CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Pretrial Activities and the Criminal Trial CHAPTER 10

2009 Pearson Education, Inc 2 Pretrial Activities

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Pretrial Activities Several activities take place before a trial can begin:  First appearance  Pretrial release and bail  The grand jury  The preliminary hearing  Arraignment and plea  (Video)

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ First Appearance At their first appearance, defendants are brought before a judge and:  Formally notified of the charges  Advised of their rights  Given the opportunity to retain a lawyer or have one appointed to represent them  May be afforded the opportunity for bail

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ First Appearance …must be held “without unnecessary delay”. Based on McNabb v. U.S. (1943), the standard is 48 hours. …may include a probable cause hearing, if arrests were made without a warrant. …some states waive the first appearance for arrests made based on arrest warrants.

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ  Most defendants are given the opportunity for pretrial release.  Pretrial release decisions consider risk of flight or nonappearance in court and risk to public safety. Decisions focus on:  Seriousness of pending charges  Prior record  Information about the defendant  Available supervisory options if released Pretrial Release

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ  The most common pretrial release mechanism is bail, the posting of a bond as a pledge that the accused will return for court proceedings.  Bail serves two purposes: 1. helps ensure reappearance of the accused in court. 2. prevents unconvicted persons from suffering imprisonment unnecessarily. Pretrial Release

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Alternatives to Bail Personal Recognizance (PR) Defendant provides written promise to appear in court. No cash or property bond required. Property BondBail set in the form of tangible property, to become property of the court if the defendant absconds. Deposit BailThe court acts as bond agent. Defendant posts percentage of full amount, including an administrative fee. Entire amount forfeited if absconds. Conditional ReleaseDefendant must abide by a set of imposed requirements. Third-Party Custody (Bail Bondsman) Defendant assigned to an individual or agency that promises to ensure future court appearances. Unsecured BondCourt determines bail amount, but allows defendant to be released on “credit.” Entire amount forfeited if absconds. Signature BondWritten promise to appear. Used in minor offenses by arresting officer without assessment of dangerousness/likelihood of appearance.

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Used by the federal government and about half of the states, grand juries:  are made of private citizens (WV-16).  hear evidence only from prosecutors.  are held in secret, and generally the defendant is not there.  serve as filters to eliminate cases without sufficient evidence.  move a case forward if the majority of grand jurors agree on an indictment (True Bill). Grand Juries

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ States that do not use grand juries rely on preliminary hearings:  They give the defendant an opportunity to challenge the legal basis of his detention.  A lower court judge summarizes the charges and reviews the rights of criminal defendants.  Competency to stand trial may be determined.  They have many of the same characteristics as a trial. Preliminary Hearing

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ  Arraignment is the first appearance before the court with authority to try the case.  Two purposes: Inform suspect of specific charges Allow defendant to enter a plea  Types of pleas: Guilty Not guilty Nolo contendere Arraignment

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Plea Bargaining …the process of negotiating an agreement among the defendant, the prosecutor, and the court as to an appropriate plea and associated sentence in a given case. Plea bargaining circumvents the trial process and dramatically reduces the time required for the resolution of a criminal case. (Video)

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Plea Bargaining  Negotiated pleas are guilty pleas and result in conviction.  Some surveys have found that 90% of all criminal cases prepared for trial are eventually resolved through a negotiated plea.  After a guilty plea has been entered, it may be withdrawn with the consent of the court.

2009 Pearson Education, Inc 14 The Criminal Trial

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ The Nature and Purpose of the Criminal Trial:  The trial process is highly formalized and governed by rules of evidence and other procedural guidelines, as well as informal rules and professional expectations.  The purpose is to determine the defendant’s guilt or innocence.

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Factual vs. Legal Guilt Factual guilt The defendant is actually responsible for the crime of which he is accused. Legal guilt The defendant is found guilty as charged.

