Pretrial Actions
Chapters
Seven
Eight
& Nine
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Role of the Prosecutor

Prior to Arrest
–Assist with obtaining warrants
–Provide legal advise on how
investigation is conducted
Role of the Prosecutor
 After
Arrest - Review police
reports to determine:
– Evidence available to establish each
element of crime
– Violations of Fourth or Fifth
Amendment
– Credibility of potential witnesses
– Likelihood witnesses will be available
for court appearances
Role of the Prosecutor
 Other
factors considered
– Attitude of public toward this type of
case
– Severity of offense versus other
cases pending
– Likelihood of winning the case
– Decide how many charges to file
Decision to Charge
 Prosecutor
Must Consider
Many Factors When Deciding
What Charges to File
 Such as:
Question 1
The prosecutor job is to review the police reports by asking what
question(s)?
A) Is there enough evidence?
B) Are the witnesses credible? Are they available?
C) Does it violate search and seizure amendment?
D) Does it violate freedom of speech amendment?
E) A and B only
F) A, B, and C
Decision to Charge
 Evidence
to establish each element
of the crime
 Are there violations of suspect's
rights that will make some of the
evidence inadmissible?
 Are the victim and eye witnesses
credible?
 What evidence will be excluded
because of the Hearsay Rule?
other problems with evidence?
Decision to Charge
 Jurisdiction
of court
–Geographical
–Subject matter
 Venue
 Statute
of limitations
Question 2
Criminal charges may be filed whenever there is __________ evidence
that the suspect committed a crime.
A) Habeus Corpus
B) Mens Rea
C) Prima Facie
D) Nolo Contendre
E) Thesis Notheis Answerus
Decision to Charge
 Does
Double Jeopardy bar filing
any of the charges?
 What degree of the crime
should be charged?
 If more than one person
committed the crime, should the
suspects be charged jointly or
separately?
Decision to Charge
 Will
filling additional charges
facilitate plea bargaining?
 Should a longer sentence be
sought because of the
defendant's prior
convictions?
The Criminal Complaint
Formal Requirements
 Identify
court:
–Name of State
–Name of Court
 Identify
parties:
–Prosecution listed as "State v
Smith”
–Names of all defendants given
along with relevant aliases
The Criminal Complaint
Formal Requirements
 List
crimes charged
–Crimes listed in separate
"Counts"
»Local rules govern whether the
most serious crime is charged or
whether a separate count is filed for
each possible degree of the crime
The Criminal Complaint
Formal Requirements
 Each count must give facts to
indicate:
– Geographical jurisdiction of court
– Statute of limitations has not run
– What crime is charged
– If multiple defendants are charged in
the complaint, the name of the
defendant charged in each count
must be indicated
People of the State of Georgia
Plantiff,
vs.
Ron Mexico
Defendent.
The above is an example of a:
A) Criminal Complaint
B) Statute of Limitations
C) Arraignment Process
D) Informal Charge
Question 3
Arraignment
Arraignment is normally the first
court appearance after the
charges are filed
Arraignment
Procedures at the arraignment:
 Defendant has the right to be
present in person
 Defendant will be given a copy
of the complaint
 Judge will advise defendant of
right to counsel
Arraignment
Procedures at the arraignment:
 Screening for public defender
 Continuance may be granted if
defendant needs time to hire an
attorney
Interview with Client
Establish Rapport – show interest
 Agree on Fee – most upfront!
 Advise all rights, warn not to talk
 Trust is priority
 Treat respectfully – walk in their shoes

– Explain attorney-client privilege
Attempt to accommodate needs
 Explain role of attorney and CJS overall

