Chapter 11 Pretrial Procedures.

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Presentation transcript:

Chapter 11 Pretrial Procedures

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.

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

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

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

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.

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.

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

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.

Bail Reform Manhattan Bail Project - 1961 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

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

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

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.

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

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.

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

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

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

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.

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

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

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

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

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.

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.

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

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

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?

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.

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