Chapter 17 The Pretrial Process. The Right to Counsel The Gideon Decision In 1963, the Supreme Court decided that the 14 th Amendment requires states

Chapter 17Chapter 17

The Pretrial ProcessThe Pretrial Process

The Right to CounselThe Right to Counsel

The Gideon DecisionThe Gideon Decision In 1963, the Supreme Court decided In 1963, the Supreme Court decided

that the 14that the 14thth Amendment requires Amendment requires states to provide counsel to indigent states to provide counsel to indigent defendants in all felony cases, defendants in all felony cases, observing that any person haled into observing that any person haled into court, who is too poor to hire an court, who is too poor to hire an attorney, cannot be assured a fair trial attorney, cannot be assured a fair trial unless counsel is provided for them.unless counsel is provided for them.


Actual Imprisonment StandardActual Imprisonment Standard – right of an – right of an indigentindigent (poor) person (poor) person to have counsel appointed in a to have counsel appointed in a misdemeanor case. For the right to misdemeanor case. For the right to be violated, the indigent defendant be violated, the indigent defendant must actually be sentenced to jail must actually be sentenced to jail or prison after having been tried or prison after having been tried without appointed counsel.without appointed counsel.


Critical Pretrial StagesCritical Pretrial Stages – – procedural steps that occur procedural steps that occur preliminary to a criminal trial. preliminary to a criminal trial. Defendant has right to counsel at Defendant has right to counsel at these critical stages.these critical stages.

Public DefenderPublic Defender – an attorney – an attorney appointed ad hoc by the court.appointed ad hoc by the court.


In most jurisdictions, more than In most jurisdictions, more than 75% of felony defendants are 75% of felony defendants are classified as classified as indigentindigent (poor). (poor). Some state statutes provide for Some state statutes provide for an assessment of an attorney’s an assessment of an attorney’s fee against a defendant who is fee against a defendant who is represented by the public represented by the public defender’s office.defender’s office.


Self-RepresentationSelf-Representation – a – a defendant who waives his right to defendant who waives his right to counsel and proceeds counsel and proceeds pro sepro se (on (on one’s own behalf) must do so one’s own behalf) must do so knowingly and intelligently.knowingly and intelligently.

The Initial Court The Initial Court AppearanceAppearanceMagistrate must perform three important Magistrate must perform three important

functions at the initial appearance:functions at the initial appearance:1.1. Charges must be read so the accused knows Charges must be read so the accused knows

exactly what he is being charged with.exactly what he is being charged with.

2.2. Accused must be informed of relevant Accused must be informed of relevant constitutional rights, including right to constitutional rights, including right to remain silent and right to counsel.remain silent and right to counsel.

3.3. Determination must be made of whether the Determination must be made of whether the accused should be released pending trial or accused should be released pending trial or remain in custody to await disposition of the remain in custody to await disposition of the case.case.

Pretrial Release and Pretrial Release and Pretrial DetentionPretrial Detention Pretrial ReleasePretrial Release – release of – release of

defendant on bail until trial.defendant on bail until trial.– Four most common forms of pretrial Four most common forms of pretrial

release:release: Personal RecognizancePersonal Recognizance – promise to appear in – promise to appear in

court. Defendant signs a guarantee to appear at court. Defendant signs a guarantee to appear at all required proceedings.all required proceedings.

Release to the Custody of AnotherRelease to the Custody of Another – – defendant is released to someone responsible.defendant is released to someone responsible.

Posting an Individual BondPosting an Individual Bond – posting bond and – posting bond and agreeing to appear in courtagreeing to appear in court

Posting a Surety BondPosting a Surety Bond – usually an insurance – usually an insurance company.company.

Pretrial Release and Pretrial Release and Pretrial DetentionPretrial Detention

The Supreme Court has ruled that The Supreme Court has ruled that there is no right to bail under the there is no right to bail under the 88thth Amendment. The Federal Bail Amendment. The Federal Bail Reform Act of 1984, allows federal Reform Act of 1984, allows federal courts to detain arrestees without courts to detain arrestees without bail on the ground of the bail on the ground of the arrestee’s dangerousness to the arrestee’s dangerousness to the community, as well as the need to community, as well as the need to ensure future court appearances.ensure future court appearances.

The Formal Charging The Formal Charging ProcessProcess Prosecutorial DiscretionProsecutorial Discretion – –

prosecutors decide whether or not prosecutors decide whether or not to bring charges and to engage in to bring charges and to engage in plea bargaining.plea bargaining.

Plea BargainPlea Bargain – agreement – agreement between defendant and prosecutor. between defendant and prosecutor. Plea guilty in exchange for some Plea guilty in exchange for some concession (reduction in charges).concession (reduction in charges).