Question 4
Arraignment process is usually the ______ court appearance when
charges are filed.
A) Last
B) Worst
C) Best
D) First
Question 5
Which is NOT a plea that can be entered during the arraignment
process?
A) Guilty
B) Not Guilty
C) Innocent
D) Nolo Contendere
E) No plea
F) C and E
Interview with Client
 Explain
timeline
 Get extensive bio – in book
 Warn of snitches
 Counsel clients emotional needs
 Amsterdam Card – rights
Getting Story Straight
 Start
by letting them tell whole story
 Try to use clients perspective
 Get details and clear up timeline
 TAKE NOTES!
 Reiterate the Attorney-Client
Privilege
 Avoid Cross-Exam. - unless blatant
lies
Question 6
After arraignment, the Miranda rights do not apply because the
suspect is no longer in custody.
A) True
B) False
Post-Arraignment Actions
 Get
client’s story
 Establish decision-making authority
 Arrange Translator – non family, no
ties to government
Probable Cause Hearing
Purpose
 Probable cause hearing is
conducted to determine whether
there is probable cause to hold the
suspect in custody pending trial
 Hearing must be held within 48
hours of arrest except in an
emergency such as a natural
disaster which closes the courts.
Probable Cause Hearing
Purpose
 Sworn testimony is presented
(witnesses, affidavits or police
reports signed under oath) to
establish probable cause to
detain defendant.
Probable Cause Hearing
Purpose
 If judge determines that there is
probable cause the defendant may
be held in custody pending trial.
 The defendant must be released if
the judge does not find probable
cause has been established.
Preliminary Hearing
Purpose
 Judge hears testimony in open
court to determine if a prima facie
case has been established for each
felony charged
 Preliminary hearing is usually held
within two weeks after arraignment
unless defense agrees to
continuance
Preliminary Hearing
What Prosecutor Does
1. Presents evidence to establish
prima facie case for each element
of every felony in the complaint
2. Calls witnesses and conducts
direct examination
3. Cross examines witnesses called
by defense
Grand Jury
Grand Jury



Fifth Amendment right to indictment by
grand jury in cases involving capital
offenses and infamous crimes
– Only applies to criminal trials in
federal courts
Indictment is not required for cases
involving only misdemeanors
States are free to enact laws
authorizing use of preliminary hearing
instead of indictment
Grand Jury



Prosecutor who takes case to
grand jury seeks an Indictment.
Grand jury investigates case on its
own and returns a Presentment.
Grand juries may also hear a case
at the direction of a judge.
Grand Jury


Grand jurors usually serve a fixed
term
Grand jury is usually larger than
trial jury; historically it had 23
members
Grand Jury




Not all members are required to
be present when every case is
presented
State law sets number of votes
required to return indictment
TRUE BILL - sufficient evidence to
merit prosecution
NO BILL - charges rejected and
may be filed again
Question 7
A Grand Jury Proceeding is held in _______ and the Preliminary
Hearing is held in ________.
A) Board Room, Court Room
B) Court Room, Judges Chambers
C) Private, Public (Open)
D) District Court, Jail
Question 8
Which is NOT accurate of a Grand Jury Proceeding.
A) Cross Examination of witness
B) Exclusionary Rule does not apply
C) Defense allowed to present evidence
D) Held in private - press not allowed
E) A and C
F) All of the above
Handout!
Prelim v Grand Jury
Pre-Trial Release
Bail
 Not granted in capital cases
 Traditionally granted if
defendant is considered likely
to appear in court as
scheduled
Pre-Trial Release
1.
2.
3.
4.
5.
6.
7.
Cash bail
Non-cash bail
Bail bond
Personal bond
Own Recognizance (OR)
Release
Electronic Monitoring
House Arrest
Plea Bargaining

Benefits/Disadvantages of
PB from intro notes (not
simple test answers)
Question 9
Plea Bargain is:
A) Another reason for filing numerous charges.
B) Negotiations between prosecutor and defense lawyer
C) A way to get some charges dropped.
D) All of the above
Question 10
A(n) __________ is a formal charging document which is returned by a
grand jury after investigation of a case.
A) Arraignment
B) Indictment
C) Plea Bargain
D) Verdict
Question 11
Tommy has been arrested for minor in possession of alcohol. It is
Tommy's first alcohol offense and has no prior criminal record.
What court tactic would serve best in this scenario?
A) Indictment
B) Diversion
C) Plea Bargain
D) Send him to the big house
E) Put him on house arrest
F) Deport him
Diversion




