Chapter 9 Pretrial Procedures The Adversary System in

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Chapter 9 Pretrial Procedures: The Adversary System in Action © 2015 Cengage Learning

Chapter 9 Pretrial Procedures: The Adversary System in Action © 2015 Cengage Learning

Learning Objective 1 List the different names given to public prosecutors and indicate the

Learning Objective 1 List the different names given to public prosecutors and indicate the general powers that they have. © 2015 Cengage Learning Jesse Ward via New York Times/Redux Pictures

The Prosecution • Public prosecutor in federal cases is the U. S. attorney. •

The Prosecution • Public prosecutor in federal cases is the U. S. attorney. • Criminal cases are tried by public prosecutors, who are employed by the government. • Referred to as prosecuting attorneys, district attorneys, county attorneys, or city attorneys. • The attorney general is the chief law enforcement officer in any state. • Each jurisdiction has a chief prosecutor who is appointed, or more often, elected. © 2015 Cengage Learning

The Prosecution Chief prosecutors often have numerous assistant prosecutors. Prosecutors act as officers of

The Prosecution Chief prosecutors often have numerous assistant prosecutors. Prosecutors act as officers of the law during criminal trials. During the pretrial period, they have the discretion to determine: Whether a suspect will be charged with a crime The level of charges to be brought against the suspect If and when to stop the prosecution © 2015 Cengage Learning

© Cengage Learning. All Rights Reserved. The Prosecution © 2015 Cengage Learning

© Cengage Learning. All Rights Reserved. The Prosecution © 2015 Cengage Learning

Learning Objective 2 Contrast the prosecutor’s roles as an elected official and as a

Learning Objective 2 Contrast the prosecutor’s roles as an elected official and as a crime fighter. AP Photo/Pablo Martinez Monsivais © 2015 Cengage Learning

The Prosecution • The prosecutor as an elected official: – Must answer to the

The Prosecution • The prosecutor as an elected official: – Must answer to the voters – Subject to community pressure – May use office as a political stepping-stone • The prosecutor as a crime fighter: – Often seen as law enforcement agents – Police-prosecutor conflict – Victim’s rights © 2015 Cengage Learning

Learning Objective 3 Delineate the responsibilities of defense attorneys. ZUMA Press/Newscom © 2015 Cengage

Learning Objective 3 Delineate the responsibilities of defense attorneys. ZUMA Press/Newscom © 2015 Cengage Learning

The Defense Attorney • Provides legal representation to criminal defendants during the court process

The Defense Attorney • Provides legal representation to criminal defendants during the court process – Investigating the incident for which the defendant has been charged. – Communicating with the prosecutor, which includes negotiating plea bargains – Preparing the case for trial. – Submitting defense motions, including motions to suppress evidence. – Representing the defendant at trial. – Negotiating a sentence, if the client has been convicted. – Determining whether to appeal a guilty verdict © 2015 Cengage Learning

Learning Objective 4 Explain why defense attorneys must often defend clients they know to

Learning Objective 4 Explain why defense attorneys must often defend clients they know to be guilty. AP Photo/Atlanta Journal-Constitution, Kent D. Johnson • © 2015 Cengage Learning

The Defense Attorney • The criminal justice system would not be able to function

The Defense Attorney • The criminal justice system would not be able to function if lawyers refused to represent clients they knew to be guilty. • A lawyer must be guided by his or her own conscience. • If a client is so repugnant to the lawyer as to impair the quality of representation, then perhaps the lawyer should drop the case. © 2015 Cengage Learning

The Defense Attorney • Defense Counsel Programs 1. Assigned counsel 2. Contracting attorney programs

The Defense Attorney • Defense Counsel Programs 1. Assigned counsel 2. Contracting attorney programs 3. Public defender programs • Effectiveness of Public Defenders – Unreasonable caseloads – Unreasonable pay – The Strickland standard – Attorney-Client Privilege © 2015 Cengage Learning

Truth, Victory, and the Adversary System • Three basic features of the adversary system:

Truth, Victory, and the Adversary System • Three basic features of the adversary system: 1. A neutral and passive decision-maker, either the judge or the jury 2. The presentation of evidence from both parties 3. A highly structured set of procedures that must be followed in the presentation of that evidence © 2015 Cengage Learning

Learning Objective 6 Identify the steps involved in the pretrial criminal process. AP Photo/Red

Learning Objective 6 Identify the steps involved in the pretrial criminal process. AP Photo/Red Huber, Pool © 2015 Cengage Learning

Pretrial Detention • The initial appearance is the first step after arrest • Charges

Pretrial Detention • The initial appearance is the first step after arrest • Charges are heard and constitutional rights are explained • Eligibility for bail is determined-- the amount or conditions set by the court to ensure that the defendant will appear for further criminal proceedings © 2015 Cengage Learning

Cengage Learning. All Rights Reserved. Pretrial Detention © 2015 Cengage Learning

Cengage Learning. All Rights Reserved. Pretrial Detention © 2015 Cengage Learning

Learning Objective 7 Indicate three influences on a judge’s decision to set bail. Christine

