Pretrial Procedures and Trial Process

This chapter covers trial advocacy and evidence, including elementary concepts and semantics that may appear on the test.
The instructor is simplifying the test to cover essential knowledge due to the class's high performance.
The chapter starts by referring to an arrested person as "alleged" because they haven't been found guilty through trial or plea bargaining.

Bail

Bail is discussed as a process with different hearings occurring at intervals.
The first hearing determines bail amount.
Texas bail reform focuses on denying bail to individuals deemed violent criminals or risks to society, especially if they have harmed others while out on bail.
This contrasts with Illinois' bail reform, which aimed to address disparities where people were held for months due to inability to pay bail.
The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments.
However, there is no absolute constitutional right to bail; it can be denied based on the crime or the arrestee's circumstances.

Initial Appearance

After an arrest, the first step is establishing probable cause for the alleged offense.
An example is given: A person being pulled over for not using a blinker, the defense could argue there were no other cars present.
After probable cause is established, the process moves to administrative tasks like booking.
Booking: recording name, address, telephone number, fingerprints, identifiers, and mugshot.
Screening for mental health issues is also part of the booking process to prevent individuals with undiagnosed medical issues from being placed in the general jail population.
Magistrates (lower-level judges) assess bail, informing the arrestee of the offense.
Criteria for bail include strong community ties and low likelihood of fleeing.
Release on recognizance aims to avoid financial burdens on defendants, as counties do not profit from bail; bondsmen do.
The cost of a bond is typically 10% of the bail amount, which is a non-refundable bondsman fee.

Bondsman Side Story:

Bondsmen sometimes purchase tax foreclosed property to pledge as assets.
Forfeited bonds result in the municipality or county acquiring the property.
Case-by-case decisions are made regarding bail, considering factors such as employment and family ties.
Being out on bail facilitates easier preparation for defense.
Staying in jail can lead to job loss, vehicle loss, housing loss, and family issues, as well as county expenses.
Release on recognizance is generally at the magistrate's discretion.
Strong community ties and low flight risk are key arguments for defense attorneys.
The purpose of bail is to ensure appearance for future court dates.
Those unable to afford the 10% bondsman fee may remain in jail until trial.
Bail reform initiatives, like Illinois', address the discriminatory impact on the poor/indigent.
Poor defendants may remain in jail, hindering their ability to prepare a defense or communicate with attorneys effectively.
Disparities exist in bail bonds within and between counties.
The text mentions that female defendants may be granted more lenient pretrial release or face lower bail, but this is uncertain.
Denial of bail can occur in cases involving sexual predators if proof is evident and guilt is presumed.
The 1984 Bail Reform Act introduced alternatives to bail, such as curfews, regular reporting, restrictions on associations, and maintaining employment.
Studies suggest defendants released on their own recognizance are more likely to fail to appear, but it is still practiced due to jail overcrowding.
Dog the Bounty Hunter is mentioned as a legitimate tool for apprehending those who forfeit bail.

Preliminary Hearing

The next step is a preliminary hearing a few weeks later to determine if probable cause exists.
The defendant hears the charges, and evidence is reviewed.
It assesses the likelihood that a crime was committed and the defendant committed it.
Defendants may be released if the case is deemed weak.
If released, the prosecutor can still seek an indictment from a grand jury.
Grand jury proceedings involve only the prosecutor's evidence, with no defense presented.
Defendants can waive or have the preliminary hearing to expedite the process.

Arraignment

At the arraignment, defendants are informed of formal charges and enter a plea: guilty, not guilty, or no contendere (no contest).
No contest does not admit liability and may be used in corporate criminal charges to avoid civil liability.
The events can go to a grand jury or information, especially in lesser offenses.
A guilty plea equates to confessing guilt in open court, involving constitutional rights and admonishments to ensure awareness.
If the defendant has no attorney, one is appointed.
Defendants must confirm they are not coerced and understand their right to a trial by jury.
A guilty plea is difficult to appeal due to this thorough process.
A not guilty plea sets a trial date.
Charges can be refined by the prosecutor as evidence evolves.

