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Criminal Procedure: Pretrial

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Presentation on theme: "Criminal Procedure: Pretrial"— Presentation transcript:

1 Criminal Procedure: Pretrial
Arrest: Upon arrest police will read you your MIRANDA RIGHTS “You have the right to remain silent…..” Based on your 5th Amendment rights to be free from “self-incrimination” MOST DEFENSE ATTORNEYS SAY: DON’T TALK TO THE POLICE!!!!! 4/14/2017

2 Procedures Following Arrest
Booking: Police again advise you of your rights and have you sign a document stating that you are aware of them Fingerprinting, mug shots ,and personal data collected Possible participation in a lineup Police will try to get a statement Information is turned over to prosecutor 4/14/2017

3 County Prosecutor Lawyer for the Government against you Decides:
Does the case have merit? Is there enough evidence to convict based on complaint filed? Options: Downgrade the charges: easier to convict Send to Municipal Court for lesser offense 4/14/2017

4 You are now the DEFENDANT
Complaint: Formal charge issued by law enforcement agent or a citizen against you claiming that you committed a certain crime. Superior Court: Serious offenses Municipal Court: Lesser offenses “Disorderly persons” 4/14/2017

5 Arrest and detention are SERIOUS infringements on your liberties
5TH Amendment: You cannot be denied “life, liberty, or property, without DUE PROCESS of law” DUE PROCESS guarantees that if the government is going to take away your liberty they must follow proper criminal procedures Thus authorities must have probable cause that you are guilty of a crime. 4/14/2017

6 First Appearance / Initial Appearance
You meet the judge Told again what you are being charged with Informed of your rights Legal Counsel offered Bail Set for Serious offenses Misdemeanor offenses ROR: Released on your own Recognizance - You promise to show up to your trial 4/14/2017

7 Preliminary Hearing Judge determines if there is enough evidence to continue the process (PROBABLE CAUSE) This function is also served by GRAND JURIES 4/14/2017

8 arraignment Requirements for proof of probable cause:
Indictment from grand jury File information at preliminary hearing Formal arraignment; plead to charge: Guilty Not guilty Nolo contendere (No contest) Not saying anything; Is like a guilty plea but helps can’t be used against you in a civil case later 4/14/2017

Used primarily for first time non- violent offenders Goal is rehabilitation Charges are suspended, if defendant stays out of trouble for a certain amount of time, charges are dropped Defendant often required to attend counseling and submit to drug testing 4/14/2017

10 Bail Bail is money or other security provided to the court to ensure the appearance of the defendant at every subsequent stage of the criminal justice process 4/14/2017

11 Probable Cause Government’s responsibility to prove probable cause
Grand jury and preliminary hearing are procedures which evaluate evidence against the accused 4/14/2017

12 History of Grand Jury Developed from English common law
Serves as a check on an arbitrary government Incorporated into the U.S. Constitution in the 5th Amendment Use of grand jury is declining: In 1961, more than half of the states required grand jury indictments 4/14/2017

13 Role of the Grand Jury Acts as an independent investigating body
After investigation is completed a presentment is issued Other major role is accusatory in nature Decides whether probable cause exists: Finds probable cause, a true bill is affirmed No probable cause, a no bill is passed 4/14/2017

14 Typical Grand Jury 16 to 23 members
Chosen at random from the community Must be at least 18 years old, U.S. citizen, a resident of the jurisdiction, and sufficient English-speaking skills Grand jury meetings: At the request of the prosecution Hearings are closed and secret Accused not allowed to attend unless called to testify 4/14/2017

15 Criticisms of Grand Jury
Costly operation A rubber stamp for the prosecution Delays the criminal justice process Suggested reforms: Witnesses should have attorneys present Prosecutors should present evidence for the defendant as well as incriminating evidence 4/14/2017

16 Plea bargaining Estimated that more than 90% of all convictions result form negotiated pleas Concessions offered by the prosecution: Reduction of initial charges Reduce number of charges Recommend a lenient sentence 4/14/2017

17 Plea bargaining cont. Arguments for plea bargaining: Reduced costs
Improved efficiency Concentrate on serious cases Defendant avoids pretrial detention and delay 4/14/2017

18 Arguments Against Plea Bargaining
Encourages defendants to waive constitutional rights Results in lesser sentences and sentencing disparity Possibility of coercing innocent to plead guilty 4/14/2017

19 Factors Affecting Prosecutorial Decision Making
The offense Prior record Defendant’s age Type, strength and admissibility of evidence 4/14/2017

20 The Nature of Plea Bargaining
Wide discrepancy in the use of pleas Much less likely to receive a prison sentence after plea when compared to jury trial outcomes Bench trials and plea rates are much the same Those who plea also receive shorter prison terms 4/14/2017

21 Probability of incarceration much the same for pleas for trial
Plea bargaining cont. Probability of incarceration much the same for pleas for trial 60% plead to most serious charge Plea less likely to result in a prison term Punishment is certain but less severe 4/14/2017

22 Role of the Prosecutor in Plea Bargaining
Few limits on discretion to plea bargain Pleas frequently sought after in weak cases Concessions determined on a case-by-case basis 4/14/2017

23 Defense Counsel’s Role in Plea Bargaining
Acts in an advisory role in negotiations Makes certain accused understands nature of plea bargaining process and the guilty plea 4/14/2017

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