Chapter 10 pretrial and trial procedures

Bail

A cash bond or other security intended to ensure the defendant appears

bond helps ensure appearance at every stage

without bail, defendant remains in custody

failure to appear > forfeit the bond or security

right to bail

8th amendment > protect from ‘excessive bail’

bail may not be used as punishment

amounts should be consistent to similar cases

as the chances of fleeing increases, bail may increase

setting bail

felony cases, bail set at a formal hearing

less serious cases, bail may be set by policy

amount is calculated considering

severity of the current offense

offender’s criminal history

offender’s ability and/or means to flee

Pretrial Detention

pretrial detention conditions

conditions of jails

length of sentences

prevention detention

preventive detention

defendants own protection

safety of community

pretrial procedures

vast majority of criminal cases are resolved during pretrial, never come before the court

avoids the expense of a trial

keeps cases from clogging the system

pretrial diversion

a noncriminal alternative to trial

usually features counseling, job training and education

designed to improve rather than punish the offender

meant to reduce stigma created by the formal process

some disagreement over whether these programs work

indictment and grand jury process

grand jury is independent body

general crime or specific individual

“presentation” and recommendation

information process and preliminary hearing

is evidence sufficient to charge

differences to grand jury

conducted before judge

open hearing, unlike grand jury

defendant and counsel are also present

defendant may waive, unlike grand jury

arraignment

6th amendment right to be informed of charges

the plea

guilty

not guilty

nolo contendere

plea bargaining (exchange of concessions for pleas of guilty)

initial charges may be reduced

initial counts may be reduced

may promises to recommend lenient sentence

change of charge to avoid social embarrassment

the pros

reduces cost of criminal prosecution

improves efficiency of the court

allows defendant to avoid detention and trial

devotes resources to more serious cases

the cons

encourages defendants to waive right to trial

lenient sentences > dangerous criminals

convictions of the innocent

allows prosecutors more leeway, possibly circumventing the law

developed guilty-plea culture re defense lawyers

Defense Counsel’s Role in Bargaining

advocates for the client to get the best deal possible

ensures defendant understands charges and punishment

judge’s role in plea bargaining

the american bar association opposes judicial participation in plea negotiations

responsible for approving plea bargains

plea bargaining reform (negotiation oversight)

provide consistency in plea bargaining cases

develop guidelines that parties must follow

plea bargaining (banning plea bargaining)

when tried, it tends to “clog the system”

number of trials may increase, the sentence severity may chance, and more questions about right to speedy trial may arise

prosecutors may dismiss more cases outright

The trial

a criminal trial is an open and public hearing, unless closed by the judge

attention is to determine guilt or innocence

may be heard by a jury

the rights during the trial

right to an impartial judge

right to be competent at trial

right to compulsory process

right to an impartial jury

right to counsel at trial

right to a public trial

right to be convicted beyond a reasonable doubt

reasonable suspicion

warrants investigations of crime

probable cause

standard for arrest and search warrants

required by constitution

the trial process

1.jury selection

2.opening statements

3.prosecution’s case

4.the criminal defense

5.closing arguments

6. instructions to the jury

7.deliberations and verdict

8.the sentence

9.appeals

testimonial

witnesses, police, experts

real

physical, crime scene photos, etc

documentary

reports, records, DNA

circumstantial

inferred, indirect