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Although a person charged with any criminal offense has the right to retain counsel to represent him or her at a summary proceeding, most defendants charged with minor misdemeanors are not represented by counsel.
A principal reason is the expense of retaining a lawyer, which may exceed the fine imposed.
In Scott v. Illinois (1980), the Supreme Court said that indigent persons do not have a right to counsel at public expense unless they are actually sentenced to jail.
Pretrial Process in Cases of Felonies / Major Misdemeanors
There are elaborate pretrial procedures in these cases:
The Grand Jury
The Preliminary Hearing
These procedures are important components of the administration of justice because the great majority of all criminal cases are resolved at this stage and never go to trial.
The Sieve Effect
As cases move through the system from arrest through adjudication and, in many instances, toward the imposition of punishment, there is considerable attrition.
Of any one hundred felony arrests, perhaps as few as twenty-five will result in convictions.
This “sieve effect” occurs for a number of reasons:
transfer of young offenders to juvenile courts
The Initial Appearance in Court
Under the Constitution, a person accused of a crime has the right to a speedy and public trial.
This includes the right to be promptly brought before a judge to be formally apprised of the charges.
In addition to reading the charges, the judge at the first appearance attempts to ascertain whether the defendant is represented by an attorney.
If not, and the defendant is indigent, the judge generally appoints counsel.
Functions of the Initial Appearance
Three important functions:
the charges must be read to the accused;
the accused must be informed of relevant constitutional rights;
the magistrate must decide whether the accused should be released pending trial or remanded to custody to await the disposition of the case.
Modes of Pretrial Release
Release on personal recognizance
Release to the custody of another
Posting an individual bond
Posting a surety bond
The Issue of Excessive Bail
The Eighth Amendment states that “excessive bail shall not be required.”
“ Bail set at a figure higher than an amount reasonably calculated to [ensure the appearance of the accused in court] is ‘excessive’ under the Eighth Amendment.”
Stack v. Boyle (1951)
Federal Bail Reform Act of 1984
Allows federal courts to detain arrestees without bail on the ground of the arrestee’s danger to the community as well as the need to ensure future court appearances.
Pretrial Release Options
Third party custody release
Release on personal recognizance (ROR)
What about the 8th Amendment?
The amendment does not guarantee a right to bail, but a right to no excessive bail
Stack v. Boyle (1951)
If a crime is bailable, the amount set should not be frivolous, unusual or beyond a person’s ability to pay under similar circumstances.
United States v. Salerno (1987)
The Supreme Court held that preventive detention has a legitimate and compelling regulatory purpose and does not violate the due process clause.
Preventive detention was not designed as a punishment, but to prevent danger to the community which is a legitimate societal goal.
Formal Charging Mechanisms
Indictment by a grand jury
– OR –
Preliminary hearing on an “information” filed by the prosecutor
Note: Some states provide for an optional preliminary hearing before the case is sent to the grand jury.
The Grand Jury
In many jurisdictions, prosecutors must obtain an indictment or “true bill” from the grand jury in addition to, or instead of, the preliminary hearing.
The Fifth Amendment to the U.S. Constitution states that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”
The Grand Jury
The grand jury, not to be confused with the trial jury, is a body that considers evidence obtained by the prosecutor in order to determine whether there is probable cause to hold a trial.
Grand juries also have the power to conduct investigations on their own initiative.
Designed to prevent unwarranted prosecutions, the grand jury dates back to twelfth-century England.
The Grand Jury (cont.)
Grand jury proceedings are typically closed to the public.
The prosecutor appears before the grand jury with a series of cases he has built against various defendants.
Witnesses are called and physical evidence is presented.
If the grand jury believes that a given case is substantial, it hands down an indictment, or “true bill.”
Grand Jury Powers
Grand juries possess the authority to:
compel the appearance of witnesses
hold individuals in contempt
grant immunity in exchange for testimony
Types of Immunity
Transactional immunity bars any further prosecution of the witness for the specific transaction to which the witness testified.
Use immunity bars only the use of the witness’s testimony against the witness in a subsequent prosecution.
Criticism of the Grand Jury
In the overwhelming majority of cases, grand juries hand down indictments against persons as requested by prosecutors, leading some to question the utility of the grand jury procedure as a means of guarding against arbitrary or unwarranted prosecution.
Specific Criticisms of the Grand Jury
A rubber stamp for the prosecutor.
The old saying is that “...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
About half of the states have dispensed with or limited the functions of grand juries.
These states have opted instead for charging defendants in a fashion that is less cumbersome and arguably more protective of the innocent.
The “Information” / “Preliminary Hearing” System
The “Information” / “Preliminary Hearing” System (cont.)
The Preliminary Hearing is
Conducted before a judge
Prosecution and defense attend
Witnesses may be confronted
Rules of evidence apply
Judge makes decision on whether to bind over for trial
The arraignment is the accused’s first appearance before a court of law with the authority to conduct a criminal trial.
At this stage of the process, the accused must enter a plea to the charges contained in the indictment or information.
Entering a Plea
The defendant has four options:
plead guilty, in which case guilt will be pronounced and a date set for sentencing;
plead not guilty, in which case a trial date will be set;
plead nolo contendere , or no contest, which is tantamount to a plea of guilty;
remain silent, in which case the court enters a plea of not guilty on behalf of the accused.
The Guilty Plea
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
Nolo Contendere (No Contest 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 civil suit arising out of the same action.
In most jurisdictions, more than 90% of felony suspects arraigned plead guilty or no contest.
Many guilty pleas result from plea bargaining.
Enables the parties to avoid the delay and uncertainties of trial and appeal.
Permits swift and certain punishment of law violators with a sentence tailored to the circumstances of the case at hand.
Despite constitutional attacks, the Supreme Court has upheld the practice of plea bargaining.
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
The prosecutor may offer:
Pros and Cons of Plea Bargaining
Concentrate on serious cases
Avoids pretrial detention and delays
Encourages defendants to waive constitutional rights
Results in lesser sentences and sentencing disparity
May coerce innocent to plead guilty
Factors Affecting the Decision to Plea Bargain
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
Reforming Plea Bargaining
Make it more:
Create specific guidelines?
Require greater judicial supervision over the process?
Place limits on the process?
Give victims a veto?
If Plea Bargaining Was Eliminated....?
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?
What are the advantages?
Avoids stigma of conviction
Reduces costs to the system
Alleviates jail and prison overcrowding
What is it? Placing offenders into non-criminal programs prior to trial and conviction.
Pretrial Diversion Factors
Nature of the crime and offender
Impact on the community
Prosecutor’s Duty to Disclose Exculpatory Evidence
The Supreme Court has stated that “the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady v. Maryland (1963)
Speedy Trial Act of 1974
Provides specific time limits for pretrial and trial procedures in the federal courts.
An indictment must be filed within thirty days of arrest, and trial must commence within seventy days after the indictment.
If the defendant’s trial does not begin within the time limitations and the defendant enters a motion to dismiss the charges, the district court must dismiss the charges.
Joinder and Severance
Common Pretrial Motions
to dismiss the charges against the accused.
to determine the competency of the accused to stand trial.
to suppress evidence obtained through unlawful search.
to suppress confessions, admissions, or other statements.
to suppress a pretrial identification of the accused.
to require the prosecution to disclose identity of informant.
Common Pretrial Motions (cont.)
change of venue.
to take a deposition to preserve the testimony of a witness.
to inspect the minutes of the grand jury proceeding.
to compel the prosecutor to disclose evidence that might be favorable to the accused.