The Formal Charging The Formal Charging ProcessProcess InformationInformation – formal – formal

accusatorial document detailing accusatorial document detailing the specific charges against a the specific charges against a defendant. After filing the defendant. After filing the information, a hearing may be information, a hearing may be requested to determine the requested to determine the sufficiency of evidence in support sufficiency of evidence in support of the information.of the information.

The Formal Charging The Formal Charging ProcessProcess Preliminary HearingPreliminary Hearing – judge examines the – judge examines the

state’s case to determine whether there is state’s case to determine whether there is probable cause to bind the accused over to probable cause to bind the accused over to the grand jury or hold the accused for trial.the grand jury or hold the accused for trial.– The Supreme Court has said that when an arrest is The Supreme Court has said that when an arrest is

made without a warrant, a preliminary hearing is made without a warrant, a preliminary hearing is constitutionally required in the absence of grand constitutionally required in the absence of grand jury review to determine the sufficiency of an jury review to determine the sufficiency of an information.information.

– In a preliminary hearing the defense has the In a preliminary hearing the defense has the privilege of cross-examining witnesses for the privilege of cross-examining witnesses for the prosecution and can learn the details and strengths prosecution and can learn the details and strengths of the state’s case.of the state’s case.

The Grand JuryThe Grand Jury

IndictmentIndictment (true bill) – formal document (true bill) – formal document handed down by a grand jury accusing a handed down by a grand jury accusing a person of the commission of a crime. person of the commission of a crime. This is done in addition to or instead of a This is done in addition to or instead of a preliminary hearing.preliminary hearing.– Grand Jury is usually closed, unlike the Grand Jury is usually closed, unlike the

preliminary hearing.preliminary hearing.– Defendant is generally not represented by Defendant is generally not represented by

counsel or even present as the proceeding.counsel or even present as the proceeding.– Testimony is not always transcribed.Testimony is not always transcribed.


SubpoenaSubpoena – judicial order to appear – judicial order to appear at a certain place and time to give at a certain place and time to give testimony.testimony.

ImmunityImmunity – exemption from civil suit – exemption from civil suit or prosecution.or prosecution.– Transactional ImmunityTransactional Immunity – bars any – bars any

further prosecution of the witness for the further prosecution of the witness for the specific transaction to which he testified.specific transaction to which he testified.

– Use ImmunityUse Immunity – barring only the use of – barring only the use of the witness’s testimony against him in a the witness’s testimony against him in a subsequent prosecution.subsequent prosecution.


Rights of Witnesses and Rights of Witnesses and Suspects:Suspects:-The Supreme Court has held that -The Supreme Court has held that grand jury witnesses retain their grand jury witnesses retain their 55thth Amendment privileges against Amendment privileges against compulsory self-incrimination.compulsory self-incrimination.-Witnesses testifying before grand -Witnesses testifying before grand juries have no right to be juries have no right to be represented by counsel.represented by counsel.


Evidence Before the Grand Jury:Evidence Before the Grand Jury:

Many rules that apply to the criminal Many rules that apply to the criminal trial do not apply to the grand jury.trial do not apply to the grand jury.

Ex:Ex: Hearsay evidence is generally Hearsay evidence is generally admissible, whereas at trial, it is not admissible, whereas at trial, it is not admitted over the defendant’s admitted over the defendant’s objection. Evidence excluded from objection. Evidence excluded from trial on 4trial on 4thth or 5 or 5thth Amendment grounds Amendment grounds is admissible before the grand jury.is admissible before the grand jury.

ExtraditionExtradition ExtraditionExtradition – surrender, on demand, of – surrender, on demand, of

an individual accused or convicted of an an individual accused or convicted of an offense within the territorial jurisdiction offense within the territorial jurisdiction of the demanding government and of the demanding government and outside the territory of the ceding outside the territory of the ceding government.government.– Most states have adopted the Uniform Most states have adopted the Uniform

Criminal Extradition Law that sets out Criminal Extradition Law that sets out procedural rules for handling interstate procedural rules for handling interstate extradition. The governor of the demanding extradition. The governor of the demanding state issues a requisition warrant seeking state issues a requisition warrant seeking return of the fugitive.return of the fugitive.

Jurisdiction and VenueJurisdiction and Venue

JurisdictionJurisdiction – authority of the court to – authority of the court to hear and decide certain legal disputes.hear and decide certain legal disputes.

VenueVenue – place of the trial. – place of the trial. CapiasCapias – That you take. Court orders – That you take. Court orders

requiring that some named person be requiring that some named person be taken into custody.taken into custody.

Change of VenueChange of Venue – removal of legal – removal of legal proceeding to a new location.proceeding to a new location.

