I. Key Pre-Trial Events:

1. I. Key Pre-Trial Events:

2. Initial Appearance: Jailed defendant brought before judicial officer (usually lower-level judge) Must occur without delay after arrest & detention Defendant informed of charges Defendant informed of legal rights (including Miranda & right to counsel) Initial decision on pretrial detention & bail In low-level charges, may be plead at this stage, receive summary trial, and be sentenced.

3. Preliminary Hearing: A �Probable Cause� hearing to provide judicial review of decision to charge Usually heard in lower-level court within a few days or few weeks after arrest 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 Defendant is �bound over� for prosecution

4. Preliminary Hearing (cont): In felonies, no plea is entered at this point (because court generally lacks jurisdiction) At this point: Bail decision may be reconsidered Arrangements for legal representation assessed Other pretrial motions may be made to suppress evidence, prior statements, or confessions However, if charges reduced to misdemeanor level, final disposition may occur at this point Preliminary hearing may be waived by defendant

5. Grand Jury: 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 Usually 12 to 23 jurors serving for specific term If probably cause is established, then grand jury returns a �true bill� of indictment Which occurs most of the time Indictment by grand jury may be waived by defendant

6. Arraignment: Court Appearance to formally enter plea to the charges listed in the Information or Indictment 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; Alford Plea Arrange for Pre-trial release & legal counsel Determine competence to stand trial Schedules future legal proceedings Can Pleas be withdrawn?

7. Hearings on Pretrial Motions: 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

8. II. Important Pretrial Processes Pretrial Detention/Release Pretrial Diversion Plea Bargaining

9. A. Pretrial Status of Accused Pretrial status alternatives: Liberty (pretrial release) Conditional liberty (conditional release) Detention (pretrial incarceration) Securing pretrial release Conditions of Pretrial Detention Impacts of Pretrial Detention

10. A. Pretrial Status of Accused Securing pretrial release � Constitutional Guarantees No absolute right to bail or pretrial release Merely prohibition of �unreasonable bail� Intended to address two concerns: Appearance of accused at trial Protection of public safety

11. A. Pretrial Status of Accused Securing pretrial release � Methods: Release on Recognizance (ROR) Conditional Release Unsecured Bail Deposit Bail Secured bail (cash or property) By offender By others Surety Bail (bail bonding) Preventive Detention � denial of bail

12. A. Pretrial Status of Accused Conditions of Pretrial Detention Jail = all-purpose warehouse for: Unadjudicated defendants pre-trial Convicted misdemeanants serving time Convicted Felons under appeals Other disorderly persons Other conditions of confinement? Lengths of Pretrial Detention These vary widely by offense type & location

13. A. Pretrial Status of Accused Personal impacts of Detention Discomforts & Dangers of jail Loss of contact with family & others Loss of employment & income �Time served� even if acquitted Effects on case development Case preparation is hindered Impact on jury Motivation to bargain & plead guilty

14. A. Pretrial Status of Accused Effects on case outcome? Greater likelihood of guilty pleas Greater likelihood of conviction Greater likelihood of incarceration

15. B. Pretrial Diversion: What is it? What does it involve? 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: Informal diversions (individual discretionary acts) Formal diversions (explicit & organized programs)

16. 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 problems need treatment rather than punishment (effectiveness) CJ resources are better saved for more serious cases (efficiency) Use threat of prosecution as �motivator�

17. C. History of Pretrial Diversion Informal diversion has long been used Formal diversion programs flowered in the 1970s Impact of research on �labeling� & coercive effects of criminal processing Impact of �due process� revolution Prominence of Rehabilitation Model Emphasis on �community corrections� Used for a variety of problem behaviors Gradual loss of confidence in strategy

18. C. History of Pretrial Diversion (cont.) Gradual loss of confidence in strategy Lack of measurable effectiveness Loss of CJ control over diverted cases Due process concerns about Renewed interest with development of special �Drug Courts� in mid-1980s Failure of strict drug enforcement strategy Desire to maintain intensive War on Drugs Desire to keep treatment within the CJS and to mix punishment with treatment

19. C. History of Pretrial Diversion (cont.) Development of special �Drug Courts� Used a form of Internal Diversion in which diversion program is kept within the CJ System and administered by the court Rather than diverted out of the CJ system to an external treatment provider Mixed punishment and law enforcement with treatment (�tough love� framework) Extension to other specialized courts (with judicial + treatment functions)

20. D. Why is Pretrial Diversion Controversial? Questions about its actual effectiveness In reducing criminal recidivism In saving CJ resources Questions about its �net widening� effect Coerce defendants into treatment who would have not have been convicted Recast CJ control into �treatment� terms Concern about relaxing of �due process� May have unforeseen negative effects

21. Pretrial Diversion: How many cases are involved? (see the next slide) Future of pretrial diversion?

23. C. Plea Bargaining What is it? What does it involve? Negotiated disposition where defendant does not contest guilt (usually guilty plea) in exchange for some concessions by prosecutor (and court) May involve more than guilty plea by accused Full accounting of criminal offense acknowledgment of 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

24. Plea Bargaining What is it? What does it involve? (continued) What kinds of prosecutorial concessions? Charge reduction (in level or number) Sentence reduction (recommendations) Length of sentence Conditions of confinement Reduction in severity of criminal label Stipulation of facts of the case Agreement to not invoke extra considerations (e.g., 3 strikes-you�re-out provisions; RICO; gang-related) Charge or Sentence reductions for co-defendants

25. C. Plea Bargaining 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 It can occur after the trial has started (up to the moment when sentence is announced) Negotiation does not occur during actual court proceedings, but before or after proceedings, or in on-the-side conferences No specific or universal protocol An American invention?

26. Plea Bargaining Who is involved in plea bargaining? Defendant Defense counsel Prosecutor Judge? Others? Victim Family of offender

27. Plea Bargaining What are the advantages? Reduction in costs (in time and effort) Less time taken Less trouble and cost Reduction in uncertainty It guarantees the outcome Provides some degree of control over an unpredictable situation Allows some individualization of cases

28. Plea Bargaining What legal issues are involved? PB is neither sanctioned nor prohibited in constitution or statutory law (but case law allows it) A guilty plea forfeits certain constitutional rights (e.g., to trial, to confront witnesses, no self-incrimination, full due process) Guilty plea may impact appeals & civil cases Bargains are mostly off-the-record & implicit May punish defendants who insist on trial

29. Plea Bargaining: Legal Issues Sentencing Outcomes for Guilty Pleas Insert fig 9.6Insert fig 9.6

30. Plea Bargaining Relevant legal issues (cont.) Because it short-circuits due process, court must assure that guilty plea is: Knowing (based on full and honest disclosure; made with benefit of counsel) Voluntary ( not coerced or intimidated) Fully consistent with the facts of the case And that terms of the bargain are kept

31. Plea Bargaining Why is it controversial? 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 plea bargaining� Leads participants to view each other negatively Leads to cynical view of the justice system Encourages over-charging by prosecutors

32. Plea Bargaining So what are its good points? Makes administration of justice more efficient Make the most of scarce resources Manage large caseloads & avoid backlogs Gain some justice in weak cases Prosecutor can devote more resources to difficult and serious cases Allows individualization of justice Allows some control over uncertain outcomes Allows offender to formally acknowledge guilt

33. Plea Bargaining The Regulation of Plea Bargaining Abolition of plea bargaining? Alaska El Paso, Tx California Regulation and standardization Pretrial conferences Prosecutorial rules & policies Statutory limitations (sentencing; charging)

34. 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 (because discretion is endemic in justice system)