Learning Objective 7 Indicate three influences on a judge’s decision to set bail. Christine Osborne/Corbis © 2015 Cengage Learning

Pretrial Detention • Judges may be influenced by 1. Uncertainty 2. Risk 3. Overcrowded

Pretrial Detention • Judges may be influenced by 1. Uncertainty 2. Risk 3. Overcrowded jails • Prosecutors and bail setting • Defense attorneys and bail setting © 2015 Cengage Learning

Pretrial Detention • Release on recognizance (ROR) • Property bonds • Bail bond agents

Pretrial Detention • Release on recognizance (ROR) • Property bonds • Bail bond agents • Preventive detention © 2015 Cengage Learning

© Cengage Learning. All Rights Reserved. Pretrial Detention © 2015 Cengage Learning

© Cengage Learning. All Rights Reserved. Pretrial Detention © 2015 Cengage Learning

Learning Objective 8 • Identify the main difference between an indictment and an information.

Learning Objective 8 • Identify the main difference between an indictment and an information. AP Photo/U. S. Marshal’s Office, File © 2015 Cengage Learning

Establishing Probable Cause • Preliminary hearing process begins the discovery of information. • Defense

Establishing Probable Cause • Preliminary hearing process begins the discovery of information. • Defense attorneys are entitled to have access to any evidence in the possession of the prosecution relating to the case. • Discovery is the keystone in the adversary process. © 2015 Cengage Learning

Establishing Probable Cause • In some jurisdictions, the grand jury replaces the preliminary hearing.

Establishing Probable Cause • In some jurisdictions, the grand jury replaces the preliminary hearing. • The grand jury is a group of citizens called to decide whether probable cause exists in a case. • Prosecutors can provide “information” which replaces the police complaint as the formal charge against the defendant for the purpose of trial. © 2015 Cengage Learning

Establishing Probable Cause • Grand jury hears evidence presented by the prosecutor – Photos,

Establishing Probable Cause • Grand jury hears evidence presented by the prosecutor – Photos, documents, tangible objects, witness testimony, other items • If the grand jury finds probable cause exists, an “indictment” is presented. © 2015 Cengage Learning

Learning Objective 9 AP Photo/Detroit News, Steve Perez Explain how a prosecutor screens potential

Learning Objective 9 AP Photo/Detroit News, Steve Perez Explain how a prosecutor screens potential cases. © 2015 Cengage Learning

The Prosecutorial Screening Process • Case attrition is the decision by the prosecutor not

The Prosecutorial Screening Process • Case attrition is the decision by the prosecutor not to prosecute the defendant (Nolle Prosequi): – – – – © 2015 Cengage Learning Scarce resources Screening factors Sufficient evidence Case priorities Uncooperative victims Unreliability of victims Defendant who is willing to testify against other offenders

© Cengage Learning. All Rights Reserved. The Prosecutorial Screening Process © 2015 Cengage Learning

© Cengage Learning. All Rights Reserved. The Prosecutorial Screening Process © 2015 Cengage Learning

The Prosecutorial Screening Process • Motion to suppress evidence • Change of venue •

The Prosecutorial Screening Process • Motion to suppress evidence • Change of venue • Invalidate search warrant • Dismiss the case because of the delay in bringing it to trial • Motion to obtain evidence prosecution may be withholding © 2015 Cengage Learning

Learning Objective 10 © Cengage Learning. All Rights Reserved. Indicate the ways that both

Learning Objective 10 © Cengage Learning. All Rights Reserved. Indicate the ways that both defense attorneys and prosecutors can induce plea bargaining. © 2015 Cengage Learning

Pleading Guilty • The Defense – Pretrial motions designed to weaken the state’s case

Pleading Guilty • The Defense – Pretrial motions designed to weaken the state’s case • The Prosecution – Horizontal overcharging – Vertical overcharging • Protecting the Defendant – Boykin v. Alabama, Boykin form © 2015 Cengage Learning

Pleading Guilty • Pleading not guilty – Gain a more favorable plea bargain –

Pleading Guilty • Pleading not guilty – Gain a more favorable plea bargain – Challenge a crucial part of the evidence on constitutional grounds – Submit one of the affirmative defenses © 2015 Cengage Learning

Discussion Questions • You are the victim of a carjacking which has seriously traumatized

Discussion Questions • You are the victim of a carjacking which has seriously traumatized you to the point that you fear getting in your vehicle. • Give your opinion on the perpetrator of your crime plea bargaining your case. • Is this fair? • Discuss the advantages and disadvantages from a prosecutorial and a defense perspective. © 2015 Cengage Learning

Discussion Questions • Name and discuss various cases within your community to which you

Discussion Questions • Name and discuss various cases within your community to which you believe the options of bail are acceptable and not acceptable. • Is there a case of preventive detention that you are familiar with and what are the reasons? © 2015 Cengage Learning

Discussion Questions • Discuss reasons why a change of venue should or could occur

Discussion Questions • Discuss reasons why a change of venue should or could occur in a case. • Discuss what could possibly invalidate a search warrant from a case. • Discuss what information a prosecutor may try to hold so the defense is unaware. © 2015 Cengage Learning