Programs divert defendants
from the criminal justice
system
Most diversion programs are
designed for first offenders
Diversion usually focuses on
counseling programs
Program are designed for
specific types of offenders
Diversion



Attending counseling sessions is
mandatory
Completion of diversion program
usually entitles defendant to
dismissal of the charges and/or
expunging arrest record
Prosecutor may take case to
trial if court rules defendant
failed the diversion program
Challenges to Criminal
Complaint, Indictment and
Information by Defense
Double Jeopardy

Needs official court records
indicating defendant has prior
conviction or acquittal on crime
charged or greater/lesser
included offense.
Question 12
The ________ amendment protects against double jeopardy.
A) First
B) Second
C) Third
D) Fourth
E) Fifth
F) Sixth
Lack of Subject Matter
Jurisdiction

Must show state law indicating
the court where the pleadings
were filed does not have
authority to handle this type of
case.
Statute of Limitations
Compare date complaint states
crime occurred with date
charges were filed to
determine if statute of
limitations for specific crimes
expired before case was filed.
Lack of Speedy Trial
Must show delay after indictment
or filing charges was
detrimental to defendant's
case.
Factors considered:
Lack of Speedy Trial




length of delay
defendant has asserted right
to speedy trial
no valid reason for delay
defendant's case was
prejudiced by delay
Question 13
A Speedy Trial refers to the period from:
A) Indictment to Verdict
B) Arrest to Verdict
C) First day of Trial to Last day of Trial
D) Arrest to First day of Trial
E) Conception to Verdict
Failure to State a Cause of
Action

Challenges wording of
pleadings: claims no crime
was committed even if
defendant committed the acts
alleged.
Exclusionary Rule and Fruit of
the Poison Tree Doctrine
 U.
S. Supreme Court imposed
Exclusionary Rule on the states in
Mapp v. Ohio (1961)
– evidence obtained in violation of the
suspect’s constitutional rights is not
admissible at trial to establish his/her
guilt
Exceptions to the
Exclusionary Rule
“Good faith” exception:
 “good faith” belief that they were
acting pursuant to a valid warrant
 “good faith” belief that they were
enforcing a valid law but the law
was later determined to be
unconstitutional
Exceptions to the
Exclusionary Rule
“Good faith” exception:
 “good faith” reliance on computer
information that indicated there was a
valid warrant outstanding for the arrest
of the suspect although the warrant had
actually been recalled prior to the arrest
WARNING: the “good faith” exception is a
very limited; it does NOT apply to every
act an officer does in good faith
Exceptions to the
Exclusionary Rule
Inevitable Discovery:
 Although unconstitutional means
were used to find the evidence, it
was inevitable that the evidence
would have been discovered using
legal means
Exceptions to the
Exclusionary Rule
Independent Source :
 Evidence was found using totally
untainted information from sources
independent of the illegal search or
confession
Exceptions to the
Exclusionary Rule
“Public Safety” exception :
 Allows brief questioning of a
suspect at the time of his/her arrest
when officers believe there is an
emergency threatening public
safety
Question 14
____________ and ____________ are the two most common reasons
the Exclusionary Rule is used.
A) Arrest without probable cause, Miranda not administered
B) Invalid ID Card, Confessing to a crime
C) Search, Seizure
D) Illegal cavity search, False Imprisonment
Fruit of the Poison Tree
Doctrine



