Chapter 9 Pretrial Procedures

Pretrial Services Pretrial procedures are important because majority of criminal cases are resolved informally Charges can be dropped or dismissed Plea bargain can be made Competency hearings

Bail Bail: money or some other security provided to the court to ensure the appearance of the defendant at every stage in the criminal justice process. Purpose: obtain release from custody If defendant fails to appear, bail is forfeited and person is confined in jail until court appearance

Bail (cont.) Current data indicate about 2/3rds of those arrested made bail 1/3rd are held in custody 7% denied bail Murder defendants least likely to get bail 1/3 of those released were rearrested

Bail (cont.) Purpose is to ensure appearance at trial, not punish Cannot be arbitrarily denied or revoked Critics argue 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

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 8th 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 persons’ ability to pay under similar circumstances. Those unable to post bail 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 Bail Reform Act of 1966 First 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 be 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. 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. Jails considered the weakest link in the criminal justice process.

Pretrial Detention (cont.) Effects of Detention 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 accused or public allowed to attend A rubber stamp for the prosecutor Prosecutor need not reveal evidence that might exonerate the accused

Charging the Defendant (cont.) Preliminary Hearing Used 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 Guilty: defendant admits criminality

Plea-Bargaining Most common practice in the criminal justice system 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

Plea-Bargaining (cont.) 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 Encourages defendants to waive their constitutional right to a trial Dangerous offenders may receive lenient sentences Innocent people may plead guilty if they believe the sentence is biased and they have little chance of acquittal or to avoid the possibility of harsh punishments Prosecutors may induce or compel defendants to plead guilty A “guilty plea culture” develops among defense attorneys.

Plea-Bargaining (cont.) Legal Issues Defendants are entitle 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 threaten to indict defendants on more serious charges if they do not plead guilty Statements made during negotiations may be used against defendant

Plea-Bargaining (cont.) Factors Affecting the Prosecutor’s Decision Nature of the offense Defendant’s prior record and age The type, strength and admissibility of evidence in the case Attitude of the victim Intangible factors

Plea-Bargaining (cont.) Defense Attorney’s Role Advisory role Ensure the defendant understands the nature of the plea bargaining process and the guilty plea Make sure defendant understands the alternatives available to them Must communicate all plea-bargain offers to client

Plea Bargaining (cont.) Judicial participation in plea negotiations 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 the theory behind the use of presentence investigation reports May induce an innocent defendant to plead guilty because 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

Plea-Bargaining (cont.) Suggestions for Reform Oversight of negotiations Guidelines to identify suitable types of cases and offenders Review of prosecutor’s decisions Written documentation of need and acceptability for a plea bargain in any given case

Pretrial Diversion Designed to remove case from 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