The Courts: Prosecution/Adjudication
• Three phases in Adjudication
I. Pretrial Events
II. Trial Events
III. Post-trial events
I. Key Pre-Trial Events:
Initial Appearance
Other Appearances
Preliminary Hearing
Grand Jury Hearing
Information
Indictment
Arraignment
Other Pretrial Hearings
Initial Appearance:
• Jailed defendant brought before judicial officer
(magistrate or lower-level judge)
– Must occur without delay after arrest & detention
• Defendant is informed of charges
• Defendant is informed of legal rights (including
Miranda & right to counsel)
• Initial decision on pretrial detention & bail
• Identification of other special conditions
Preliminary Hearing:
• A “Probable Cause” hearing to provide judicial
review of decision to charge (complaint)
• Usually heard in lower-level court within a few
days or few weeks after arrest & initial appear.
• Prosecutor must show “probable cause” to
believe that crime occurred and accused did it
– Present evidence, witnesses, & documents
– Defense may challenge evidence & cross-examine
– An adversary proceeding but not a full-blown trial
• Judge decides if probable cause to proceed
– To “bind over” the defendant for prosecution
Preliminary Hearing (cont):
• In felonies, no plea is entered at preliminary
hearing (court lacks general jurisdiction)
• BUT, if charges reduced to misdemeanor level,
final disposition may occur at this point
– Preliminary hearings often heard in lower courts
– Strong incentive for on-the-spot plea bargaining
• Preliminary hearing may be waived by
defendant, but this can be an important point
to challenge the state’s case
Grand Jury:
• A sitting panel of 12 to 23 citizens serving for
specific term to provide “probable cause”
review on prosecutor’s decisions to prosecute
• Prosecutor presents a Bill of Indictment to the
Grand Jury
– Presents evidence and questions witnesses before
the grand jury (in closed proceedings)
– Right to counsel does not apply in grand jury
• If probable cause is established, then grand
jury returns a “true bill” of indictment
– Which occurs most of the time
Arraignment:
• 1st Court Appearance to enter formal plea
• Possible pleas?
– Not Guilty (entered by accused or court)
– Guilty (must be voluntary and with factual basis)
– No Contest (nolo contendere)
– Non-plea (“standing mute”)
– Other pleas: NGRI
• Also arrange for Pre-trial release & counsel
• Schedules future legal proceedings
• Initial plea might later be withdrawn/changed
Other Pretrial Events = Hearings on
Pretrial Motions, such as:
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Dismissal of charges
Suppression of evidence or confession
“Discovery” of prosecutorial evidence
Change of venue
Change of personnel (judge, lawyer)
Determination of competence
Severance of cases or defendants
Continuance
Change in pretrial detention/bail
Three Very Important Pretrial
Processes:
A. Pretrial Detention vs. Release
B. Pretrial Diversion (into
alternative resolution)
C.Plea Bargaining
A. Pretrial Custodial Status
• Pretrial status alternatives:
1) Liberty (pretrial release from jail)
2) Conditional liberty (conditional
release)
3) Detention (pretrial incarceration)
A. Pretrial Status of Accused
• What are the constitutional guarantees
regarding pretrial release?
– No absolute right to bail
– Constitution merely prohibits setting
“unreasonable bail”
• Bail decision is intended to address two
concerns:
1) Defendant’s presence at trial
2) Protection of public safety
• Note: defendant = not convicted yet
A. Pretrial Status of Accused
• Securing pretrial release – Methods:
– Release on Recognizance (ROR)
– Conditional Release
– Secured bail (cash or property)
• By offender
• By others
• Preventive Detention – denial of any bail
– Legally more controversial
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Applied selectively
Applied to unconvicted persons
– Not necessary in most cases (?)
A. Pretrial Status of Accused
• Conditions of Pretrial Detention
– Jail = all-purpose warehouse for:
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Unadjudicated defendants pre-trial
Convicted misdemeanants serving time
Convicted Felons under appeals
Other disorderly persons
– Note: “jail” different from “prison”
• Personal impacts of Detention
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Discomforts & Dangers of jail
Loss of social contact & resources
Loss of employment & income
“Punishment by imprisonment” even if acquitted
A. Pretrial Status of Accused
• Effects on case development?
– Case preparation is hindered
– Impact on jury perceptions
– Motivation to bargain & plead guilty
• Correlation with case outcomes?
– Greater likelihood of guilty pleas
– Greater likelihood of conviction
– Greater likelihood of incarceration
B. Pretrial Diversion:
A. What is it? What does it involve?
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Suspending or dropping formal prosecution in
exchange for offender doing a treatment
alternative
• If treatment is satisfactorily completed then no
additional prosecution occurs
• Prosecution may be reinstated if offender fails
to fulfill alternative treatment requirement
• Note difference between:
a) Informal diversions (discretionary acts)
b) Formal diversions (formalized programs)
B.Why is Pretrial Diversion used?