Joinder and SeveranceJoinder and Severance Joinder and SeveranceJoinder and Severance – uniting for trial – uniting for trial

in one case of different charges or counts in one case of different charges or counts alleged in an information or indictment.alleged in an information or indictment.– The Double Jeopardy Clause bars successive The Double Jeopardy Clause bars successive

prosecution for the same offense.prosecution for the same offense.– The basic test by the Supreme Court for The basic test by the Supreme Court for

determining whether there are two separate determining whether there are two separate offenses is whether each provision requires offenses is whether each provision requires proof of an additional fact that the other does proof of an additional fact that the other does not. A defendant cannot be convicted of an not. A defendant cannot be convicted of an offense and a lesser included offense.offense and a lesser included offense.

SeveranceSeverance

Severance of the ChargesSeverance of the Charges – – conducting multiple trials for conducting multiple trials for multiple charges. A judge often multiple charges. A judge often grants this on the motion of either grants this on the motion of either the defense or prosecution.the defense or prosecution.

Pretrial MotionsPretrial Motions Pretrial MotionPretrial Motion – written requests to the court – written requests to the court

on behalf of the government or the defendant.on behalf of the government or the defendant.– Common pretrial motions:Common pretrial motions:

Motion to dismissMotion to dismiss Motion to determine the competency of accused to stand Motion to determine the competency of accused to stand

trialtrial Motion to suppress evidenceMotion to suppress evidence Motion to suppress confessionsMotion to suppress confessions Motion to suppress a pretrial identification of accusedMotion to suppress a pretrial identification of accused Motion to require the prosecution to disclose identity of Motion to require the prosecution to disclose identity of

confidential informantconfidential informant Motion for change of venueMotion for change of venue Motion for a continuanceMotion for a continuance Motion to take depositionMotion to take deposition

ArraignmentArraignment

ArraignmentArraignment – accused’s first – accused’s first appearance before a court of law. Accused appearance before a court of law. Accused must enter a plea to the charges must enter a plea to the charges contained in the indictment or contained in the indictment or information.information.– A plea of guilty containing a protestation of A plea of guilty containing a protestation of

innocence, sometimes called an innocence, sometimes called an Alford PleaAlford Plea, , can be made when a defendant intelligently can be made when a defendant intelligently concludes that his interests require entry of a concludes that his interests require entry of a guilty plea.guilty plea.

– No Contest PleaNo Contest Plea, provides the accused the , provides the accused the advantage that it generally cannot be advantage that it generally cannot be construed as an admission of guilt in a related construed as an admission of guilt in a related civil suit.civil suit.

Plea BargainingPlea Bargaining

Plea BargainPlea Bargain – accused agrees – accused agrees to plead guilty in exchange for a to plead guilty in exchange for a reduction in the number of reduction in the number of severity of charges or a promise severity of charges or a promise by the prosecutor not to seek the by the prosecutor not to seek the maximum penalty allowed by law.maximum penalty allowed by law.

Availability of Availability of Compulsory ProcessCompulsory Process Compulsory ProcessCompulsory Process – to obtain – to obtain

witnesses in your favor. This witnesses in your favor. This right is secured through the use right is secured through the use of a subpoena.of a subpoena.

Pretrial DiscoveryPretrial Discovery

Exculpatory InformationExculpatory Information – – exonerates or tends to exonerate exonerates or tends to exonerate a person from fault or guilt.a person from fault or guilt.– A defendant is entitled to disclosure A defendant is entitled to disclosure

of information that might be used to of information that might be used to impeach government witnesses.impeach government witnesses.

The Right to a Speedy The Right to a Speedy TrialTrialThe Supreme Court refused to mandate a The Supreme Court refused to mandate a

specific time limit between the filing of specific time limit between the filing of charges and the commencement of charges and the commencement of trial, but adopted a balancing test to trial, but adopted a balancing test to determine whether a defendant was determine whether a defendant was denied the right to a speedy trial. denied the right to a speedy trial. Courts must consider:Courts must consider:

length of the delaylength of the delayreasons for delayreasons for delaydefendant’s assertion of the rightdefendant’s assertion of the rightprejudice to the defendantprejudice to the defendant

The Right to a Speedy The Right to a Speedy TrialTrialSpeedy Trial Act:Speedy Trial Act:An indictment must be filed within 30 days of An indictment must be filed within 30 days of

arrestarrestAn arraignment must be held within 10 days of An arraignment must be held within 10 days of

indictmentindictmentA trial must commence within 70 days after A trial must commence within 70 days after

indictmentindictment

Violations of the time limitations are remedied by Violations of the time limitations are remedied by dismissal of charges.dismissal of charges.

There are exceptions to time limits, especially There are exceptions to time limits, especially where delays are caused by defendants’ where delays are caused by defendants’ motions.motions.

Documents

Chapter 17 The Pretrial Process. The Right to Counsel The Gideon Decision In 1963, the Supreme Court decided that the 14 th Amendment requires states