Chapter 8

Pretrial Procedures, Plea Bargaining, and the Criminal Trial

From Arrest to Trial or Plea

At each stage of the pretrial process, key decisions are made that move some defendants to the next stage of the process and filter others out of the system.

• Arraignment: court appearance of an accused person in which the charges are read and the accused pleads

• Motion: application to court requesting that an order be issues

  • EX: order seeking evidence from the prosecution

  • Order seeking exclusion of evidence based on an improper search or seizure

Bail: Pretrial Release

Amount of money paid as a condition of pretrial release to ensure the accused appears in court

• 8th amendment forbids excessive bail but does not guarantee a realistic chance of release

Bail system facilitates discrimination against the poor

• Professional criminals and rich people always make bail

• The average wait is 23 days in jail

• Some people plead guilty just to get back to work

Bail Agents

• Only used by the US and Philippines

• Private business people who are paid fees by defendants who lack the money to make bail

• Licensed by the state and can choose their own clients

• Build relationships with officers and jailers

• Rife with corruption

Setting Bail

• Prosecutors may stress seriousness of crime, defendant’s record, and negative personal traits

• Defense attorney may stress defendant’s good job, family responsibilities, and place in the community

• None of these factors truly speak to dangerousness and there is great bias

Reforming the bail system

• Key focus of many efforts is the elimination of cash bail

• Citation

  • Reduces amount of time police spend booking and waiting in arraignment

• Release on recognizance (ROR)

  • See Washington D.C

• Ten Percent cash bail

  • See Illinois

• Bail Fund

  • See NYC

• Bail Guidelines

• Preventive Detention

  • Hearing by judge

  • Unites States v. Salerno and Cafero

Pretrial Detention

• People who are not released before trial must remain in jail

• American jails hold almost 600,000 people on any one day

• Thus a “presumed innocent” trial detainee might spend weeks in the same confined space with troubled people or sentenced felons

• Although most have case adjudicated within 6 months. 15% of felony defendants wait more than a year

• Some would rather plead guilty than have an indefinite stay in jail

Plea Bargaining

Quick resolution of cases by negotiated guilty pleas

Upheld by Santobello v. New York (1971)

• Advantages for defendants. Prosecutors, defense attorneys, and judges

• Defendants can have their cases completed more quickly and know what the punishment will be

• A process in which prosecutors and defense attorneys interact again and again as they move further along in the judicial process (exchange relationship)

• Tactics: multiple indictment, delay

• Not offered in all cases

Criticisms:

• Defendants give up the constitutional right to trial by jury

• Reduces society’s interest in appropriate punishments for crimes

• Hidden from judicial scrutiny

Trial: The Exceptional Case

• The seriousness of the charge is probably the most important factor influencing the decision to go to trial

• Fewer than 9% of felony cases go to trial

• Only half of these are jury trials

• Bench trials are presided over by a judge without a jury

• A jury is a panel of citizens selected according to law and sworn to determine matters of fact in a criminal case and to deliver a verdict of guilty or not guilty

Jury trial

• Jury evaluates the facts

• Judge referees and ensures jury impartiality

• 6 vital functions in the CJ system:

  • Prevent government oppression by safeguarding citizens against arbitrary law enforcement

  • Determine whether the accused is guilty

  • Represent diverse community interest

  • Serve as a buffer between the accused and the accuser

  • Promote citizens’ knowledge about the criminal justice system through the jury-duty process

  • Symbolize the rule of law

Trial Process

1. Selection of the jury

2. Opening statements by prosecution and defense

3. Presentation of the prosecution’s evidence and witnesses

4. Presentation of rebuttal witnesses

5. Closing arguments of each side

6. Instruction to the jury by the judge

7. Decision by the jury

Voir dire: “to speak the truth” a questioning of prospective jurors to screen out people the attorneys think might be biased or otherwise incapable of delivering a fair verdict

• Presentation of the prosecution’s evidence

• Real evidence

  • Physical evidence such as weapons, records, fingerprints, and stolen property - involved in the crime

• Demonstrative evidence

  • Evidence that is not based on witness testimony

  • Demonstrates information relevant to the crime, such as maps, x-rays, and photographs; includes real evidence

• Testimony

  • Oral evidence provided by a legally competent witness

• Direct evidence

  • Eyewitness accounts

• Circumstantial evidence

  • Evidence provided by a witness from which a jury must infer a fact

Presentation of the defense’s evidence

• Defense is not required to answer the case presented, but normally one of the following occurs

  • Contrary evidence is introduced to rebut or cast doubt on the state’s case

  • An alibi is offered

  • An affirmative defense is presented

• 5th amendment protection against self-incrimination means that the defendant does not have to testify

• Prosecutor may not comment on, nor can the jury draw inferences from, the defendant’s decision not to appear in his or her own defense

Judge’s instructions to the jury

• Jury decides facts; judge decides law

• Judge instructs jury on legal principles to guide their decision

  • One is reasonable doubt: the juror must “satisfied to a moral certainty” rather than wavering or uncertain

• Realistically, juries don’t understand much of these instructions

• There is great social group pressure in jury decision making

Decision by the jury

• May be sequestered

• Jury may deadlock

Appeals

Defendant typically has the right to appeal verdict to a higher court

• May be limited in the case of a guilty plea

• Based on a claim that one or more errors of law or procedure were made during the investigation, arrest, or trial process

• Questions of procedure, not guilt or innocence

After appeals, habeas corpus

• Judicial order requesting that a judge examine whether an individual is being properly detained in a jail, prison, or mental hospital

• Only 1% succeed

• No right to counsel