STREET LAW

UNIT 2: Criminal Law and Juvenile Justice

Chapter 13

Criminal Justice Process: Proceedings Before Trial

After the arrest of a criminal suspect, but before the criminal case reaches the courtroom, several preliminary proceedings take place

Most of these proceedings are standard for every case

Depending on the specific circumstances & the result of these preliminary proceedings, the charges may be dropped or the defendant may plead guilty

If either of these two things occurs, there will be no trial

Proceedings Before Trial

An important pretrial issue is the precise point at which the defendant is entitled to representation by counselShould the defendant have an attorney brought to

the place of his or her arrest?The Court has held that the accused is entitled to

counsel at any “critical stage of the prosecution,” such as the preliminary hearing or arraignment

Defendants are entitled to an attorney at a post-indictment lineup, but not a pre-indictment lineup, or when a handwriting sample is taken

In practice, poor defendants often have an attorney appointed for them at the bail hearing or initial appearance

Booking and Initial Appearance   After an arrest, the accused is normally

taken to a police station for booking Booking is the formal process of making a

police record of the arrest The accused person first provides some

basic information for identification purposes & then is fingerprinted & photographed

Some interesting court cases about pretrial issues have dealt with taking fingernail clippings, handwriting specimens, and blood samples from defendants

The cases raise the question of whether or not such actions violate a defendant’s right to be free from self-incrimination & from unreasonable searches & seizures

The U.S. Supreme Court has held that these procedures do not violate the self-incrimination clause of the 5th Amendment because they do not extract evidence of a testimonial or communicative nature

However, the Court found pumping a defendant’s stomach against his will in order to recover drugs swallowed during a police raid to be “shocking to the conscience” & unreasonable

Within a short time of arrest & booking, the accused must appear before a judgeAt this initial appearance, the judge explains the

defendant’s rights & advises him/her of the exact nature of the charges

The defendant has an attorney appointed or is given the chance to obtain one

At this stage, the judge decides if the defendant will be released on bail or remain in jail while awaiting trial

MisdemeanorAsked to enter a plea of guilty or not guilty

FelonyInformed of the chargesAdvised of rightsDoes not enter a plea until later (felony arraignment)May be entitled to a preliminary hearing to determine

if there is probable cause to believe that a crime was committed & that the defendant committed it

The most important of the initial appearance is deciding whether the defendant will be released from custody & if so under what conditions

Bail & Pretrial Release

Bail is an amount of money that an arrested person puts up in order to be released from jail while waiting for trial

The purpose of bail is to assure the court that the defendant will return for trial

If the person fails to return for trial, the court keeps the money

A constitutional right to bail is recognized in all but the most serious cases—such as murder

The 8th Amendment right to bail is based on the notion that a person is presumed innocent until proven guilty & that “excessive bail shall not be required”Because poor people have greater difficulty raising bail

money than others, they are more likely to remain in jail during the pretrial period (before trial or conviction)

This makes it more difficult for them to prepare for trial, & they sometimes must wear prison clothes in court

Wealthy defendants, including some drug dealers, are more likely to have bail funds

Are the poor treated unfairly by the bail system?How might wearing prison clothes in court affect

the outcome of a trial?How else might the system try to ensure that

defendants show up for their trials?

To be eligible for release on personal recognizance, or personal bond, the defendant must promise to return & must be considered a low riskIn determining the likelihood of the defendant’s return,

judges consider factors such as○ the nature & circumstances of the offense○ the accused’s family & community ties○ financial resources○ employment background○ & prior criminal record

Courts may set a variety of nonmonetary conditions designed to ensure the return of the defendantPlacing the defendant in the custody of a 3rd partyRequiring the defendant to maintain or get a jobTo reside at a certain addressTo report his/her whereabouts on a regular basis

Releasing people who have been arrested for serious crimes before their trials may cause problems—even though they have not yet been found guilty of a crimeA large # of defendants commit crimes while out

on bail

Under a federal criminal law passed in 1984—the Bail Reform Act—persons charged with federal crimes may be held without bail if they are found to be “dangerous to the community”

There must be a hearing; the person being denied bail must have been charged with a violent crime or a drug offense; the person must have been convicted of a felony more than onceThe law presumes dangerous a person arrested for a drug

offense that carries a possible sentence of more than ten yearsSomeone who previously committed a violent crime while

released pending trial is also presumed dangerous

Supporters of pretrial release sayIt prevents punishment prior to convictionGives defendants the freedom to help prepare

their casesThe U.S. justice system rests on the presumption

that defendants are innocent until proven guilty—setting high bail or holding a person in jail before trial goes against that presumption