Speedy Trial

The Speedy Trial Act of 1974, based on the Sixth Amendment, ensures defendants are brought to justice promptly.
Federal law defines it as 100 days, but this is often not the case in practice because of allowed exceptions.
Continuances requested by the defense or changes in counsel can extend the timeline.
Egregious violations can lead to charges being dropped.
States are not required to comply with the 100-day federal rule.
The law specifies 70 days from the date of information or indictment.
Defense attorneys may delay for practical reasons, such as ongoing payments from the defendant before incarceration.

Jury Trial

The Judge will question the defendant to make sure they fully understand waiving the right for a jury trial if the defendant were to give up that right.
If the Judge, not the jury, hears the evidence, that's a bench trial; it's faster and less emotional. Less chance there is emotion, then there's less emotional decision.
Bench trials focus on the merits of the case, are less expensive, and can be faster.
Judges are less likely to be biased by the defendant's appearance.
In a bench trial, the punishment may be more severe.
Trial Procedure: Motions and Opening Statements
Pretrial motions are significant for defense attorneys.
Motions in limine: prevent prejudicial evidence from being introduced.
Motions to suppress: exclude illegally obtained evidence.
Wong Sun versus United States:
- Deals with the "fruit of the poisonous tree" doctrine.
- Evidence from an illegal search or interrogation is inadmissible.
- The defense attorney must establish the illegal origins of the evidence.
Motion to dismiss: dismiss charges due to lack of evidence.
Motion for discovery: request access to evidence.
Motion for continuance: request more time.
Motion for severance: request separate trials for co-defendants with disparate defenses.
Motion for suppression of evidence: suppress illegally seized evidence.
Motion for determination of competency: assess the defendant's mental competency.
Motion for change of venue: move the trial due to prejudicial publicity.
Motion for intention to provide alibi: provide notice of alibi defense.
Motion for summary judgment: argue the prosecution lacks sufficient evidence.
Defense attorneys earn their keep through effective motion practice.
The prosecution presents their opening statement first, followed by the defense.
Statements must not be inaccurate and should focus on what the attorney hopes to prove.
The prosecution calls the witnesses first.
That way you can keep a record in case that evidence affects the ruling later down the line.
Cross Examination:
- Right to cross examine from the defense after the state has presented the witness.

Impeaching a Witness

Impeaching a witness involves calling their truthfulness into question.
Perceived lies can undermine a witness's credibility.
Both parties can impeach witnesses during cross-examination.
Expert witnesses: can offer opinions, interpret evidence, and provide explanations.
Laypersons cannot offer opinions.
Eyewitness testimony: programs exist to assist witnesses through the trial process.
Be mindful of eyewitness testimony form a child

Child Witnesses

Children over 14 can be witnesses if they know the difference between truth and falsehood.
Younger children can be relied upon, sometimes through videotaped testimony.
Child witnesses are considered the least dependable and most dangerous type of witness.

Summation

Prosecution goes first
During summations, the prosecution restates the evidence and appeals to the jury's sensibilities.
Jurors may still equate a defendant's silence with guilt, despite Fifth Amendment protections.
Defense attorneys explain the defendant's right not to testify.
Jury instructions may advise against incriminating the defendant for not testifying.
A not guilty verdict does not mean the defendant is innocent.

Jury Deliberations

*Federal level has to be unanimous unless there are less jurors that end up doing the deliberation.

Federal cases: require a unanimous verdict unless only 11 jurors remain.
States can vary, with some allowing verdicts of 9-3 or 10-2.
Six-person juries must be unanimous.
Mistrials: occur if there are irregularities or errors, leading to a new trial.
Prosecutors assess the likelihood of winning a second trial and the associated costs.
Judges can poll jurors to assess undue influence or pressure.
Mistrials: may result from a juror keeping a journal or seeking notoriety.
If jurors are there to receive justice.
After the verdict, innocent have an acquittal, but you may appeal if guilty.
Appeals process: state cases go to appellate court, then the court of criminal appeals (Texas' supreme court for criminal cases), and potentially the U.S. Supreme Court.