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Chapter 9 Pretrial Procedures: The Adversary System in Action
Learning Outcomes LO1:List the different names given to public prosecutors and indicate the general powers that they have. LO2: Delineate the responsibilities of defense attorneys LO3: List the three basic features of an adversary system of justice. LO4: Explain how a prosecutor screens potential cases. LO5: List and briefly explain the different forms of plea bargaining agreements.
List the different names given to public prosecutors and indicate the general powers that they have.
Learning Outcome 1 • Criminal cases are tried by public prosecutors, who are employed by the government. • Referred to as prosecuting attorneys, district attorneys, county attorneys, or city attorneys.
Learning Outcome 1 Prosecutor’s discretion in the pretrial phase includes: • Whether an arrested individual will be charged with a crime • The level of the charges • If and when to stop the prosecution.
Learning Outcome 1 • The attorney general is the chief law enforcement officer of the state. • Each jurisdiction has a chief prosecutor who is appointed, or more often, elected.
Learning Outcome 2 • Provides legal representation to criminal defendants during the court process. • Responsibilities include: • Investigating the incident for which the defendant has been charged. • Communicating with the prosecutor, which includes negotiating plea bargains • Preparing the case for trial. • Submitting defense motions, including motions to suppress evidence. • Representing the defendant at trial. • Negotiating a sentence, if the client has been convicted. • Determining whether to appeal a guilty verdict
Learning Outcome 2 There are two types of defense attorneys: • Private attorneys • Public defenders • Gideon v. Wainwright (1963) • In re Gault (1967) • Argersinger v. Hamlin (1972)
CAREERPREP Public Defender Job Description: Interview low-income applicants for legal services and, if they are eligible, engage in negotiation, trial, and/or appeal of legal issues on their behalf. Exercise initiative, sound judgment, and creativity in attempting to solve the legal problems of the poor. What Kind of Training Is Required? A law degree and membership in the relevant state bar association. Commitment and dedication to the needs of low-income and elderly clients. Annual Salary Range? $44,000–$92,000 For additional information, visit: www.nlada.org/Jobs.
Learning Outcome 2 Effectiveness of Public Defenders • According to Supreme Court “a defendant may not insist on an attorney he cannot afford.” • The Strickland Standard • Two pronged test for sufficient defense: • Show that attorney’s performance was deficient • Show that deficiency more likely than not caused defendant to lose the case
Learning Outcome 2 Attorney-Client Privilege • Privilege rules require that communication between a client and lawyer be kept confidential. • Privilege does not stop at confessions. • United States v. Zolin (1989) • Lawyers can disclose communication with a client if client provides information about a crime that has yet to be committed.
Learning Outcome 3 Three basic features of the adversary system: • A neutral and passive decision-maker, either the judge or the jury • The presentation of evidence from both parties • A highly structured set of procedures that must be followed
Learning Outcome 3 • The initial hearing is the first step after arrest. • During the appearance, the defendant is • Informed of the charges • Advised of right to counsel • Told the amount of bail • Given a date for the preliminary hearing
Learning Outcome 3 In most felony cases, defendant is released only after paying bail. • Bail is provided for under the 8th amendment. • Amount of bail must be reasonable compared with the crime.
Learning Outcome 3 Factors for setting bail: • The crime • The evidence • Defendant’s record • Flight risk • General character
Learning Outcome 3 Factors for setting bail: • Uncertainty • Risk • Overcrowded jails
Learning Outcome 3 • Release on recognizance (ROR • Alternative to bail • The judge decides that defendant is not a flight risk and does not pose threat to community. • Property bonds • Paying bail with property, rather than cash. • Bail bond agent • An agent that posts bail on behalf of defendant. • Promises to pay full amount of bail if defendant does not show up to court.
Learning Outcome 3 • Preventive Detention: • Allows judges to deny bail to suspects with prior records. • The Bail Reform Act of 1984 • United States v. Salerno (1987)
Preliminary Hearing: Initial hearing where the judge determines if probable cause is present Conducted as a mini-trial Begins the process of discovery – gives defense attorney access to evidence Defense attorneys often advise defendants to waive the hearing. Learning Outcome 4
Grand Jury Group of citizens who decide whether probable cause exists Issues an indictment if it decides there is probable cause. Acts as a “shield” and “sword” Criticized for being prosecutors’ “rubber stamp” Learning Outcome 4
Learning Outcome 4 Case attrition is the decision by the prosecutor not to prosecute the defendant (nolle prosequi) • Scarce resources • Screening factors • Sufficient evidence • Case priorities • Uncooperative victims • Unreliability of victims • Defendant who is willing to testify against other offenders
List and briefly explain the different forms of plea bargaining agreements.
Learning Outcome 5 At the arraignment… • Defendant responds to charges with a plea: • Guilty • Not Guilty • Nolo Contendre (No contest)
Learning Outcome 5 Plea bargaining • Process by which the accused and prosecution work out a mutually satisfactory disposition. • Charge bargaining • Sentence bargaining • Count bargaining
Learning Outcome 5 Motivations for Plea Bargaining • The Prosecutor wants a conviction • Defense Counsel wants best outcome for the defendant • The Defendant wants some measure of control over the outcome
Source: Adapted from Bureau of Justice Statistics, State Court Sentencing of Convicted Felons, 2004 (Washington, D.C.: U.S. Department of Justice, July 2007), at www.ojp.usdoj.gov/bjs/pub/html/scscf04/tables/scs04404tab.htm.