The vast majority of cases do not go on to
trial, but are resolved at this phase. The bail
decision is particularly important, as those
denied a pre-trial release are far more likely
to be convicted than those who are
released.
Less than 10% of all criminal cases go to trial, why:
1. Police/prosecutor decision to bring charges in
the initial stages
2. Judge dismisses the case at the preliminary
hearing
3. Grand jury refuses to indict
4. Prosecutor decides to drop the case
1. Seriousness of the offense
2. Strength of the case in an evidentiary sense:
A. Substantive – solid evidence, quality
witnesses
B. Procedural – search and seizure
violations by the police
3. Attitude concerning the offense (ie.,
marijuana, prostitution)
4. Prosecutorial intuition
5. Personal psychic state of the prosecutor at the
moment
6. Political factors:
- person so well-known impossible to get a conviction,
- successful prosecution not sit well with the community
- pressure to drop the case from the general public in the
aggregate and/or key political figures
- person is acquainted with the prosecutor in some way
7. Humanitarianism (drop charges in lieu of obtaining
psychiatric help/joining the military/serving in the Peace
Corps, etc)
8. Communal justice better served by nulling or reducing charge
severity
9. Organizational factors, generally lack of resources (expertise,
money, time)
10. Pressure to drop the case from other justice system actors
11. Batting average games
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Amount of bail varies with the severity of the
offense and the characteristics of the accused.
Defendant retains a criminal liability; just a
release pending future court processing.
Different pre-trial release/bail options:
a. Bond yourself out
b. Bail Bond agent
c. 10 percent system
d. ROR/PTR bond
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Stack v. Boyle (fail to appear test) - Bail may be
denied if there is probable cause to believe that
defendants will fail to appear at future judicial
proceedings.
U.S. v. Salerno (dangerousness test) - Bail may be
denied if there is clear and convincing evidence that
defendant are dangerous and pose a threat to the
community at large and the court participants in
particular.
Taylor v. Taintor - Bail bond agents may use physical
force to capture their bondees who have skipped bail,
as long as the force used is reasonably related to the
custody and/or transportation of the bondees.
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Generally run by Prosecutors
Sometimes called deferred
sentencing/withheld adjudication
Non-dangerous, generally non-violent
offenders may earn the dismissal of charges if
they abide by certain rules.
If the defendant fails to abide by the rules/by
the contract, the original charges can be filed.
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No new offenses
Pay restitution to the victim, and/or complete some
form of community service
Maintain employment and/or stay in school
Obtain a drug/alcohol/mental health evaluation
Complete a drug/alcohol/mental health program when
applicable
Pay a small fee
Sign a confession regarding the case at hand
Again, if the defendant fails to abide by the agreement, the
original charges can be filed
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Removes people from/minimizes their level of
intrusion into, the justice system
Save money for all concerned
No record for persons involved, so no stigma
(can get into law school, medical school,
become a barber, get bonded, etc)
Offenders are held accountable/compensation
is made (just desserts)
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Widening of the net
Constitutional infringements
Class bias