LAW 1: CRIMINAL LAW PRETRIAL PROCEDURES PRETRIAL PROCEDURES

PRELIMINARY PROCEEDINGS OF A CRIMINAL CASE PRETRIAL PROCEDURES

INTRODUCTION Before a criminal case reaches the courtroom, several preliminary proceedings take place. Most of these proceedings are standard for every case. Depending on the circumstances and result of preliminary proceedings, charges may be dropped or the defendant may plead guilty. PRETRIAL PROCEDURES

INTRODUCTION If either of these occurs, there will be no trial. PRETRIAL PROCEDURES

ARREST AND BOOKING When a police officer has probable cause to believe that someone has committed a crime, or an arrest warrant, the officer may arrest that person. After the arrest, the officer generally takes the suspect to the police station for booking. BOOKING is a clerical procedure in which the police make a formal record of the arrest. PRETRIAL PROCEDURES

ARREST AND BOOKING A booking officer records the name, address, and date of birth of the suspect; the name of the arresting officer; the date, time, and place of the arrest; and the reason for the arrest. As part of the booking process, police officers photograph and fingerprint the suspect. PRETRIAL PROCEDURES

ARREST AND BOOKING Depending on the crime, they may also take a sample of the suspect’s blood, urine, hair, handwriting, or clothing. These samples may be used as evidence at a criminal trial. At the time of booking, police officers usually spend some time questioning the suspect. PRETRIAL PROCEDURES

ARREST AND BOOKING If there was a witness to a crime, the police may also place the suspect in a LINEUP. This means placing the suspect with several similar looking individuals and asking the witness to pick out the suspect. PRETRIAL PROCEDURES

INITIAL COURT APPEARANCE As soon as possible after the arrest, the defendant is brought before a judge for the INITIAL COURT APPEARANCE. This appearance is usually brief and generally takes place within 12 to 72 hours after the arrest. The judge informs the defendant of their constitutional rights, such as the right to counsel and the right to remain silent. PRETRIAL PROCEDURES

INITIAL COURT APPEARANCE At this point, if the defendant can’t afford a lawyer, the judge may appoint a public offender. If the defendant is charged with a misdemeanor, the judge explains to the defendant exactly what the charges are—that is, what crimes the defendant is accused of committing. PRETRIAL PROCEDURES

INITIAL COURT APPEARANCE The judge then asks the defendant to plead guilty or not guilty. If the defendant pleads guilty, the judge hands down a sentence and the process is complete. If a defendant pleads not guilty, the judge asks whether the defendant wants to waive, or give up, the right to a jury. PRETRIAL PROCEDURES

INITIAL COURT APPEARANCE If the defendant agrees to waive that right (and if the defendant’s lawyer is present), the judge may hold the trial immediately. If the defendant requests a jury trial, however—or if the defendant needs more time to prepare a defense—the judge will schedule a trial for a future date. PRETRIAL PROCEDURES

INITIAL COURT APPEARANCE The process is somewhat different for defendants who are charged with felonies. In this case, the judge doesn’t ask the defendant to plead guilty or not guilty. Instead, the judge sets a date for the defendant’s next court appearance. PRETRIAL PROCEDURES

BAIL AND PRETRIAL RELEASE After the initial court appearance, a judge usually sets bail and gives the defendant an opportunity to pay it. But a judge may deny bail entirely to certain people, mainly those who are flight risks and pose a serious threat to society. BAIL is a sum of money or property deposited or pledged to guarantee that the defendant will appear for a preliminary hearing or trial. PRETRIAL PROCEDURES

BAIL AND PRETRIAL RELEASE The bail system ensures that people accused of crimes—people who, under the law, are still innocent—do not have to spend time in jail. Setting the amount of bail is a delicate matter. For the system to be effective, the amount of bail must be relatively high. PRETRIAL PROCEDURES

