bargaining (cont.)
Opposition to plea bargaining (cont.)
Prosecutors may induce or compel defendants to plead guilty
A “guilty plea culture” develops among defense attorneys.
guilty pleas to “wrong” offense (e.g., if charge is reduced from felony to a misdemeanor, offenders end up pleading to something they have not done –if charge was properly constructed)
Can encourage prosecutor misconduct – multiple charges

31. Plea Bargaining (cont.)
Legal issues
Defendants are entitled 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 not threaten to indict defendants on more serious charges if they do not plead guilty.
Statements made during negotiations may be used against defendant.
Consequences down the road which offenders who plead guilty are not aware of or informed about (e.g., three strikes implications)

32. Plea Bargaining (cont.)
Issues (cont.)
The impact of sentencing guidelines
Do they eliminate bargaining
Prosecutors and defense know what sentence a judge has to impose
Does bargaining fit a Supermarket or a Bazaar model? How much bargaining actually goes on?
Supermarket – the prize, punishment, is posted
Bazaar – the outcome, punishment, depends on haggling and skills

33. Plea Bargaining (cont.)
Factors affecting the prosecutor’s decision in plea bargaining
Nature of the offense
Defendant’s prior record and age
The type, strength, and admissibility of evidence in the case
Attitude of the victim
Public opinion
Skills of the defense attorney
Intangible factors
Informal long term relations in the court working group
Calendar pressures

34. Plea Bargaining (cont.)
Defense attorney’s role
Convey plea bargaining offers: “I can get you…”
Provide expert advice: “this is the best you can get…”
Ensure the defendant understands the nature of the plea bargaining process and the guilty plea
Make sure defendants understand the alternatives available to them
Must communicate all plea bargain offers to client
Must abide by the wishes of the defendant to plea bargain or not

35. Plea Bargaining (cont.)
Judicial participation in plea negotiations are not advisable because:
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 s/he is afraid to reject the disposition desired by the judge

36. 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
In some states, victims can voice their opinions on a proposed plea bargain with the prosecutor

37. Plea Bargaining (cont.)
Suggestions for reform
Eliminate it – Is it possible?
The myth of Alaska: plea bargaining was not abolished
Oversight of negotiations, by whom?
Guidelines to identify suitable types of cases and offenders
Victim participation in plea-bargaining negotiations
Review of prosecutor’s decisions
Written documentation of need and acceptability for a plea bargain in any given case

38. Pretrial Diversion
Designed to remove cases from the 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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