Pretrial Activities

2. Pretrial Activities • Several activities take place before a trial can begin: • First appearance • Pretrial release and bail • The grand jury • The preliminary hearing • Arraignment and plea

3. First Appearance • At their first appearance, defendants are brought before a judge and: • Formally notified of the charges • Advised of their rights • Given the opportunity to retain a lawyer or have one appointed to represent them • May be afforded the opportunity for bail

4. First Appearance • …must be held “without unnecessary delay”. Based on McNabb v. U.S. (1943), the standard is 48 hours. • …may include a probable cause hearing, if arrests were made without a warrant. • …some states waive the first appearance for arrests made based on arrest warrants.

5. Pretrial Release • Most defendants are given the opportunity for pretrial release. • Pretrial release decisions consider risk of flight or nonappearance in court and risk to public safety. Decisions focus on: • Seriousness of pending charges • Prior record • Information about the defendant • Available supervisory options if released

6. Pretrial Release • The most common pretrial release mechanism is bail, the posting of a bond as a pledge that the accused will return for court proceedings. • Bail serves two purposes: • helps ensure reappearance of the accused in court. • prevents unconvicted persons from suffering imprisonment unnecessarily.

7. Alternatives to Bail

8. Pretrial Release and Public Safety • Most defendants are granted pre-trial release. • A growing movement seeks to reduce the number of defendants granted pre-trial release. • Some states enacted danger laws, which limit the right to bail to certain kinds of offenders.

9. Grand Jury • Used by the federal government and about half of the states, grand juries: • are made of private citizens (often 23). • hear evidence only from prosecutors. • are held in secret, and generally the defendant is not there. • serve as filters to eliminate cases without sufficient evidence. • move a case forward if the majority of grand jurors agree on an indictment.

10. Preliminary Hearing • States that do not use grand juries rely on preliminary hearings: • They give the defendant an opportunity to challenge the legal basis of his detention. • A lower court judge summarizes the charges and reviews the rights of criminal defendants. • Competency to stand trial may be determined. • They have many of the same characteristics as a trial.

11. Arraignment and the Plea • Arraignment is the first appearance before the court with authority to try the case. • Two purposes: • Inform suspect of specific charges • Allow defendant to enter a plea • Types of pleas: • Guilty • Not guilty • Nolo contendere

12. Plea Bargaining • …the process of negotiating an agreement among the defendant, the prosecutor, and the court as to an appropriate plea and associated sentence in a given case. • Plea bargaining circumvents the trial process and dramatically reduces the time required for the resolution of a criminal case.

13. Plea Bargaining • Negotiated pleas are guilty pleas and result in conviction. • Some surveys have found that 90% of all criminal cases prepared for trial are eventually resolved through a negotiated plea. • After a guilty plea has been entered, it may be withdrawn with the consent of the court.

14. The Nature and Purpose of the Criminal Trial: • The trial process is highly formalized and governed by rules of evidence and other procedural guidelines, as well as informal rules and professional expectations. • The purpose is to determine the defendant’s guilt or innocence.

15. Factual guilt The defendant is actually responsible for the crime of which he is accused. Legal guilt The defendant is found guilty as charged. Factual vs. Legal Guilt

16. Adversarial System • The philosophy of the adversarial system is that the most just outcomes will occur when both sides are allowed to argue their cases effectively and vociferously before a fair and impartial jury.

17. Stages in a Criminal Trial • There are eight stages of a criminal trial. • Trial initiation • Jury selection • Opening statements • The presentation of evidence • Closing arguments • The judge’s charge to the jury • Jury deliberations • The verdict

18. FIGURE 10–1 Stages in a criminal trial. Stages in a Criminal Trial

19. Trial Initiation: The Speedy Trial Act • The Sixth Amendment guarantees that in “all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”

20. The Speedy Trial: Supreme Court Cases • Klopfer v. North Carolina (1967) • A speedy trial is a fundamental guarantee of the U.S. Constitution. • Baker v. Wingo (1972) • The 6th Amendment can be violated even if the defendant does not object to delays. • Strunk v. U.S. (1973) • Denial of a speedy trial should result in dismissal of all charges.

21. Federal Speedy Trial Act (1974) • Prosecution must seek indictment or information within 30 days of arrest. • Trial must begin within 70 days after indictment. • Trial start can extend to 180 days if the defendant is not available or if witnesses cannot be called within the 70 day limit.