Defense lawyers in a 1987 U.S. Supreme Court case challenged the constitutionality of the Bail Reform ActThey charged that holding people without bail

before their trial amounted to punishment before any finding of guilt

The Court rejected this argument, and the law remains in effect in federal courts today

More than 20 states allow this type of “preventive detention” for defendants considered to be a threat to the community

Many judges are criticized for imposing de facto preventive detention by setting high bail for indigent defendants

A challenging bail problem involves people mistaking the nature of bail

In several cases, people—such as immigrants who may not have understood the language or the culture—have paid bail, believing it to be payment of the fine (or the required bribe to the judge) & then have been confounded when arrested for failure to appear at trial

Information   A defendant will proceed to trial for a misdemeanor

based on a prosecutor’s informationThe information details the nature & the circumstances of the

charges brought against a defendantIt is a formal criminal charge filed with the court by the

prosecutor without the aid of a preliminary hearing or a grand jury

It is based on the information collected during the initial investigation of the case that suggests that the defendant in custody committed the crime

Many people confuse the terms information, preliminary hearing, and grand jury [chart]

Preliminary Hearing   A preliminary hearing is a screening process used in

felony cases to decide if there is enough evidence to make the defendant stand trial

The prosecutor is required to establish that a crime probably has been committed & the defendant did it

If enough evidence supports the prosecutor's case, the defendant will proceed to trial

If the judge finds no probable cause, the case may be dismissed—but this does not necessarily mean that the case is over—the prosecution may still submit the case to a grand jury for further review of the charges

The Grand Jury System   A grand jury is used by many states in place of

the prosecutor's information or a preliminary hearingIt is a group of 16 to 23 people who determine

whether there is enough evidence to show that a person has committed a crime & should go to trial

The 5th Amendment requires that before anyone can be tried for a serious crime in federal court, there must be a grand jury indictment

Only about 20 states regularly use grand juries instead of a preliminary hearing to determine the probability that a particular defendant committed the alleged crime

Some states utilize both procedures

The prosecution controls the presentation of witnesses & evidence

Only the prosecutor submits evidence to the grand jury A judge is not present & rules of evidence do not apply The defense attorney is not allowed in the grand jury

room, but can wait outside During proceedings, the defendant can leave the room to

obtain advice from his or her attorney Grand juries sometimes choose not to indict because

there is not enough evidence to support the charges

As with preliminary hearings, many criticize the grand jury systemSome feel that grand juries are rubber stamps for

prosecutors Proponents of grand jury reform feel that the

media often shape grand juries’ opinions & cause them to indict despite lack of evidence

Proponents of the grand jury system see a legitimate refusal to indict as citizens protecting their peers from oppressive government action

Grand juries may serve a particularly useful role in political corruption cases, where the prosecution (from one political party) may be viewed as “out to get” a politician (from another party)

In these cases, the grand jury may refuse to indict the potential victim-politician

In 1998, the U.S. Supreme Court ruled on discrimination in the makeup of the grand juryIn that case, a white defendant had been indicted

by a grand jury for the murder of another white person

The defendant proved that no African American had served as a grand jury foreperson in that judicial district for the last 17 years, suggesting that the grand jury process was unfair

In this case the Court extended protection against racial discrimination in the composition of petit juries to include grand juries as an element of due process & receiving a fair trial

Felony Arraignment & Pleas  

After an indictment or information is issued, the defendant must appear in court to enter a plea

If the defendant pleads guilty, the judge will set a date for sentencing

If the defendant pleads not guilty, the judge will set a date for trial & ask whether the defendant would like a trial by jury or a trial before a judge alone (a “bench trial”)

When a defendant first appears in court, he or she almost always pleads not guiltyThis occurs even when the defendant will later agree to

plead guilty The not guilty plea, however, gives the defense

attorney time to make sure that any guilty plea is based on an informed choice & may make it possible for the defendant to plea-bargain with the prosecutorPlea bargaining often allows the defense attorney to

work out the best deal possible for the defendant

Nolo Contendere is a plea in which the defendant does not admit guilt but also does not contest the charges

It is equivalent to pleading guilty The only advantage of this plea to the

defendant is that it can’t be used as evidence later in a civil trial for damages based on the same set of facts

Pretrial Motions: The Exclusionary Rule   A motion is a formal request that the court

make a ruling or take some other action An important preliminary proceeding is the

pretrial motion Prior to trial, a defendant may file motions

seeking to have the case dismissed or to obtain some advantage or assistance in preparing the case

