Pretrial Procedures: The
Adversary System in Action
Chapter 9
Introduction to Criminal Justice 2003:
A Microsoft® PowerPoint® Tool
Slides prepared by:
Larry Bassi
SUNY Brockport
© 2002 Wadsworth Publishing Co.
What Titles Do Prosecuting Attorneys Have?
District
Attorney
U.S.
Attorney
County
Attorney
State’s
Attorney
The Baltimore City State’s Attorney’s
Office
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
Prosecutorial Options:
Discretionary Decisions
One of the most critical decisions a
prosecutor makes, is who to prosecute.
A prosecutor can:
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
Factors That Influence
Prosecutorial Decision Making
System Factors Case Factors
• 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
Politics 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.
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. Wainwright
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
imprisoned for any offense, even for
one day, whether it is classified as a
felony or a misdemeanor.
Indigent Defender Systems
Public Defender
Systems
Assigned Counsel
Systems
Contract
Systems
Public 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 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 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 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
Attorney-Client Relationships
I know that my lawyer can’t
disclose what I said, but he’s a
public defender and works
for the city just like
the cops and the D.A.
How can I ever win?
Three Basic Features of
the 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
Pretrial procedures are important
components of the justice process
because the great majority of all
criminal cases are resolved informally
at this stage and never come
before the courts.
Pretrial 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 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 Release
Percent
100
Of Those
80 -
Charged
and
60 -
Released
Prior to
Trial
40 -
77.4%
31.9%
35.1%
31.3%
20 0
Violent Property Drug
Crime Crime Crime
Public
Order
Crime
Extralegal Factors That May
Affect a Bail Decision
Not enough verifiable data
is available to help the judge in
Risk
a short period of time
No way of knowing if the
accused will show up for trial
or commit another offense.
Not enough information to tell
who must be detained and
who might be detained.
Bail
Property
Bond
Bail
Bond
Bail Bondsperson
and the problem
of ethics!
Average Bail Amounts for Various
Misdemeanors and Felonies
Bail Reform
• Manhattan Bail Project - 1961
– concluded that release based on verified information
was more effective than money bail
• Federal Bail Reform Act of 1966
– release should be under the least restrictive method
necessary
• Federal Bail Reform Act of 1984
– established presumption for ROR and formalized
preventative detention
Preventative Detention:
The Controversy
FOR
AGAINST
• Based on the notion
• It is a form of
that certain offenders
punishment which is
will commit crime while
not based on a guilty
on release
verdict and is based on
something that MIGHT
• Society has the right to
happen
be protected from
future criminal acts
Misdemeanor Procedures
Usually released from police custody
Complaint 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
Arraignment
• 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 Procedures
Because felonies are more serious,
an intermediate step is required
that establishes to an “objective
body” that there is probable cause to
believe that a crime has taken place
and that the accused should be
tried on the matter. There are two
approaches to this issue: the Grand Jury
and Information Systems.
The “Information” or “Preliminary
Hearing” System
A system to establish probable cause
that is different from the Grand Jury
•
•
•
•
•
•
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
The Grand Jury
 From the Magna Carta
 An investigative and accusatorial
group of citizens representing
the people of a jurisdiction
 Qualifications vary: Resident, 18
years old, citizen, speak English
 Determines if probable cause
exists for one to be “bound
over for trial.”
State Grand Jury Requirements
Grand Jury Sessions
•
•
•
Controlled by the
prosecutor
Closed and secret
deliberations
One sided (ex parta )
Accused not
allowed to attend
Criticisms 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
Pretrial Motions
Motion to
suppress
evidence
Motion to
change
venue
Motion to
invalidate a
search warrant
Motion to
dismiss the
case
Motion to
obtain
evidence
Following One Hundred Felony Arrests:
The Criminal Justice Funnel
Managing the Charging Decision
System
Sufficiency
Model
Transfer
Model
Trial
Sufficiency
Model
Unit
Model
Defendant
Rehabilitation
Model
Legal
Sufficiency
Model
The 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 Bargaining
90%
of all
convictions
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
Pros and Cons of Plea Bargaining
Reduced costs
• Encourages defendants to
waive constitutional rights
Improved efficiency
Concentrate on serious • Results in lesser
sentences and sentencing
cases
disparity
Avoids pretrial
• May coerce innocent to
detention and delays
plead guilty
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
Types of Overcharging
Vertical
Overcharging
Raising the
level of a
charge
above
its proper
place.
Horizontal Overcharging
Bring a number of different
counts for a single
criminal act.
Notable
United States
Supreme
Court
Decisions on
Plea
Bargaining
If Plea Bargaining was Eliminated..?
• Would fewer cases be prosecuted?
• Would prosecutors engage in more charge
bargaining?
• Would judges have a greater role in the
sentencing process?
• Would courtroom congestion increase?
• Would more people go to prison?
Reform Plea Bargaining
• Make it more:
– visible
– understandable
– fair
• Create specific guidelines
• Require judicial supervision over the process
• Place limits on the process
The Not Guilty Plea
 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
Nolo 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.
Legal Ethics on Trial:
Defending the Guilty
Does defending the guilty protect the
suspect or society? (or both?)