Evidence derived from illegally
obtained evidence is not admissible at
trial
Time and intervening circumstances
may result in the taint of the initial
illegal act being removed.
Result: evidence derived from initial
illegal activity may be admissible;
original illegally obtained evidence
remains inadmissible.
Challenges to Evidence by
Defense
Challenge to Validity of
Warrant
Challenge to Validity of Warrant
Warrant not based on probable cause
Evidence Considered: Facts in
affidavits and sworn testimony
considered by judge at time warrant
was issued. Facts known to the
officers but not presented to the judge
as sworn evidence may not be
considered.
Legal Issue: Do all the facts, taken
together, establish probable cause?
Challenge to Validity of Warrant
False information used to obtain
warrant
Evidence Considered: Whether officers
knowingly included lies in the affidavit
used to obtain a warrant. Reckless
disregard for the truth is treated the
same as knowingly including lies.
Legal Issue: Do the facts that remain,
after excluding items officers knew or
should have known were untrue,
establish probable cause?
Challenge to Validity of Warrant
Search warrant executed in
inappropriate manner
Evidence Considered: Compare search
that was authorized in the warrant and
the search actually conducted. Also
consider: had warrant expired? are
there other grounds, such as Plain
View Doctrine, for the officer's actions?
Legal Issue: Did officers restrict search
to places authorized in the warrant and
items the warrant stated they could
seize? Is the seizure justified on other
legal grounds?
Challenges to Evidence by
Defense
Challenges to acts not
done pursuant to a
warrant
Challenges to acts not done pursuant
to a warrant
Searches:
Evidence Considered: What the
officers did and why the officers
conduct the search.
Legal Issue: Is there an exception
to the Fourth Amendment which
justifies the officer's actions?
Prosecution bears burden of proof.
Challenges to acts not done pursuant
to a warrant
Arrest:
Evidence Considered: All facts
available to officer at time arrest
was made.
Legal Issue: Did the officer have
probable cause to make the
arrest? Was an arrest warrant
required?
Challenges to acts not done pursuant
to a warrant
Confessions:
Evidence Considered: All facts
surrounding the interrogation.
Legal Issues: Were Miranda
warnings required? Were Miranda
warnings given correctly? Did
suspect waive Miranda rights?
Defendant's Right to Discovery
 Brady
material: Due Process
mandates that the prosecution
must disclose evidence that might
be used to exonerate the
defendant.
 Prosecutor is assumed to know
everything that the police have in
their files
Defendant's Right to Discovery
If defendant makes specific request
 prosecution must check file for
items requested and give defense
the information if it is available
Defendant's Right to Discovery
If defendant makes general request
 prosecution must check file and
give defense information that
appears to show defendant's
innocence
Defendant's Right to Discovery
If defendant makes no request.
 prosecution must give defense
information that appears to show
defendant's innocence
Defendant's Right to Discovery
Local rules may give defense the
right to pre-trial notice:
 Witnesses prosecution plans to call
 Statements prosecution witnesses
have made to the police or
prosecutor
 Copies of statements that
defendant made to the police
Prosecution's Right to
Discovery
Fifth Amendment privilege against
self-incrimination bars prosecution
from obtaining incriminating
statements by defendant that
defense has on file
Prosecution's Right to
Discovery
Local rules may give prosecution the right
to pre-trial notice:
 Defendant intends to claim alibi
 Names of witnesses defense intends to
call
 Statements defense witnesses, except
defendant, have made
 Items of physical evidence defense
plans to introduce and lab tests
performed on the items
Question 15
The pretrial process of learning what evidence the other side has is
called:
A) Exclusion
B) Seclusion
C) Reclusion
D) Discovery
Pre-Trial Conference
Conference between judge and all
attorneys in case frequently held in
judge's chambers usually held a
few days before the trial is
scheduled to begin
Pre-Trial Conference
Topics considered:
 Is there a plea bargain agreement?
 How long is the trial expected to
last?
 Is any special equipment needed?
 Is an interpreter needed?
 Will there be a jury?
Pre-Trial Conference
Topics considered:
 How many prospective jurors are
needed?
 Will questionnaires be used to
screen potential jurors?
 Will the jury be sequestered?
Pre-Trial Conference
Topics considered:
 Will the jury be transported to crime
scene for a view?
 How many alternate jurors will be
needed?
 Do special accommodations need
to be made for media coverage of
the case?
Question 16
A preliminary examination of potential jurors, under oath, to determine
their competence or suitability for a case is called:
A) Conferencing
B) Debating
C) Delegating
D) Selecting
E) Voir Dire
Pretrial Actions
Chapters
Seven
Eight
& Nine