PRETRIAL PROCEDURES PRETRIAL SERVICES What happens before a

PRETRIAL PROCEDURES

PRETRIAL SERVICES What happens before a trial – mostly done by police, prosecutors and sometimes judges Pretrial procedures are important because majority of criminal cases are resolved informally Police may decide not to forward a case Charges can be dropped or dismissed by the prosecutor Plea bargains can be made by prosecutor and defense Competency hearings in front of judges

BAIL Bail: money or some other assurance provided to the court that the defendant will appear at every stage in the criminal justice process. � Types of bail: surety bail, ROR – release on recognizance � Purpose: obtain release from custody for defendant � If defendant fails to appear, bail is forfeited and person is confined in jail until court appearance �

INFORMAL BAIL AGENTS � Bail bonding agencies: � Provide sureties, or bonds, for those who cannot afford the bond � Receive a fraction of the bond as profit for their work � If bailees appears in court, bonding agency gets its money bond back from the courts � If bailees jumps bail and cannot be found, bonding agencies loose their bond

INFORMAL BAIL AGENTS (CONT. ) � Bounty hunters: � Employed by bonding agencies to track down and return bail jumpers, so agencies can get their bond back � Bounty hunters have legal powers to arrest and detain which vary from state to state � Normally licensed by the state

BAIL (CONT. ) � Current data indicate about 2/3 of those arrested made bail � 1/3 are held in custody � 7 percent denied bail � Murder defendants least likely to get bail � 1/3 of those released were rearrested

BAIL RELEASE BY TYPE OF BOND Notice the frequency of different types of bail Question: who receives what type of bail?

BAIL (CONT. ) Purpose is to ensure appearance at trial, not punish Cannot be arbitrarily denied or revoked Critics argue it is discriminatory/objectionable Works against poor � State pays to incarcerate people who would otherwise remain in community � Detainees receive longer sentences than those on bail � Dehumanizing � Racial/ethnic disparity � Preventive detention �

BAIL (CONT. ) � Pretrial services � Created in 1960 s to improve release and detention decisions � 1980 s began to focus on identifying those who were unable to make bail but would be acceptable risks for release � Today virtually all larger jurisdictions have pretrial release in one form or another

BAIL (CONT. ) � Pretrial services programs/responsibilities � Provide information for judges to make release decisions � Assess likelihood of defendant failing to appear or being rearrested � Monitoring conditions of release or provide intensive supervision � Provide special services for those with mental illness

BAIL (CONT. ) � The legal right to bail � 8 th Amendment prohibits excessive bail, it does not guarantee a right to bail. � Stack v. Boyle - If a crime is bailable, the amount set should not be frivolous, unusual or beyond a person’s ability to pay under similar circumstances. � Those unable to post bail, themselves, family or through bondsmen, are held in pretrial detention until trial.

BAIL (CONT. ) � Release on recognizance (ROR) � Pioneered by the Vera Institute of Justice, Manhattan Bail Project in 1961 � concluded that release based on verified information was more effective than money bail � Federal � First Bail Reform Act of 1966 change in federal bail laws since 1789 � release should be under the least restrictive method necessary

BAIL (CONT. ) Federal Bail Reform Act of 1984 – mandated no defendant shall be kept in pretrial detention simply because they cannot afford money bail Community safety and risk of flight considered – allows for preventive detention Critics of bail reform argue emphasis should be placed on controlling the behavior of serious criminals

PREVENTIVE DETENTION � Defendants are held in jail based on the belief that they will commit new crimes while on release or flee jurisdiction or country � Allows for detention without conviction for the protection of the defendant and that of the community � Critics believe it is punishment prior to conviction.

