Pretrial and Trial Procedures - Chapter 10

Procedures Following Arrest

• After an arrest, the accused is taken to the police station where possible criminal charges are listed and information is obtained for booking.

  • Booking includes recording suspect descriptions and offense circumstances.

  • Suspects may be fingerprinted, photographed, and participate in lineups.

  • Arrestees are usually detained until a criminal complaint is filed.

• Complaint: A formal written document that:

  • Identifies the criminal charge.

  • Includes the date and place of the crime.

  • Details the circumstances of the arrest.

  • Is signed under oath by the complainant.

  • Requests the defendant's presence at an initial hearing (Arraignment).

• Arraignment: The initial hearing where:

  • The judge informs the defendant of the charge.

  • Ensures proper representation by counsel.

  • Determines bail or other release pending hearing/trial.

• The defendant may plead guilty (immediate case disposal) or not guilty (trial date set, release on bail).

• For felonies, probable cause is proven via:

  • Indictment from a grand jury.

  • "Information" issued by a lower court.

• Bail allows the defendant to prepare a defense in the community.

• Some may enter court-based treatment programs early.

Bail

• Bail is a form of security to secure release before trial, ensuring the defendant returns for trial.

  • Failure to appear results in forfeiture.

  • It cannot be used to punish the accused but enables defense preparation and prevents lengthy pretrial detention.

The Legal Right to Bail

• Criminal defendants were traditionally eligible for release before trial.

• The Statute of Westminster in 1275 set out bailable and non-bailable offenses.

• The Judiciary Act of 1789 set conditions for bail, and the Eighth Amendment prohibits "excessive bail."

• No constitutional right to bail exists; it should ensure the defendant returns for trial, not as punishment.

• Defendants have the right to reasonable bail and bail review hearings.

• Stack v. Boyle (1951): Bail is a traditional right to freedom before trial, permitting defense preparation and preventing punishment before conviction; it should align with similar offenses.

Making Bail

• Most criminal defendants are released before trial.

• Bail is considered at a court hearing, accounting for crime type, flight risk, and dangerousness.

• Prior criminal records impact release.

• Some jurisdictions use bail schedules for uniformity.

Alternative Bail Release Mechanisms

• Police field citation release: Release on a written promise to appear in court at the time/location of arrest (common for misdemeanors).

• Police station house citation release: Release deferred until after the arrestee is brought to the station house.

• Police/pretrial jail citation release: Release deferred until after delivery to a jail for screening, booking, and admission.

• Pretrial/court direct release by pretrial bail program: Pretrial programs release defendants without direct judicial involvement (typically for misdemeanors).

• Police/court bail schedule: Posting bail at the station house or jail according to a schedule.

Types of Bail

• Full cash bail: Payment of the full bail amount.

• Deposit bail: Deposit a percentage of the bail amount which is returned when the defendant appears.

• Surety bail: Paying a percentage to a bonding agent (fee not returned).

• Conditional bail: Release based on abiding by specified conditions.

• Unsecured bond: Release without immediate payment, liable for full amount if failure to appear.

• Release on recognizance (ROR): Release without bail upon a promise to return for trial.

Pretrial Detention

• Defendants ineligible for bail or ROR undergo pretrial detention.

• Jails conditions are often poor.

• Pretrial custody accounts for more U.S. incarceration than imprisonment after sentencing; over 60% of those in local jails are pretrial detainees.

• High detention rates compared to Canada and Great Britain.

Reforming Criminal Justice: Eliminating Cash Bail

• Kenneth Humphrey case: Highlighted issues of excessive bail for minor offenses disproportionately affecting the poor and violating the Eighth Amendment.

• SB10 in California (2018):

  • Aimed to eliminate cash bail but was rejected by voters in 2020.

• Arguments for and against eliminating cash bail:

  • Concerns over cost and court appearances vs. racial and economic equity.

• National trends in bail reform: Various states are exploring bail reforms.

Evidence-Based Justice: Which Bail Release Mechanism is Most Effective?

• Limited research on the most effective bail release mechanism.

• BJS study: Pretrial misconduct was highest for unsecured bonds and emergency release, lowest for property bonds.

