1. Chapter 17
The Pretrial Process

2. The Right to Counsel The Gideon Decision
In 1963, the Supreme Court decided that the 14th Amendment requires states to provide counsel to indigent defendants in all felony cases, observing that any person haled into court, who is too poor to hire an attorney, cannot be assured a fair trial unless counsel is provided for them.

3. The Right to Counsel
Actual Imprisonment Standard – right of an indigent (poor) person to have counsel appointed in a misdemeanor case. For the right to be violated, the indigent defendant must actually be sentenced to jail or prison after having been tried without appointed counsel.

4. The Right to Counsel
Critical Pretrial Stages – procedural steps that occur preliminary to a criminal trial. Defendant has right to counsel at these critical stages.
Public Defender – an attorney appointed ad hoc by the court.

5. The Right to Counsel
In most jurisdictions, more than 75% of felony defendants are classified as indigent (poor). Some state statutes provide for an assessment of an attorney’s fee against a defendant who is represented by the public defender’s office.

6. The Right to Counsel
Self-Representation – a defendant who waives his right to counsel and proceeds pro se (on one’s own behalf) must do so knowingly and intelligently.

7. The Initial Court Appearance
Magistrate must perform three important functions at the initial appearance:
Charges must be read so the accused knows exactly what he is being charged with.
Accused must be informed of relevant constitutional rights, including right to remain silent and right to counsel.
Determination must be made of whether the accused should be released pending trial or remain in custody to await disposition of the case.

8. Pretrial Release and Pretrial Detention
Pretrial Release – release of defendant on bail until trial.
Four most common forms of pretrial release:
Personal Recognizance – promise to appear in court. Defendant signs a guarantee to appear at all required proceedings.
Release to the Custody of Another – defendant is released to someone responsible.
Posting an Individual Bond – posting bond and agreeing to appear in court
Posting a Surety Bond – usually an insurance company.

9. Pretrial Release and Pretrial Detention
The Supreme Court has ruled that there is no right to bail under the 8th Amendment. The Federal Bail Reform Act of 1984, allows federal courts to detain arrestees without bail on the ground of the arrestee’s dangerousness to the community, as well as the need to ensure future court appearances.

10. The Formal Charging Process
Prosecutorial Discretion – prosecutors decide whether or not to bring charges and to engage in plea bargaining.
Plea Bargain – agreement between defendant and prosecutor. Plea guilty in exchange for some concession (reduction in charges).

11. The Formal Charging Process
Information – formal accusatorial document detailing the specific charges against a defendant. After filing the information, a hearing may be requested to determine the sufficiency of evidence in support of the information.

12. The Formal Charging Process
Preliminary Hearing – judge examines the state’s case to determine whether there is probable cause to bind the accused over to the grand jury or hold the accused for trial.
The Supreme Court has said that when an arrest is made without a warrant, a preliminary hearing is constitutionally required in the absence of grand jury review to determine the sufficiency of an information.
In a preliminary hearing the defense has the privilege of cross-examining witnesses for the prosecution and can learn the details and strengths of the state’s case.

13. The Grand Jury
Indictment (true bill) – formal document handed down by a grand jury accusing a person of the commission of a crime. This is done in addition to or instead of a preliminary hearing.
Grand Jury is usually closed, unlike the preliminary hearing.
Defendant is generally not represented by counsel or even present as the proceeding.
Testimony is not always transcribed.

14. The Grand Jury
Subpoena – judicial order to appear at a certain place and time to give testimony.
Immunity – exemption from civil suit or prosecution.
Transactional Immunity – bars any further prosecution of the witness for the specific transaction to which he testified.
Use Immunity – barring only the use of the witness’s testimony against him in a subsequent prosecution.

15. The Grand Jury Rights of Witnesses and Suspects:
-The Supreme Court has held that grand jury witnesses retain their 5th Amendment privileges against compulsory self-incrimination.
-Witnesses testifying before grand juries have no right to be represented by counsel.

16. The Grand Jury Evidence Before the Grand Jury:
Many rules that apply to the criminal trial do not apply to the grand jury.
Ex: Hearsay evidence is generally admissible, whereas at trial, it is not admitted over the defendant’s objection. Evidence excluded from trial on 4th or 5th Amendment grounds is admissible before the grand jury.

17. Extradition
Extradition – surrender, on demand, of an individual accused or convicted of an offense within the territorial jurisdiction of the demanding government and outside the territory of the ceding government.
Most states have adopted the Uniform Criminal Extradition Law that sets out procedural rules for handling interstate extradition. The governor of the demanding state issues a requisition warrant seeking return of the fugitive.

18. Jurisdiction and Venue
Jurisdiction – authority of the court to hear and decide certain legal disputes.
Venue – place of the trial.
Capias – That you take. Court orders requiring that some named person be taken into custody.
Change of Venue – removal of legal proceeding to a new location.

19. Joinder and Severance
Joinder and Severance – uniting for trial in one case of different charges or counts alleged in an information or indictment.
The Double Jeopardy Clause bars successive prosecution for the same offense.
The basic test by the Supreme Court for determining whether there are two separate offenses is whether each provision requires proof of an additional fact that the other does not. A defendant cannot be convicted of an offense and a lesser included offense.

20. Severance
Severance of the Charges – conducting multiple trials for multiple charges. A judge often grants this on the motion of either the defense or prosecution.

21. Pretrial Motions
Pretrial Motion – written requests to the court on behalf of the government or the defendant.
Common pretrial motions:
Motion to dismiss
Motion to determine the competency of accused to stand trial
Motion to suppress evidence
Motion to suppress confessions
Motion to suppress a pretrial identification of accused
Motion to require the prosecution to disclose identity of confidential informant
Motion for change of venue
Motion for a continuance
Motion to take deposition

22. Arraignment
Arraignment – accused’s first appearance before a court of law. Accused must enter a plea to the charges contained in the indictment or information.
A plea of guilty containing a protestation of innocence, sometimes called an Alford Plea, can be made when a defendant intelligently concludes that his interests require entry of a guilty plea.
No Contest Plea, provides the accused the advantage that it generally cannot be construed as an admission of guilt in a related civil suit.

23. Plea Bargaining
Plea Bargain – accused agrees to plead guilty in exchange for a reduction in the number of severity of charges or a promise by the prosecutor not to seek the maximum penalty allowed by law.

24. Availability of Compulsory Process
Compulsory Process – to obtain witnesses in your favor. This right is secured through the use of a subpoena.

25. Pretrial Discovery
Exculpatory Information – exonerates or tends to exonerate a person from fault or guilt.
A defendant is entitled to disclosure of information that might be used to impeach government witnesses.

26. The Right to a Speedy Trial
The Supreme Court refused to mandate a specific time limit between the filing of charges and the commencement of trial, but adopted a balancing test to determine whether a defendant was denied the right to a speedy trial. Courts must consider:
length of the delay
reasons for delay
defendant’s assertion of the right
prejudice to the defendant

27. The Right to a Speedy Trial
Speedy Trial Act:
An indictment must be filed within 30 days of arrest
An arraignment must be held within 10 days of indictment
A trial must commence within 70 days after indictment
Violations of the time limitations are remedied by dismissal of charges.
There are exceptions to time limits, especially where delays are caused by defendants’ motions.