PREVENTIVE DETENTION (CONT. ) � Some state jurisdictions have incorporated element of preventive detention into bail systems � Exclusion of certain crimes from bail eligibility � Definition of bail to include appearance in court and community safety � Limitations on right to bail for those previously convicted

PREVENTIVE DETENTION (CONT. ) Schall v. Martin � Preventive detention of juveniles is constitutional because it is useful to protect the welfare of the minor and society as a whole. United States v. Salerno Upheld 1984 Bail Reform Act’s preventive detention provisions � Preventive detention act had a legitimate and compelling regulatory purpose which does not violate the due process clause. � Society’s need for protection outweighs and individual’s liberty interest. �

PRETRIAL DETENTION � Those unable or ineligible for bail are subject to pretrial detention. � Pretrial custody accounts for more incarceration than imprisonment after sentencing. � Normally held in jails if awaiting trial � Jails considered the weakest link in the criminal justice process – physical and operational conditions

PRETRIAL DETENTION (CONT. ) � Effects of detention (no bail) � Disruption of normal life –work, family � Less likely to prepare effectively for their defense � Appear symbolically guilty when brought to court (clothing, shackles, cuffs) � More likely to be convicted � Receive longer sentence than those released on bail � Less attractive plea bargains

CHARGING THE DEFENDANT � Grand jury � Traced to English common law � Fifth Amendment � Power to act as independent investigating body � Presentment � True bill � No bill

CHARGING THE DEFENDANT (CONT. ) � Grand jury (cont. ) � Controlled by the prosecutor � Closed and secret deliberations � Neither �A accused nor public allowed to attend rubber stamp for the prosecutor � Grand Juries rarely disagree with the prosecutor � Prosecutor need not reveal evidence that might exonerate the accused � Transcripts of Grand Jury hearings remain secret

CHARGING THE DEFENDANT (CONT. ) � Preliminary � Used hearing in about half the states as an alternative to the grand jury to determine probable cause � Open hearing conducted before a judge � Rules of evidence apply � Judge makes decision on whether to bind over for trial � Defendant may waive the hearing

CHARGING THE DEFENDANT (CONT. ) � Arraignment � Occurs after the indictment or preliminary hearing � Filed in the court with jurisdiction to try the facts of the case � Defendant informed of charges and has counsel appointed if necessary � Defendant enters a plea � Guilty plea results in date being set for sentencing � If pleading not guilty a date is set for trial

CHARGING THE DEFENDANT (CONT. ) � Types of pleas � Not Guilty: verbally stated by defendant or entered by court if defendant refuses to answer � Nolo Contendere: (no contest) defendant does not admit guilt but agrees to accept punishment �A nolo conviction cannot be used in a civil trials against the defendant � Alford plea: admits that prosecution has enough evidence to convict by maintains innocence � Guilty: defendant admits criminality

PLEA BARGAINING Most common practice in the criminal court system to resolve cases Who bargains? Prosecutors – it is a win, a conviction; good record � Defense – the clients gets less punishment � Role of the judge – has to agree to the bargain; can reject bargain made between prosecutor and defense � Defendants typically does not participate in the bargaining � Some states allow victims to participate in a limited way �

PLEA BARGAINING Types: what is the bargain about? � Charge bargaining: Reduction of initial charges (e. g. , from felony to misdemeanor) Reduction of the number of charges, drop charges � Sentence bargaining: Recommendation for a lighter sentence to the judge � Recommendation on which judges will decide the case and sentence; some judges are more lenient than others for certain types of offenses (e. g. , domestic violence, drug offenses)

RATES OF PLEA BARGAINING Notice that only murder is plea bargained for less than 50% of all cases

PLEA BARGAINING (CONT. ) � Why bargain in the first place? � A necessity because a of resource constraints: � prevents further overcrowding of courts � Without P-B courts would grind to a standstill � Exercise professional skills: the outcome is the correct one and a certain conviction (avoids the uncertainty of a trial) � Correct � outcome = the worth of a case Avoids factual and legal weaknesses of a case and still leads to a conviction (defendants give up their due process rights when they plead guilty)

