Pretrial Procedures: The Adversary System in Action

Pretrial Procedures: The Adversary System in Action

© 2002 Wadsworth Publishing Co.

Chapter 9Introduction to Criminal Justice 2003:

A Microsoft® PowerPoint® Tool

Slides prepared by:Larry Bassi

SUNY Brockport

Chapter 9Introduction to Criminal Justice 2003:

A Microsoft® PowerPoint® Tool

Slides prepared by:Larry Bassi

SUNY Brockport

Abstract Goals of the CourtsAbstract Goals of the Courts• Provide for an open and impartial forum for

seeking the truth• Provide for a fair and equitable hearing using

regulated rules• Insure that the process takes place in an

atmosphere of legal competence and objectivity

• Provide a clear legal outcome

• Provide for an open and impartial forum for seeking the truth

• Provide for a fair and equitable hearing using regulated rules

• Insure that the process takes place in an atmosphere of legal competence and objectivity

• Provide a clear legal outcome

Models of the CourtsModels of the Courts

• Setting for an adversarial process

• Defendant against the state• Fair & formalized process• Criminal procedure and rules

of evidence

• Setting for an adversarial process

• Defendant against the state• Fair & formalized process• Criminal procedure and rules

of evidence

• Encourages settlement in the quickest and simplest way

• Emphasizes punishment and retribution

• Encourages settlement in the quickest and simplest way

• Emphasizes punishment and retribution

Due Process Crime ControlDue Process Crime Control

The Dual Court SystemThe Dual Court System

State Court Systems

State courts try casesthat are against the lawsof that particular state.

Considerable variation existsin state system, but much

similarity can also be found.

State Court Systems

State courts try casesthat are against the lawsof that particular state.

Considerable variation existsin state system, but much

similarity can also be found.

Federal Court System

Federal courts try casesthat are against the laws

of the United States.

Federal Court System

Federal courts try casesthat are against the laws

of the United States.

The Dual Court SystemThe Dual Court System

• Highest court in the land; court of last resort• Decisions become precedents (landmark decisions)• May choose to hear/not hear most cases• Uses writ of certiorari to get case records

Federal Court StructureFederal Court Structure

U.S.Supreme

Court

Duties of the JudiciaryDuties of the Judiciary

• Oversees conduct in the court• Settles questions of evidence and procedure• Guides questioning of witnesses• Instructs the jury about law• Decides case when a jury is not used

(bench trial)• Decides on sentence

• Oversees conduct in the court• Settles questions of evidence and procedure• Guides questioning of witnesses• Instructs the jury about law• Decides case when a jury is not used

(bench trial)• Decides on sentence

The Role of the

Judge in the Criminal Trial Process

The Role of the

Judge in the Criminal Trial Process

What Titles Do Prosecuting Attorneys Have?What Titles Do Prosecuting Attorneys Have?

DistrictAttorneyDistrict

Attorney

CountyAttorneyCounty

Attorney

U.S.Attorney

U.S.Attorney

State’sAttorneyState’s

Attorney

What Are the Prosecutor’s Duties?What Are the Prosecutor’s Duties?

• Represent the people in the adversary process

• Enforce the criminal law• Seek justice• Convict the guilty• Participate in legal reforms• Public spokesperson for the field of law

• Represent the people in the adversary process

• Enforce the criminal law• Seek justice• Convict the guilty• Participate in legal reforms• Public spokesperson for the field of law

Prosecutorial Options:Discretionary DecisionsProsecutorial Options:

Discretionary Decisions

Decide whether or not to charge an individual with a crime

Determine the level of charge(s) to be brought against a suspect

Decide if, or when, to stop a prosecution

Decide whether or not to charge an individual with a crime

Determine the level of charge(s) to be brought against a suspect

Decide if, or when, to stop a prosecution

One of the most critical decisions a prosecutor makes, is who to prosecute.

A prosecutor can:

One of the most critical decisions a prosecutor makes, is who to prosecute.

A prosecutor can:

Factors That InfluenceProsecutorial Decision Making

Factors That InfluenceProsecutorial Decision Making

• Clogging the system• Wasting time on minor

cases when major cases need attention

• Wasting time on a case because it cannot be won

• Clogging the system• Wasting time on minor

cases when major cases need attention

• Wasting time on a case because it cannot be won

• Attitude of the victim• Cost of prosecution• Undue harm to suspect

or victim• Alternative sanctions

available and appropriate

• Attitude of the victim• Cost of prosecution• Undue harm to suspect

or victim• Alternative sanctions

available and appropriate

System Factors Case FactorsSystem Factors Case Factors

Politics and ProsecutorsPolitics and Prosecutors

• The prosecutor is either elected or appointed.

• The prosecutor is among the leaders of his or her party, and has allegiances to it and a local constituency that may affect decision making.

• The office of local prosecutor is often seen as a political stepping stone.

• The prosecutor is either elected or appointed.

• The prosecutor is among the leaders of his or her party, and has allegiances to it and a local constituency that may affect decision making.