Common motions include:Motion for discovery of evidence: a defendant's

motion to obtain certain evidence from the prosecution before trial

Motion for a continuance: a request for more time to prepare the case

Motion for change of venue: a request for the trial to be held in a different location

Motion to suppress evidence: a motion that certain evidence should be excluded at the trial

The 4th Amendment protects citizens against “unreasonable searches & seizures” by the gov.The U.S. Supreme Court interpreted the

amendment as requiring an exclusionary rule○ This rule states that any evidence illegally seized by

police can’t be used to convict the accused at trial○ It also applies to evidence obtained from illegal

questioning of the accused○ This leads to the motion to suppress evidence by the

defense

The exclusionary rule has been used in federal courts since 1914

The U.S. Supreme Court held in Mapp v. Ohio (1960) that the exclusionary rule was applicable to the statesThus, illegally seized evidence is not allowed at

state trialsMs. Mapp was convicted of “knowingly having had

in her possession & under her control certain lewd & lascivious books, pictures, & photographs . . . “

The police “unlawfully seized these items during an unlawful search” of Ms. Mapp’s home following a forced entry into her home

Additionally, the existence of a search warrant for Ms. Mapp’s home was in question

The exclusionary rule does not prevent the arrest or trial of a suspect

In some cases it does mean that people who committed a crime might go free

When an important piece of evidence is excluded from the trial, the prosecutor may not have enough other evidence to obtain a conviction

In 1988, the U.S. Supreme Court held that evidence initially discovered during an unlawful, warrantless search may be used in court if the same evidence is rediscovered by a subsequent lawful searchThis was another step toward limiting, while not

revoking, the impact of the exclusionary rule on criminal prosecutions

In 1989, the Court reaffirmed the breadth of the exclusionary ruleUnder certain circumstances, an exception to the

rule allows prosecutors to introduce illegally obtained evidence for the limited purpose of impeaching (calling into question) the defendant’s credibility

The Illinois Supreme Court wanted to expand the exception to include defense witnesses5 members of the U.S. Supreme Court rejected Illinois’s

expansionJustice Brennan, writing for the U.S. Supreme Court,

stated that an expanded impeachment exception would deter defendants from calling witnesses who may otherwise offer important evidence

This case seems to indicate that the U.S. Supreme Court was not interested in significantly curtailing or overruling the exclusionary rule

The exclusionary rule applies not only to illegally obtained evidence from searches (4th Amendment) but also to confessions obtained in violation of the Miranda rules (5th & 6th Amendments)

Judicial integrity is the idea that courts should not be parties to lawbreaking by the police

Deterrence means that police will be less likely to violate a citizen’s rights if they know that illegally seized evidence will be thrown out of court

As a practical matter, police are sometimes more concerned with arrests than with convictionsThey may make arrests primarily to seize

contraband, gather information, or disrupt criminal activity—regardless of whether a suspect can be convicted of a crime

Sometimes mistakes can be made

Plea Bargaining  

The plea bargaining process is often used to obtain guilty pleas before the trial begins

Most criminal cases never go to trial because most defendants plead guilty beforehand

In a plea bargain, the accused often will agree to plead guilty in exchange for a somewhat reduced sentenceThey can often times plead guilty to a less serious

charge or to get a lighter sentence

Plea bargaining is sometimes involved in pretrial diversion efforts whereby defendants can avoid prosecution by enrolling in certain special programsFor example, for first offenders, alcoholics,

narcotics addicts, unemployed persons, etc.

Youth courts are alternative sentencing options in which young people who admit their involvement with an illegal activity are “sentenced” by a jury of their peers instead of facing a juvenile court judge in an official court proceedingwww.youthcourt.net

Immigrants, Non-Citizens, and Plea Bargains

People who are not U.S. citizens who plead guilty to crimes in state court generally are unaware of the immigration consequences of this plea

Possible consequences include loss of lawful status, mandatory deportation, or permanent inadmissibility

During the 1990s, Congress rewrote immigration laws a number of times

Notably, Congress enacted two major pieces of legislation in 1996 to expand both the kinds of criminal behavior that trigger immigration penalties & the severity of those penalties—the Illegal Immigration Reform & Immigrant Responsibility Act of 1996

Supporters Allows the government to avoid the time &

expense of trials Increase in # of cases coming to trial The defendant gets a lighter sentence

Critics Allows dangerous criminals to get off with light

sentences The gov. should be forced to prove guilt beyond a

reasonable doubt at trial A prosecutor with a weak case can use the plea

bargaining system to unfairly influence a defendant to accept a lower charge in lieu of risking a longer sentence as the result of a guilty conviction at trial

Victims of crimes say that their rights are completely overlooked in the plea bargaining process