PLEA BARGAINING (CONT. ) � Other benefits � Costs of prosecution reduced � Efficiency of courts improved � Defendant avoids lengthy pretrial incarceration and may receive a reduced sentence � Resources devoted to cases that need greater attention � Prosecution devotes more time to serious cases

PLEA BARGAINING (CONT. ) � Opposition to plea bargaining � Encourages defendants to waive their constitutional right to a trial � Dangerous offenders may receive lenient sentences and insufficient punishment (as perceived by victims and the public) � Innocent people may plead guilty if they believe the court is biased and they have little chance of acquittal or to avoid the possibility of harsh punishments

PLEA BARGAINING (CONT. ) � Opposition to plea bargaining (cont. ) � Prosecutors may induce or compel defendants to plead guilty � A “guilty plea culture” develops among defense attorneys. � guilty pleas to “wrong” offense (e. g. , if charge is reduced from felony to a misdemeanor, offenders end up pleading to something they have not done –if charge was properly constructed) � Can encourage prosecutor misconduct – multiple charges

PLEA BARGAINING (CONT. ) Legal issues � � � � Defendants are entitled to effective assistance of counsel. Plea must be made voluntarily and without pressure. Innocent persons can plead guilty to gain a lenient sentence. Both the prosecutor and defendant must honor any promise made. Prosecutors may not threaten to indict defendants on more serious charges if they do not plead guilty. Statements made during negotiations may be used against defendant. Consequences down the road which offenders who plead guilty are not aware of or informed about (e. g. , three strikes implications)

PLEA BARGAINING (CONT. ) n Issues � The (cont. ) impact of sentencing guidelines � Do they eliminate bargaining � Prosecutors and defense know what sentence a judge has to impose � Does bargaining fit a Supermarket or a Bazaar model? How much bargaining actually goes on? � Supermarket – the prize, punishment, is posted � Bazaar – the outcome, punishment, depends on haggling and skills

PLEA BARGAINING (CONT. ) Factors affecting the prosecutor’s decision in plea bargaining � � � � � Nature of the offense Defendant’s prior record and age The type, strength, and admissibility of evidence in the case Attitude of the victim Public opinion Skills of the defense attorney Intangible factors Informal long term relations in the court working group Calendar pressures

PLEA BARGAINING (CONT. ) � Defense attorney’s role Convey plea bargaining offers: “I can get you…” � Provide expert advice: “this is the best you can get…” � Ensure the defendant understands the nature of the plea bargaining process and the guilty plea � Make sure defendants understand the alternatives available to them � Must communicate all plea bargain offers to client � Must abide by the wishes of the defendant to plea bargain or not �

PLEA BARGAINING (CONT. ) Judicial participation in plea negotiations are not advisable because: Creates impression on defendant that he/she could not receive a fair trial � Lessens the ability of the judge to make an objective determination of the voluntariness of the plea � Is inconsistent with theory behind the use of presentence investigation reports � May induce an innocent defendant to plead guilty because s/he is afraid to reject the disposition desired by the judge �

PLEA BARGAINING (CONT. ) Victim’s role � Some argue process is too “victim driven” � Other argue the victims are relegated to a secondary role with no influence � Victims do not have a right to veto a plea bargain � Most agree prosecutor should confer with the victim � In some states, victims can voice their opinions on a proposed plea bargain with the prosecutor

PLEA BARGAINING (CONT. ) Suggestions for reform � Eliminate The it – Is it possible? myth of Alaska: plea bargaining was not abolished � Oversight of negotiations, by whom? � Guidelines to identify suitable types of cases and offenders � Victim participation in plea-bargaining negotiations � Review of prosecutor’s decisions � Written documentation of need and acceptability for a plea bargain in any given case

PRETRIAL DIVERSION � Designed to remove cases from the formal criminal justice process � Avoids stigma of conviction � Reduces costs to the system � Alleviates jail and prison overcrowding � Danger of “net-widening” � Research indicates programs may result in reduced recidivism for some offenders

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