• The office of local prosecutor is often seen as a political stepping stone.

What Should a Defense Attorney Do?

Investigate the charged incident Communicate with the prosecutor including plea

bargaining Prepare case for trial Submit defense motions Provide representation at trial Negotiate best sentence if client is convicted Determine whether to appeal

Gideon v. WainwrightThe Supreme Court ruling that an indigent

defendant charged in a state court with any non-capital felony has the right to counsel under the 14th Amendment.

The Supreme Court ruling that an indigent defendant charged in a state court with any non-capital felony has the right to counsel under the 14th Amendment.

Argersinger v. Hamlin

The Supreme Court ruling that a defendant has the right to counsel at trial whenever he or she may be whenever he or she may be imprisoned for any offenseimprisoned for any offense, even

for one day, whether it is classified as a felony or a misdemeanor.

Indigent Defender SystemsIndigent Defender Systems

Public DefenderSystems

ContractSystems

Assigned CounselSystems

Public Defender SystemsPublic Defender Systems

• Thought of as law firms with only criminals as clients

• Paid for with tax dollars• Organized along county or state lines• Serve 68% of the population• Lawyers develop some expertise because of

daily contact with the criminal law

Assigned Counsel SystemsAssigned Counsel Systems

• Two kinds of assigned counsel:– ad hoc assigned counsel system– coordinated assigned counsel system

• System can suffer from:– unequal assignments– inadequate legal fees– lack of supportive services

Contract SystemContract System

• Grant of a specific amount given to a private firm or to a private lawyer

• Grant is based on:– Number of cases to be defended– Estimated cost per case

• May supplement services of a Public Defender’s Office

Costs of Defending the IndigentsCosts of Defending the Indigents

$ The number of cases are increasing at an alarming rate$ Lack of available attorneys willing to accept the low fees offered$ Legislatures see funding these programs as politically unpopular

$ The number of cases are increasing at an alarming rate$ Lack of available attorneys willing to accept the low fees offered$ Legislatures see funding these programs as politically unpopular

Three Basic Features ofthe Adversarial SystemThree Basic Features ofthe Adversarial System

• A neutral and passive decisionmaker, either the judge or jury;

• The presentation of evidence from both parties; and

• A highly structured set of procedures (in the form of constitutional safeguards) that must be followed in the presentation of that evidence.

Importance of Pretrial Procedures

Importance of Pretrial Procedures

Pretrial procedures are importantcomponents of the justice processbecause the great majority of all

criminal cases are resolved informallyat this stage and never come

before the courts.

Pretrial procedures are importantcomponents of the justice processbecause the great majority of all

criminal cases are resolved informallyat this stage and never come

before the courts.

Pretrial ReleasePretrial Release

Before proceeding to trial, the issue of releasing the suspect must be addressed. This issue may come up at the police station, at the initial court proceedings or at the arraignment in felony cases. At issue are the sometimes conflicting rights of the accused to be free before trial, and the need of the state to protect citizens from the accused prior to trial.

8th Amendment Right to Bail8th Amendment Right to Bail

• The amendment does not guarantee a right to bail, but a right to no excessive bail

• Stack v. Boyle– If a crime is bailable, the amount set

should not be frivolous, unusual or beyond a person’s ability to pay under similar circumstances.

The Likelihood of Pretrial ReleaseThe Likelihood of Pretrial Release

0

20 -

40 -

60 -

80 -

100

ViolentCrime

PropertyCrime

DrugCrime

PublicOrderCrime

31.9%

77.4%

35.1%31.3%

PercentPercent

Of ThoseOf Those

Charged Charged andand

ReleasedReleased

Prior toPrior to

TrialTrial

PercentPercent

Of ThoseOf Those

Charged Charged andand

ReleasedReleased

Prior toPrior to

TrialTrial

Extralegal Factors That MayAffect a Bail Decision

Extralegal Factors That MayAffect a Bail Decision

UncertaintyNot enough verifiable data

is available to help the judge in

a short period of time

Not enough verifiable data

is available to help the judge in

a short period of timeRiskNo way of knowing if the

accused will show up for trial

or commit another offense.

No way of knowing if the

accused will show up for trial

or commit another offense.

Overcrowded jails

Not enough information to tell

who must be detained and

who might be detained.

Not enough information to tell

who must be detained and

who might be detained.