22. Federal Speedy Trial Act Cases • U.S. v. Taylor (1988) • Court ruled that when delay is the result of actions by the defendant, the 70 day rule does not apply. • Doggett v. U.S. (1992) • “Even delay occasioned by the Government’s negligence creates a prejudice that compounds over time, and at some point, as here, becomes intolerable.”

23. State Speedy Trial Acts • Many states have enacted their own speedy trial legislation. • Most set a limit of 90 or 120 days as a reasonable period of time for a trial to begin.

24. Jury Selection • The Sixth Amendment guarantees the right to an impartial jury. • Jurors are expected to be unbiased and free of preconceived notions about guilt or innocence. • Prosecution and defense attorneys question potential jurors during the process of voir dire.

25. Jury Selection: Ensuring Impartiality • Both the prosecution and defense can use challenges to remove prospective jurors from jury pool. • Challenge to the array • Challenge for cause • Peremptory challenge

26. Challenge to the Array • A challenge to the array claims that the pool from which potential jurors are to be selected is not representative of the community. • It is argued in a motion before voir dire.

27. Challenge for Cause • A challenge for cause claims that a prospective juror cannot be impartial or fair. • Typically, each side has an unlimited number of such challenges.

28. Peremptory Challenge • Peremptory challenges remove potential jurors without the need to give a reason. • Typically, each side has a limited number of such challenges. • Federal government and states vary in the number of such challenges allowed.

29. Scientific Jury Selection • Scientific jury selection seeks to take advantage of peremptory challenges by using social science research techniques to select members of a jury. • Focus groups and surveys are used to assess the likelihood that an individual will be predisposed to a particular outcome. • Some people criticize this.

30. Sequestered Jury • Judges decide whether or not a jury should be sequestered—isolated from the public during the course of a trial and throughout the deliberation process.

31. Jury Selection and Race • Race alone cannot provide the basis for jury selection, and juries may not be intentionally selected for racial balance. • Batson v. Kentucky (1986)—the use of peremptory challenges for purposeful discrimination constitutes a violation of the defendant’s right to an impartial jury.

32. Opening Statements • The presentation of information to the jury begins with opening statements—the initial statements of the attorneys, describing the facts that he or she intends to present during trial to prove the case.

33. The Presentation of Evidence • Evidence—anything useful to a judge or jury in deciding the facts of a case. • First, prosecution presents its evidence. The defense follows.

34. Types of Evidence

35. The Evaluation of Evidence • Judges decide which evidence can be presented to the jury. • Evidence must be relevant. • The probative value must be weighed against the potential inflammatory or prejudicial qualities of the evidence.

36. The Testimony of Witnesses • Testimony—oral evidence presented by witnesses, including victims, police officers, the defendant, and specialists. • Witnesses must be competent to testify. • The defendant has the 5th Amendment right not to take the stand. • Witnesses are subject to direct and cross examination. • Witnesses who lie under oath commit perjury.

37. Children as Witnesses • 37 states allow the use of videotaped testimony while 32 states allow the use of closed circuit television. • Coy v. Iowa (1988) • Maryland v. Craig (1990) • Idaho v. Wright (1990) • White v. Illinois (1992)

38. The Hearsay Rule • Hearsay is anything that is not based on the personal knowledge of a witness. • The hearsay rule prohibits the use of “secondhand evidence”

39. Exceptions to the Hearsay Rule • Exceptions to the hearsay rule include: • Dying declarations • Spontaneous statements • Certain out-of-court statements • Example: 911 tapes may be allowed, unless the person is alive and in good health and can take the stand for questioning and cross-examination.

40. Closing Arguments • At the conclusion of the trial, both sides provide the jury with closing arguments—a narrative summation of a case presented to a judge or jury.

41. Judge’s Charge to the Jury • After closing arguments, the judge charges the jury to: • Select a foreperson • Deliberate • Return with a verdict • Judge may remind juries of statutory laws and requirement of impartiality.

42. Jury Deliberations and the Verdict • Deliberations may take minutes; some take weeks. • Many jurisdictions require a unanimous verdict. • Some juries are unable to reach a verdict. These deadlock juries are called hung juries. • Allen v. U. S. (1896)

43. Problems with the Jury System • Many jurors are ignorant of the law and legal precedent. • Some jurors personal opinions, biases, and emotions interfere with objectivity. • Some jurors fear personal retaliation.

44. Professional Jurors • Some critics of the jury system call for professional juries. A professional jury system offers these advantages: • Dependability • Knowledge • Equity

45. Improving the Adjudication Process • Improving the process may involve: • Greater unification and reducing the number of jurisdictions. • A growing number of court-watch citizen groups. • More accurate statistical measurement of court performance.