Pretrial Procedures

Chapter 11

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.

Importance of Pretrial

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

The Booking Process

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

Misdemeanor Procedures

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

Arraignment

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.

Felony Procedures

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.

Pretrial Release

To improve the release and detention decisions

To identify those for whom alternatives to incarceration are

appropriate

To monitor pretrial arrestees

Purposes of Pretrial Release Services

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.

Eighth Amendment: Right to Bail

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

Bail Reform

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

Preventative Detention: The Controversy

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

Revocation of Pretrial Release

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.

United States v. Salerno (1987)

Controlled by the prosecutor

Closed and secret deliberations

One sided (ex parta) - Accused not allowed to attend

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.

Criticisms of the Grand Jury

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 “Information” or “Preliminary Hearing” System

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

The Guilty Plea

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.

Nolo Contendere

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

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

Pros and Cons of 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 complainant

Prosecutors in areas with low population are more likely to bargain

Factors Affecting the Decision to Plea Bargain

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

Suggest Safeguards for Plea Bargaining Systems

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 Prosecutor 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 Defense Counsel 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

The Role of the Judge in Plea Bargaining

Make it more:

Visible

Understandable

Fair

Create specific guidelines

Require judicial supervision over the process

Place limits on the process

Plea Bargaining Reform

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?

If Plea Bargaining Was Eliminated ...

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

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

Pretrial Diversion Decision Making