BAIL AND PRETRIAL RELEASE Otherwise, many defendants would be willing to give up the money as the price of avoiding a trial. By contrast, if the amount is set too high, a defendant might not be able to pay it. Although vague, the Eighth Amendment, which deals with the subject of bail, says “Excessive bail shall not be required.” PRETRIAL PROCEDURES

BAIL AND PRETRIAL RELEASE Harmless or trustworthy defendants may be released without having to pay bail. To be eligible for release on PERSONAL RECOGNIZANCE, or PERSONAL BOND, the defendant must promise to return and must be considered a low risk of failing to show up for trial. PRETRIAL PROCEDURES

BAIL AND PRETRIAL RELEASE In determining the likelihood of the defendant’s return, judges consider factors such as the nature and circumstances of the offense and the defendant’s family, community ties, financial resources, employment background, and prior criminal record. PRETRIAL PROCEDURES

BAIL AND PRETRIAL RELEASE Bail may be paid directly to the court; however, if the defendant cannot put up bail or find a friend or relative to do so, a professional bail bonding agent may do so for a fee. This fee is typically 10 percent of the bail amount and is not refundable. PRETRIAL PROCEDURES

BAIL AND PRETRIAL RELEASE Other assets, such as a car or property, often are required to be pledged as collateral to cover the bonding agent’s loss if the accused should jump bail. If a person released on bail fails to appear for trial, the bail is forfeited to the state and a warrant is then issued for the arrest of the fugitive. PRETRIAL PROCEDURES

BAIL AND PRETRIAL RELEASE The bonding agent may also try to find the accused in order to recover the bail posted. PRETRIAL PROCEDURES

DETERMINING PROBABLE CAUSE The need for PROBABLE CAUSE doesn’t apply only to police procedures. Once a prosecutor takes over the case, they must have probable cause to bring the defendant to trial. In other words, the prosecutor must show—based on available, legally obtained evidence—that there is reason to believe the defendant is guilty. PRETRIAL PROCEDURES

DETERMINING PROBABLE CAUSE If the prosecutor can’t show probable cause, there can be no trial. Within a few weeks after the arrest, the trial judge holds a hearing to decide whether there is probable cause for a trial. This hearing, called a probable cause hearing, can take one of two forms. PRETRIAL PROCEDURES

DETERMINING PROBABLE CAUSE At a preliminary hearing, the judge hears both sides of the case and decides whether there is probable cause. At a grand jury hearing, a jury makes that decision. The type of hearing a defendant receives depends on state law and also what type of court has jurisdiction over the case. PRETRIAL PROCEDURES

DETERMINING PROBABLE CAUSE Defendants charged with a misdemeanor are not entitled to a preliminary hearing or a grand jury review. PRETRIAL PROCEDURES

PRELIMINARY HEARING A PRELIMINARY HEARING is a screening device in felony cases to determine if there is enough evidence to require the defendant to stand trial. At a preliminary hearing, the prosecutor is required to establish that a crime probably has been committed and that the defendant probably did it. PRETRIAL PROCEDURES

PRELIMINARY HEARING Like a trial, prosecution may present evidence such as testimony by a victim, testimony by witnesses, or items gathered in a police investigation. In most states, the defendant has the right to be represented by an attorney, to cross-examine prosecution witnesses, and to call favorable witnesses. PRETRIAL PROCEDURES

PRELIMINARY HEARING If enough evidence supports the prosecutor’s case, the defendant will proceed to trial. If the judge finds no probable cause to believe that a crime was committed or that the defendant committed it, the case is dismissed. PRETRIAL PROCEDURES

GRAND JURY A GRAND JURY is a group of 16 to 23 people responsible for determining whether there is sufficient cause to believe that a person has committed a crime and should be made to stand trial. Neither the defendant nor their attorney has a right to appear before a grand jury. A judge is also not present and rules of evidence do not apply. PRETRIAL PROCEDURES

GRAND JURY The prosecutor is not required to present all the evidence or call all the witnesses as long as the grand jury is satisfied that the evidence presented amounts to at least probable cause. A simple majority vote against the defendant is all that is required for a grand jury indictment. PRETRIAL PROCEDURES

