Pre-trial Process
Court Systems and Practices
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Entry into the Court System
• A person enters the court system when they are
arrested
– An arrest occurs when adequate evidence exists
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Entry into the Court System
(continued)
• Once the person is arrested they are taken to
jail and booked
– Booking consists of
• Obtaining biographical information about the defendant
(name, address, dob, etc.)
• Fingerprinting the defendant
• Taking the defendant’s photograph (the mug shot)
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Entry into the Court System
(continued)
• A police officer (or sometimes the prosecutor)
files a complaint, which is the charge
– The complaint is a written statement of the
essential facts constituting a charged offense. It is
made upon oath before a magistrate.
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Entry into the Court System
(continued)
• This is also known as an affidavit
• Hearsay can be allowed in a complaint
• If a person is not in custody when an officer
has his complaint signed by the judge, it then
becomes a warrant for that person’s arrest
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Visiting with the Judge
• The first appearance before the judge is called
the initial appearance
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Visiting with the Judge
(continued)
• The judge
– Confirms the identity of the defendant
– Informs of various rights such as remaining silent
and having an attorney
– Gives a date to show up to court for their
preliminary hearing
– Advises the defendant of how much their bail is
• This happens within 24 to 48 hours of being
arrested
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Bail
• Bail is the money or property given as security
for a defendant’s appearance in court.
– It may be lost if the defendant does not appear at
the court date
– Also know as the bond
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Bail
(continued)
• Surety Bond – when a third party agrees to pay
the bond
– The defendant pays a professional bondsman 10
percent or more of the bond amount in exchange
for the bondsman making the defendant’s bail
– The defendant does not get the 10 percent back
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Bail
(continued)
• Property Bond – when the defendant pledges a
car, house, or other property to retain release
• Cash Bond – the defendant puts up his or her
own cash to bail out
• Personal Recognizance – when a defendant
needs only to promise to appear in court
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Bail
(continued)
• The 8th Amendment does not allow bail to be
excessive
– The Supreme Court has ruled that just because a
defendant cannot pay the amount the court has set
it is not necessarily excessive
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Bail
(continued)
• The bail amount can depend on
– The nature of the crime
– The defendant’s criminal history
– Flight risk
– How much wealth the defendant has
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Bail
(continued)
• Bail can be denied depending on some of the
following:
– The type and nature of the crime
– Flight risk
– Protection of the victim or the defendant
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Preliminary Hearing
• The defendant’s second appearance before a
judge in which the court determines if
probable cause exists to believe the accused
committed the crime
• The purpose of the hearing is to have an
impartial third party review the facts to be sure
that probable cause exists
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Preliminary Hearing
(continued)
• The preliminary hearing is many times
bypassed and the case is sent to the grand jury
• The hearing is adversarial and can serve as a
source of discovery for both the prosecutor and
defense
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Preliminary Hearing
(continued)
• Other motions to throw out illegally seized
evidence, etc. are made after the preliminary
hearing
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Grand Jury
• A group of people who routinely meet to
determine whether there is probable cause to
believe that defendants committed the crimes
they are charged with
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Grand Jury
(continued)
• Grand Juries
– Are closed
– Are presented evidence by the prosecutor only
– Are secret
– Do not have the defendant present
– Have the power to subpoena witnesses to testify
and give immunity from prosecution
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Grand Jury
(continued)
• If the grand jury finds that probable cause does
exist, the defendant is issued a true bill of
indictment, or is indicted
• If the grand jury finds that probable cause does
not exist, the defendant is no billed and the
case is dropped
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Arraignment
• After formal charges have been filed, the
defendant is brought to court for the
arraignment
• The arraignment is the hearing at which the
defendant is brought before a judge to hear
charges and enter a plea
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Arraignment
(continued)
• The defendant will enter any of the following
pleas:
– Not guilty
– Guilty
– Nolo contendere or no contest
• Means “I do not contest it”
• The defendant neither admits nor denies the charges,
and has no intention of defending themselves
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Arraignment
(continued)
• A guilty plea must be
▫ Voluntarily
▫ And the defendant must be aware of its implications
• No plea is the same as a not guilty plea
• A plea bargain can be announced—a
negotiation between a prosecutor and the
defendant’s lawyer where the defendant pleas
guilty for a lesser punishment so the case
doesn’t go to court. This has to be approved
by the court
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Resources
• 0766818314, Criminal Law and Procedure (5th
Edition) by Daniel E. Hall, J.D., Ed.D.
• 0821107321, Introduction to Criminal
Evidence and Court Procedure (3rd Edition) by
Julian R. Hanley, Wayne W. Schmidt, and
Larry D. Nichols
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