• Basic idea = some offenders/cases are
better resolved through non-CJS procedures
without invoking the criminal law & punitive
sanction
– Avoid negative effects of criminal label
– Some cases need treatment not
punishment (effectiveness)
– Resources saved for serious cases
– Use threat of prosecution as “motivator”
Felony Cases Adjudicated
(100)
Dismissed
(25)
Guilty Pleas
(65)
Trials
(3)
Guilty
(2)
Acquittal
(1)
Convicted/Guilty
(67)
Probation
(19)
Prison
(21)
Jail
(27)
(Felony Cases in Urban Counties, 2002)
Diverted/deferred
(7)
C. Plea Bargaining
A. What is it? What does it involve?
• Negotiated disposition where defendant
does not contest guilt (usually guilty plea)
in exchange for concessions by prosecutor
• May involve more than merely pleading
guilty:
– Full accounting of criminal offense and responsibility
– Provide additional information about other crimes or
offenders (incl. testify in other cases)
– Non-contest of specific facts or issues
– Waiver of some constitutional rights
Plea Bargaining
A. What kinds of prosecutorial concessions?
– Charge reduction (in level or number)
– Sentence reduction (recommendations)
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Length of sentence
Conditions of confinement
Reduction in severity of criminal label
Stipulation of facts of the case
Not invoke extra considerations
Charge or Sentence reductions for codefendants
C. Plea Bargaining
B. Where and when does it occur?
• Mostly in pre-trial stage
– In court room or in prosecutor’s office
– May occur at jail
– Usually initiated by defense counsel
• Does not occur during actual court
proceedings in pretrial or “on-the-side
conferences”
• No specific or universal protocol
• An American invention?
Plea Bargaining
C. The advantages of plea bargaining
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Reduction in costs (in time and effort)
– Less time taken
– Less trouble and cost
– Management of large caseloads
• Reduction in uncertainty
– It guarantees the outcome
– It provides some degree of control
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Individualization of cases
Allows offender to acknowledge guilt
Plea Bargaining
D. What legal issues are involved?
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PB is neither sanctioned nor prohibited in
constitution or statutory law (but case law
allows it)
Guilty plea forfeits certain constitutional rights
Guilty plea may impact appeals & civil cases
Bargains are mostly off-the-record & implicit
May punish defendants who insist on trial
– Longer sentences for trial convictions
Fig. 9-6, p. 230
Plea Bargaining
E. Why is it controversial?
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It encourages defendants to forfeit rights
Allows dangerous offenders off too easily
May induce innocent persons to plead guilty
Off-the-record nature encourages misconduct
Lack of oversight short-circuits due process
Encourages a “Culture of Bargaining”
– Leads participants to view each other negatively
– Leads to cynical view of the justice system
– Encourages over-charging by prosecutors
Plea Bargaining
F. The Regulation of Plea Bargaining
• Abolition of plea bargaining?
– Alaska
– California
• Regulation and standardization
– Pretrial conferences
– Prosecutorial rules & policies
– Statutory limitations (sentencing; charging)
I. The Future of Plea Bargaining?
• Note the ubiquity of the practice
– In the U.S.
– Spread to other countries and legal systems
• Likelihood any large scale changes in
plea bargaining?
– Unlikely to disappear or greatly diminish
– May transform into other procedures that
look different but have the same outcomes
(the Whack-a-Mole problem due to
discretion)
Felony Cases Adjudicated
(100)
Dismissed
(25)
Guilty Pleas
(65)
Trials
(3)
Guilty
(2)
Acquittal
(1)
Convicted/Guilty
(67)
Probation
(19)
Prison
(21)
Jail
(27)
(Felony Cases in Urban Counties, 2002)
Diverted/deferred
(7)
The Trial Process:
• If accused pleads “not guilty”, guilt
must be decided at trial
• Trial is set up an adversary process or
legal battle
– Contested according to specific rules
(“due process”)
– Attempt to equalize the battle between
state & defendant
– Truth will emerge from the contest
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The Legal Content of “Due Process”:
 Presumption of Innocence
 Strict standard of proof required
 Freedom against self-incrimination
 Right to speedy & public trial
 Right to legal counsel
 Right to confront witnesses & evidence
 Right to compel witnesses & evidence
 Right to unbiased trial by jury
 Requirement of competence
 Right to appeal conviction
 Freedom from double-jeopardy
3 of 3
The Trial Process:
• Two forms of trials:
– Jury Trial
 This means two extra steps in trial
process
1)Jury selection
2)Jury deliberation
– Bench Trial
 Right to a trial by jury is waived
 Only a judge hears the case and renders
a verdict
3 of 3
Types of Trials: How Often? Which
types?
Rates of Plea Bargaining
4 of 6
The Jury System
• Based on the presumption that justice is
ensured when community judges guilt
• Jury trials mostly unique to the Common
Law system (and to the United States)
• About 80% of all jury trials occurring in the
world take place in the U.S.
• Yet jury trials in the U.S. seldom occur
• Jury trial = example of “justice defined by a
rare event”
1 of 3
How are juries selected
– The master jury list is made up of all eligible
jurors in a community (drawn from some
existing list – e.g.,registered voters)
– The first step = summon the venire (or “jury
pool”) people who are on jury duty
– Next step is = selection of the “jury panel” for
case (from whom actual jury is picked)
– Voir Dire – questioning of prospective jurors
from the panel to select the “sitting jurors” for
that trial
Jury Selection (cont.)
• Based on the Voir Dire, the attorneys
will ask to exclude some potential jurors
– Challenges for cause – exclusion based on
specific reasons related to bias
– Peremptory Challenges – exclusion without
specifying any specific reasons
• Peremptory challenges may not be used
to systematically by gender or race
Jury Deliberations:
• Jury is first given specific instructions to
follow in reaching a verdict in the case
• The jury is isolated while deliberating
• Jury may be sequestered if deliberations take
longer or will be influenced by outside factors
• Jury’s task of reaching a unanimity compels
an active deliberation & persuasion process
• Jury may “nullify the law” when it feels justice
is compromised by literal application
• Failure to reach unanimity  hung jury 
mistrial