1. Pre-trial proceedings

2. 1) First appearance - bail
Pre-trial, defendants usually remain free, in exchange for money or property which they post as security (= bail)
A judge decides whether to grant or deny bail.
Bail can be refused if D is
a flight risk (likely to flee)
likely to harm others
When a judge sets bail he should take into account D’s financial means.
After a suspect has been arrested, if there is enough evidence to continue he will go to court for his first appearance before a judge.
As we know, even when someone has been accused of an offense, he is still presumed to be innocent
That means that
Pre-trial, defendants usually remain free, in exchange for a money or property which they post (=give) as security/ which means as a guarantee that they will appear at trial
A judge decides whether to grant or deny bail.
Bail can be refused if D is
a flight risk (likely to flee, run away) or likely to harm others (eg member of the mafia)
The 8th amendment forbids excessive bail > this means that When a judge sets bail he should take into account D’s financial means.
For less serious crimes, a defendant can be released on their own recognizance > on their promise to appear at trial.
If a defendant does not have enough money to post bail, he can use a bail bondsman > pay the full bail in return for a 10% fee.
If the defendant cannot afford even the 10% fee > he will stay in jail
What happens to the bail money?
If someone appears at trial, the bail is returned to them
If someone fails to appear, they forfeit/ lose the bail

3. Examples
£500,000 bail for a defendant charged with a minor offence, who has few resources and has strong links with the local area (such as a job and family)?
Denial of bail for a member of the mafia accused of a felony, who has a history of intimidating witnesses and jurors?
$6 million for a wealthy foreign politician accused of a very serious offence?
$£500,000 bail for a defendant charged with a minor offence, who has few resources and has strong links with the local area (such as a job and family)?
> a defendant's bail cannot be set higher than an amount that is reasonably likely to ensure the defendant's presence at the trial.
It’s not clear whether the excessive bail clause if incorporated, so this ruling probably only binds federal courts
Total refusal of bail for an alleged member of the mafia? ALLOWED (United States v Salerno, 1987) – ail can be denied if the judge there is a high risk, based on evidence that the person will flee or harm others (this case)
DSK – in total had 6 million dollars bail – it wasn’t excessive - wealthy (sum that he found, even if it wasn’t easy to find), facing serious charges, judge felt there was a risk that he would escape – French citizen, arrested on plane, France had a history of not extraditing an offender

4. 2) Formal charge
The decision to formally charge a defendant can be taken by:
a judge at a preliminary hearing
a prosecutor (DA or SA), or
a grand jury
NOT a trial jury!
16-23 citizens who decide whether to indict the suspect
based on evidence presented by the prosecutor
often seen as “rubber stamping” prosecutor’s decision
used in federal courts and half of states – but the grand jury requirement (5th amendment) is not incorporated
Before a defendant is formally charged, there must be a decision made on whether there is enough evidence to justify a trial.
A trial can be very stressful for a defendant and damage his reputation. A safeguard is required to prevent abusive prosecutions. This means that police alone cannot take the decision to formally charge the D.
Depending on the state, the decision can be taken by
judge at a preliminary hearing > adversarial hearing where the prosecution and defence present their evidence and arguments
a prosecutor (a District Attorney or State Attorney) who will review the prosecution evidence. If he decides to charge the D it is called “issuing an information against D”
16-23 citizens who decide whether to indict the suspect (= issue an indictment)
based on evidence presented by the prosecutor
The defence has no right to present evidence, or even be present
Rules of evidence are different to at trial (inadmissible evidence and hearsay can be presented)
In theory they summon witnesses and subpoena documents in order to get a balanced view.
In practice tend to accept the prosecutors view.
often seen as “rubber stamping” prosecutor’s decision (confirming without any challenge)> one judge famously said that a good prosecutor could get a grand jury to indict a ham sandwich
Grand juries are used in federal courts and half of states – but the grand jury requirement (5th amendment) is not incorporated, so many states use a preliminary hearing instead

5. 3) Arraignment
Once he has been formally charged, the defendant must enter a plea.
He can plead:
not guilty
guilty
no trial
sentencing hearing
nolo contendere (no contest)
Once he has been formally charged, the defendant must enter a plea.
He can plead:
Not guilty > What happens – there is a trial – prosecution must prove guilt beyond a reasonable doubt
Guilty> NO TRIAL, no independent evaluation of the evidence, no need to prove guilty beyond a reasonable doubt. if he pleads guilty that is accepted by the court
> there will be a sentencing hearing, where the judge will hand down a sentence
There is also a third plea possible: nolo contendere (no contest)
Here the defendant is sentenced as if he had pleaded guilty BUT he has not admitted the crime.The conviction cannot be used against him in a civil trial where the victim is seeking damages.

6. 4) Plea bargaining 97% of cases end in a guilty plea
Plea bargaining: a deal whereby a defendant pleads guilty in return for:
a charge being reduced
some charges being dropped / dismissed
the prosecution agreeing to request a lower sentence…
…or that the sentences for different offences run concurrently rather than consecutively
All plea deals must be approved by a judge
In class this semester we spend a lot of time on the constitutional protections given to suspects and defendnats.
But the fact is that those protections are less and less relevant to the US justice system.
Because, today, 97% of cases end in a guilty plea
Many of those guilty please result from a plea bargain: which is? a deal whereby a defendant pleads guilty in return for:
a charge being reduced
some charges being dropped
the prosecution agreeing to request a lower sentence
… …or that the sentences for different offences run concurrently rather than consecutively whats the difference?
DA or SA has power to do all this – decides charges and what sentence to recommend
All plea deals must be approved by a judge > evaluate whether the sentence is appropriate
Can accept or reject the agreement
In some states can accept the plea but change the sentence
Due to the centrality of plea bargaining in the uS system, in 2012 the USSC held that the right to effective assistance of counsel (6th amendmentà exists during plea bargaining.