Chapter 9Pretrial 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