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 counsel
 Should 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 selfincrimination 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 judge
 At 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

Misdemeanor
 Asked to enter a plea of guilty or not guilty

Felony
 Informed of the charges
 Advised of rights
 Does 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 risk
 In 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
defendant
 Placing the defendant in the custody of a 3rd party
 Requiring the defendant to maintain or get a job
 To reside at a certain address
 To 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 crime
 A 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 once
 The law presumes dangerous a person arrested for a drug
offense that carries a possible sentence of more than ten
years
 Someone who previously committed a violent crime while
released pending trial is also presumed dangerous

Supporters of pretrial release say
 It prevents punishment prior to conviction
 Gives defendants the freedom to help prepare
their cases
 The 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 Act
 They 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
information
 The information details the nature & the circumstances
of the charges brought against a defendant
 It 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
hearing
 It 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 system
 Some 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 jury
 In 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 guilty
 This 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 prosecutor
 Plea 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 states

 Thus, illegally seized evidence is not allowed at
state trials
 Ms. 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 search
 This 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 rule
 Under 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 witnesses
 5 members of the U.S. Supreme Court rejected
Illinois’s expansion
 Justice 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
convictions
 They 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 sentence

 They 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 programs
 For 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 proceeding
 www.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