Pretrial and Trial Procedures

Chapter 10

Arrest and Bail

Procedures Following Arrest

Many important decisions about what happens to a defendant are made prior to trial Hearings, such as before the grand jury and the

preliminary hearing, are held to determine if probable cause exists to charge the accused with a crime If so, the defendant is

arraigned, enters a plea, is informed of his or herconstitutional rights, and is considered for pretrial diversion

Bail Bail

A form of security, usually a sum of money that is put up or exchanged to secure the release of an arrested person before the trial begins Majority of criminal defendants are released

on bail prior to trial

The Eighth Amendment Prohibits both cruel and unusual

punishment and excessive bail

Bail Types of Bail

Full cash bail Deposit bail (used in Illinois, post 10%) Surety bail (bail bondsman – 3rd party) Conditional bail (release with rules / no cash) Unsecured bond (not common) Release on recognizance (called: I-Bond –

used everyday in Cook County Illinois)

Technically if you fail to appear, the court takes your bail… but this rarely happens…

Bail Pretrial detainees

People who are either denied bail or cannot afford to post bail before trial and are kept in secure confinement

Explain Skokie Court Procedure… According to text…

More likely to be convicted and get longer sentences than those who commit similar crimes but are released on bail Stats may be skewed because the more

serious the crime… the more sure you did it… the more likely you will be convicted…..

Bail Bail has been heavily criticized as one of

the most unacceptable aspects of the criminal justice system Bail reform

Has resulted in the use of release on recognizance to replace money bail for non-dangerous offenders

Also efforts to tighten bail on

the most dangerous offenders

Released Felony Defendants Committing Misconduct, by Most Serious Arrest Charge

Percentage of People Out on Bail Who Are Re-arrested for a Felony, by Charge and Arrest Type

Pretrial and Charges

Pretrial Services Programs that provide a number of

services to those released into the community prior to their trial dates Determine which defendants can safely be

released on bail pending trial Gather and verify information about arrestees Assess likelihood of failure to appear/arrest Provide supervision for defendants Special needs

Charging the Defendant

The Grand Jury Presentment – (Used by special grand juries

like the one in Ferguson) True Bill

Grand Jury saying YES - indict Indictment

The formal charge the grand jury decides No Bill

Very rare, but this is when the Grand Jury says no.

Charging the Defendant The Preliminary Hearing

(if we don’t use the grand jury)

Presided over and decided by a Judge Prosecution presents Evidence Defense can Cross-examination

Waiving the preliminary hearing Sometimes a lawyer will waive if the

charge is disturbing… or if there is no question as to guilt…..

Video: Pleas

Charging the Defendant At arraignment the defendant is informed

of the charges against him/her and appoints counsel if one has not yet been retained A plea is entered at arraignment:

Guilty Not guilty Nolo contendere (rare – not accepted in all areas)

Plea Bargaining

Plea BargainingMost cases never go to trial but are

bargained out of the system Bargains can be made for a plea of guilty in

exchange for: A reduced sentence Dropping charges Lowering charges Substituting a negative charge for one with more

socially acceptable connotations

Plea BargainingPros of Plea Bargaining

The overall costs of the criminal prosecution are reduced

The administrative efficiency of the courts is greatly improved

The prosecution can devote more time to more serious cases

The defendant avoids possible detention and an extended trial and may receive a reduced sentence

Resources can be devoted more efficiently to cases that need greater attention

Plea BargainingCons of Plea Bargaining

Defendants waive constitutional right to trial Allow dangerous offenders to receive lenient

sentences Danger that an innocent person will be

convicted of a crime Prosecutors are given a free hand Possible that innocent persons will admit guilt

Plea Bargaining The Problem of False Confessions

Why do innocent people confess? Duress Coercion Intoxication Diminished capacity Mental impairment Ignorance of the law Fear of violence The actual infliction of harm The threat of a harsh sentence Misunderstanding the situation

Plea Bargaining Legal Issues in Plea Bargaining

Effective assistance of counsel Pleas must be made voluntarily Prosecutor promises must be kept Defendant promises must be kept Due process rights must not be violated Guilty pleas from persons who claim innocence is

valid Use of plea bargaining statements at trial

Plea BargainingFew states have placed limits on the

discretion of prosecutors in plea bargaining situations A court will not accept a guilty plea unless:

The defendant has been properly advised by counsel

AND The court has determined that the plea is

voluntary and has a factual basis

Plea BargainingThe role of the defense counsel in plea

bargaining Advisory Explanatory Informative

Know the facts of the case and the law and and advise your client of the available alternatives

Plea Bargaining Although plea bargaining has been criticized,

efforts to control it have not met with much success

Jurisdictional safeguards Judge questions defendant

Cook County – Is this plea of your own free will? - was anything promised in exchange for our plea? - are you being forced to plea?...

Defense counsel is present Open discussion of plea

Cook County - Defendant states plea out loud

Full and frank information about defendant Cook County - Defendant signs a jury waiver

Pretrial&

Trial

Pretrial Diversion Diversion programs

Offering a criminal defendant the ability to enter a treatment program instead of a criminal trial continue to be used throughout the United States

Most diversion programs have a common goal To constructively bypass criminal prosecution by

providing a reasonable alternative in the form of treatment, counseling, or employment programs

Cook County States Attorney Drug School Available to first time misdemeanor drug offenders

The TrialAn open and public hearing designed to

examine the facts of the case brought by the state against the accused Most formal trials are heard by a jury, although

some defendants request a bench trial. (I believe this is FALSE)

Not open to witnesses such as police.

Counsel Speedy trialPublic trialConvicted by

proof beyond a reasonable doubt

Impartial judgeRight to be competentConfront witnesses Compulsory process Impartial jury

Legal Rights During Trial

Jury SelectionVoir dire

The process in which a potential jury panel is questioned to select jurors

Peremptory challenge The dismissal of a prospective juror by

either the prosecution or the defense for unexplained, discretionary reasons

Jury SelectionChallenge for cause

The dismissal of a prospective juror by either the prosecution or the defense because she/he is biased, has prior knowledge, or for another reason is unable to render a fair and impartial judgment

The Trial ProcessAn established order of steps is

followed throughout a criminal trial: Selection of a jury Opening statements Introduction of evidence (prosecution and

defense) Closing arguments Instructions to the jury Juror deliberations Verdict

The TrialJury nullification

A jury’s refusal to render a verdict according to the law and fact regardless of the evidence presented

Imposition of the sentence is the responsibility of the trial judge The defense may petition an appellate

court to review the procedures used during the trial once a verdict has been rendered