GRAND JURY Only about 20 states regularly use grand juries instead of a preliminary hearing; some states utilize both procedures. Consequently, the Fifth Amendment to the U.S. Constitution requires all federal courts to use grand juries. PRETRIAL PROCEDURES

DOCUMENTATION OF CHARGES If the judge or grand jury decides that probable cause exists, the prosecutor moves on to the next step: making a formal list of the charges against the defendant. The prosecutor must list each crime the defendant is charged with. Each item on the list is called a count. PRETRIAL PROCEDURES

DOCUMENTATION OF CHARGES If the probable cause hearing was held in front of a grand jury, the prosecutor’s list of charges is called an INDICTMENT. If the probable cause hearing was held by a judge, or if there was no probable cause hearing, the list of charges is called an INFORMATION. PRETRIAL PROCEDURES

DOCUMENTATION OF CHARGES The prosecutor gives the indictment or information to the trial judge. The judge will read the list of charges to the defendant at the next step in the process—the arraignment. PRETRIAL PROCEDURES

FELONY ARRAIGNMENT In a misdemeanor case, the defendant is asked at the initial appearance to enter a plea of guilty or not guilty. The procedure is somewhat different, however, in a felony case since the defendant does not enter a plea until a later stage in the criminal process, known as the arraignment. PRETRIAL PROCEDURES

FELONY ARRAIGNMENT An ARRAIGNMENT is a pretrial criminal court appearance during which a judge reads the charges against the defendant, reminds the defendant of their constitutional rights, and asks the defendant to state their plea to each charge listed in the information or indictment. PRETRIAL PROCEDURES

FELONY ARRAIGNMENT If the defendant pleads guilty at the arraignment, the judge must carefully explain the consequences of their plea and make sure they understand everything they have been told; otherwise the guilty plea may not be valid. The judge will then set a date for sentencing. PRETRIAL PROCEDURES

FELONY ARRAIGNMENT But if the defendant pleads not guilty, the judge will set a date for trial and ask whether the defendant wants a jury trial or a trial before a judge alone, which is called a bench trial. A defendant may also enter a plea of NO CONTEST to criminal charges, instead of a guilty or not guilty plea. PRETRIAL PROCEDURES

FELONY ARRAIGNMENT This plea does not admit guilt but also does not contest the charges. It is equivalent to a guilty plea, but cannot be used as evidence in a later civil trial for damages based on the same set of facts. Like a guilty plea, there is no trial and the defendant proceeds directly to the sentencing phase. PRETRIAL PROCEDURES

PLEA BARGAINING Contrary to popular belief, most criminal cases never go to trial. Rather, most defendants who are convicted plead guilty before trial through the process of plea bargaining. A PLEA BARGAIN is a legal transaction between the prosecutor, defendant, and defendant’s attorney which settles a criminal case. PRETRIAL PROCEDURES

PLEA BARGAINING In exchange for the defendant agreeing to plead guilty, the prosecutor agrees to charge the defendant with a less serious crime, or fewer charges in a multiple-count case, which results in a lesser punishment. When accepting a guilty plea, the judge must decide if the plea was made freely, voluntarily, and with knowledge of all the facts. PRETRIAL PROCEDURES

PLEA BARGAINING Although plea bargaining is sometimes controversial, it is the most practical way to prevent the courts from being crowded with a huge number of cases. It would seem that everybody benefits from a plea bargain: the prosecutor wins the case, the defendant avoids the risk of a higher sentence, and the government is spared the time and expense of a long trial. PRETRIAL PROCEDURES

PLEA BARGAINING More than 90% of criminal convictions come from negotiated pleas, which means less than 10% of cases actually end up in trial. Plea bargaining usually occurs prior to trial, but may take place any time before a verdict is rendered. PRETRIAL PROCEDURES

PLEA BARGAINING However, plea bargains are usually more generous in the early stages of prosecution as an incentive to the defendant to bring the case to an early conclusion. PRETRIAL PROCEDURES