Preventative Detention:The Controversy

• Based on the notion that certain offenders will commit crime while on release

• Society has the right to be protected from future criminal acts

• It is a form of punishment which is not based on a guilty verdict and is based on something that MIGHT happen

FOR AGAINSTFOR AGAINST

Misdemeanor ProceduresMisdemeanor Procedures

Usually released from police custodyComplaint filed, usually by police The formal

complaint identifies:• Criminal charges, date and place of the crime &

circumstances of the arrest

Initial Hearing is held and:• If the plea is guilty, case is disposed of• If the plea is not guilty, a trial date is set

ArraignmentArraignment

• The arraignment is the step at which the accused are read the charges against them and are asked how they plead. In addition, the accused are advised of their rights. Possible pleas are:

• Guilty, not guilty, nolo contendere, not guilty by reason of insanity

• The arraignment is the step at which the accused are read the charges against them and are asked how they plead. In addition, the accused are advised of their rights. Possible pleas are:

• Guilty, not guilty, nolo contendere, not guilty by reason of insanity

Felony ProceduresFelony ProceduresBecause felonies are more serious,

an intermediate step is requiredthat establishes to an “objective

body” that there is probable cause tobelieve that a crime has taken place

and that the accused should betried on the matter. There are two

approaches to this issue: the Grand Juryand Information Systems.

The “Information” or “Preliminary Hearing” System

• Conducted before a judge• Open proceedings• Prosecution and defense attend• Witnesses may be confronted• Rules of evidence apply• Judge makes decision on whether to bind over for trial

A system to establish probable cause that is different from the Grand JuryA system to establish probable cause that is different from the Grand Jury

From the Magna Carta An investigative and accusatorial

group of citizens representingthe people of a jurisdiction

Qualifications vary: Resident, 18years old, citizen, speak English

Determines if probable cause exists for one to be “boundover for trial.”

From the Magna Carta An investigative and accusatorial

group of citizens representingthe people of a jurisdiction

Qualifications vary: Resident, 18years old, citizen, speak English

Determines if probable cause exists for one to be “boundover for trial.”

The Grand JuryThe Grand Jury

State Grand Jury RequirementsState Grand Jury Requirements

Grand Jury SessionsGrand Jury Sessions

• Controlled by the prosecutor

• Closed and secret deliberations

• One sided (ex parta ) Accused not allowed to attend

• Controlled by the prosecutor

• Closed and secret deliberations

• One sided (ex parta ) Accused not allowed to attend

Criticisms of the Grand JuryCriticisms of the Grand Jury

• A rubber stamp for the prosecutor. NY Judge “...the grand jury would indict a ham sandwich if the prosecutor wanted it to.”

• Costly and creates delays• Does not serve as a check and balance of

government powers as it currently operates

Motion to suppressevidence

Motion tochangevenue

Motion todismiss the

case

Motion toobtain

evidence

Motion toinvalidate a

search warrant

Motion toinvalidate a

search warrant

Pretrial MotionsPretrial Motions

Following One Hundred Felony Arrests: The Criminal Justice Funnel

Following One Hundred Felony Arrests: The Criminal Justice Funnel

Managing the Charging DecisionManaging the Charging Decision

TransferModel

UnitModel

LegalSufficiency

Model

SystemSufficiency

Model

TrialSufficiency

Model

DefendantRehabilitation

Model

(For definitions, see pages 312-313 in your book)

The Guilty PleaThe Guilty Plea

• The most common plea• Judge must inform accused of:

– loss of rights– right to counsel– consequences and possible sentences

• Must establish that the plea is voluntary

Plea BargainingPlea Bargaining

90%of all

convictions

90%of all

convictions

Concessions of Plea BargainingConcessions 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

Pros and Cons of Plea BargainingPros and Cons of Plea Bargaining

Reduced costs Improved efficiencyConcentrate on serious

casesAvoids pretrial

detention and delays

• Encourages defendants to waive constitutional rights

• Results in lesser sentences and sentencing disparity

• May coerce innocent to plead guilty

Factors Affecting the Decision to Plea Bargain

Factors Affecting the Decision to Plea Bargain

• Nature of the offense• Defendant’s prior record and age• The type, strength and admissibility of

evidence in the case• Attitude of the complainant• Prosecutors in areas with low population are

more likely to bargain

• Nature of the offense• Defendant’s prior record and age• The type, strength and admissibility of

evidence in the case• Attitude of the complainant• Prosecutors in areas with low population are

more likely to bargain

Types of OverchargingTypes of Overcharging

Horizontal OverchargingBring a number of different

counts for a singlecriminal act.

Vertical Overcharging

Raising the level of a charge above

its proper place.

Reform Plea BargainingReform Plea Bargaining

• Make it more:– visible– understandable– fair

• Create specific guidelines• Require judicial supervision over the process• Place limits on the process

Entered verbally by defendant or his/her attorney Automatically entered if defendant stands mute before the

court Trial date is set Bail may be reconsidered

The Not Guilty PleaThe Not Guilty Plea

Nolo ContendereNolo Contendere

• Similar to a guilty plea in that the defendant states willingness to accept the punishment of the court.

• Because THIS IS NOT A PLEA OF GUILTY, it cannot be used against the defendant in any subsequent civil suit arising out of the same action.

• Similar to a guilty plea in that the defendant states willingness to accept the punishment of the court.

• Because THIS IS NOT A PLEA OF GUILTY, it cannot be used against the defendant in any subsequent civil suit arising out of the same action.

Legal Ethics on Trial:Defending the Guilty

Does defending the guilty protect thesuspect or society? (or both?)