• Recent Dallas study: Commercial bail was least likely to abscond, pretrial services least effective.

Pretrial Services

• Defendants with community ties promise to appear without posting bail.

• Reduce the importance of money bonds and bonding agents.

• Federal Bail Reform Act of 1966 formalized conditions before money bail is required.

• The Bail Reform Act of 1984 included prevention detention provisions.

Preventive Detention

• Preventive detention statutes confine dangerous defendants before trial for their own and the community's protection.

• The Bail Reform Act of 1984 allows judges to order preventive detention.

• Schall v. Martin: Upheld preventive-detention statutes for juvenile defendants.

• United States v. Salerno: Upheld the Bail Reform Act's denial of bail to dangerous defendants.

Pretrial Services

• Help courts determine which defendants can safely be released on bail pending trial.

• Services include gathering information, assessing failure to appear, supervising defendants, and notifying the court of release conditions.

• Programs now focus on special needs like mental illness and domestic violence.

Charging the Defendant

• Charging a defendant is a critical stage based on case facts and evidence strength.

The Indictment Process: The Grand Jury

• Grand jury was created as a check against prosecution (Magna Carta, 1215).

• Fifth Amendment: Requires indictment for the capital offenses.

• Power to act as an independent agency that examines a possibility of criminal activity.

  • Community's conscience determining if state accusations justify trial.

• The grand jury can rely on the testimony of witnesses and decide whether probably cause exists.

  • If so, it affirms the indictment; otherwise, it passes a "no bill."

  • Made of 16-23 individuals.

Reforming the Grand Jury?

• United States v. Williams (1992): No supervisory power in federal court requires presentment to a grand jury of evidence that clears a defendant.

The Information Process: The Preliminary Hearing

• Used as an alternative to a grand jury in about half the states.

• Establishes sufficient probable cause for a trial.

• Involves prosecuting attorney, defendant, and defense counsel.

• The defense counsel has the right to cross examine witnesses and to challenge the prosecutor's evidence.

• If sufficient cause is found, the case is bound over for trial.

Arraignment

• Takes place after indictment or information is filed.

• Judge informs the defendant of the charges (Sixth Amendment) and ensures they are understood.

• A trial date is set if the plea is not guilty by reason of insanity.

• If the defendant pleads guilty or nolo contendere, a sentencing date is arranged.

The Plea

• A defendant will enter a plea on three different ways

Guilty

• More than 90% of defendants plead guilty prior to the trial stage.

• Functions as an admission of guilt.

  • A surrender of trial rights.

• Must be understood and valid.

Not Guilty

• Orally stated by the defendant's council, or entered by the court when there is mute.

Nolo Contendere

• Basically a plea of guilty but cannot be held as such in other proceedings.

  • Accepted at the discretion of the trial court.

Plea Bargaining

• Exchange of concessions for guilty pleas.

• Reasons can include reducing the charges, promising recommendations for bail, and dispensing punishment fairly.

Pros and Cons for Plea Bargaining

• Pros: Reduces costs, improves court efficiency, allows prosecution to focus on serious cases, and offers defendants leniency.

• Cons: Encourages waiving constitutional rights, may lead to innocent convictions, circumvents the law, and may be influenced by race.

The Problem of False Confessions

• Some defendants plead guilty to crimes they didn't commit due to duress, coercion, intoxication, or diminished capacity.

Legal Issues in Plea Bargaining

• Defendants are entitled to effective and honest assistance to protect from external pressure.

The Role of the Prosecutor in Plea Bargaining

• Prosecutors have broad discretion in deciding what cases to charge.

The Role of the Defense Counsel in Plea Bargaining

• Defense counsel must advise the defendant and negotiate effectively.

The Role of the Judge in Plea Bargaining

• The judge's proper role is challenging; ABA is against it, as it may impede a fair/voluntary determination since Judge's role is limited to approval or disapprovals

The Victim and Plea Bargaining

• Victim involvement is limited before pretrial.

Plea-Bargaining Reform

• Aims to enhance fairness by ensuring rights are understood, counsel is present, defense is openly discussed, and judicial supervision is properly applied.