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ The philosophy of the adversarial system is that the most just outcomes will occur when both sides are allowed to argue their cases effectively and vociferously before a fair and impartial jury. Adversarial System

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Stages in a Criminal Trial

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Trial Initiation and the Speedy Trial The Sixth Amendment guarantees that in “all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ  The Sixth Amendment guarantees the right to an impartial jury.  Jurors are expected to be unbiased and free of preconceived notions about guilt or innocence.  Prosecution and defense attorneys question potential jurors during the process of voir dire. Jury Selection

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Jury Selection: Ensuring Impartiality  Challenge to the array  Challenge for cause  Peremptory challenge Both the prosecution and defense can use challenges to remove prospective jurors from jury pool.

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Challenge to the Array A challenge to the array c laims that the pool from which potential jurors are to be selected is not representative of the community.  It is argued in a motion before voir dire.

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Challenge for Cause A challenge for cause claims that a prospective juror cannot be impartial or fair.  Typically, each side has an unlimited number of such challenges.

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Peremptory Challenge Peremptory challenges remove potential jurors without the need to give a reason.  Typically, each side has a limited number of such challenges.  Federal government and states vary in the number of such challenges allowed.

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Sequestered Jury Judges decide whether or not a jury should be sequestered—isolated from the public during the course of a trial and throughout the deliberation process.

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Jury Selection and Race Race alone cannot provide the basis for jury selection, and juries may not be intentionally selected for racial balance. Batson v. Kentucky (1986)—the use of peremptory challenges for purposeful discrimination constitutes a violation of the defendant’s right to an impartial jury.

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ The presentation of information to the jury begins with opening statements—the initial statements of the attorneys, describing the facts that he or she intends to present during trial to prove the case. Opening Statements

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ  Evidence—anything useful to a judge or jury in deciding the facts of a case.  First, prosecution presents its evidence. The defense follows. The Presentation of Evidence

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Types of Evidence Direct evidence Facts that need not be interpreted (photographs, testimony) Circumstantial evidence Requires judge or jury to make inferences or draw conclusions Real evidencePhysical material or traces of activity, introduced by means of “exhibits”

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Judges decide which evidence can be presented to the jury.  Evidence must be relevant.  The probative value must be weighed against the potential inflammatory or prejudicial qualities of the evidence. The Evaluation of Evidence

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Testimony—oral evidence presented by witnesses, including victims, police officers, the defendant, and specialists.  Witnesses must be competent to testify.  The defendant has the 5 th Amendment right not to take the stand.  Witnesses are subject to direct and cross examination.  Witnesses who lie under oath commit perjury. The Testimony of Witnesses

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ states allow the use of videotaped testimony. 32 states allow the use of closed circuit television. Child Witnesses

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ  Hearsay is anything that is not based on the personal knowledge of a witness.  The hearsay rule prohibits the use of “secondhand evidence” The Hearsay Rule

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Exceptions to the hearsay rule include:  Dying declarations  Spontaneous statements  Certain out-of-court statements  Example: 911 tapes may be allowed, unless the person is alive and in good health and can take the stand for questioning and cross- examination. Exceptions to the Hearsay Rule

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ At the conclusion of the trial, both sides provide the jury with closing arguments—a narrative summation of a case presented to a judge or jury. Closing Arguments

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ  After closing arguments, the judge charges the jury to:  Select a foreperson  Deliberate  Return with a verdict  Judge may remind juries of statutory laws and requirement of impartiality. Judge’s Charge to the Jury

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ  Deliberations may take minutes; some take weeks.  Many jurisdictions require a unanimous verdict.  Some juries are unable to reach a verdict. These deadlock juries are called hung juries. Jury Deliberations and the Verdict

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ  Many jurors are ignorant of the law and legal precedent.  Some jurors personal opinions, biases, and emotions interfere with objectivity.  Some jurors fear personal retaliation. Problems with the Jury System

CRIMINAL JUSTICE TODAY, 10E© 2009 Pearson Education, Inc by Dr. Frank Schmalleger Pearson Prentice Hall Upper Saddle River, NJ Some critics of the jury system call for professional juries. A professional jury system offers these advantages:  Dependability  Knowledge  Equity Professional Jurors