The courts prosecution adjudication
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The Courts: Prosecution/Adjudication. Three phases in Adjudication Pretrial Events Trial Events Post-trial events. Initial Appearance. Other Appearances. I. Key Pre-Trial Events:. Grand Jury Hearing. Preliminary Hearing. Information. Indictment. Arraignment. Other Pretrial Hearings.

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The courts prosecution adjudication
The Courts: Prosecution/Adjudication

  • Three phases in Adjudication

    • Pretrial Events

    • Trial Events

    • Post-trial events

I key pre trial events

Initial Appearance

Other Appearances

I. Key Pre-Trial Events:

Grand Jury Hearing

Preliminary Hearing




Other Pretrial Hearings

Initial appearance
Initial Appearance:

  • Jailed defendant brought before judicial officer (magistrate or lower-level judge)

    • Must occur without delay after arrest & detention

  • Defendant is informed of charges

  • Defendant is informed of legal rights (including Miranda & right to counsel)

  • Initial decision on pretrial detention & bail

  • Identification of other special conditions

Preliminary hearing
Preliminary Hearing:

  • A “Probable Cause” hearing to provide judicial review of decision to charge (complaint)

  • Usually heard in lower-level court within a few days or few weeks after arrest & initial appear.

  • 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

    • To “bind over” the defendant for prosecution

Preliminary hearing cont
Preliminary Hearing (cont):

  • In felonies, no plea is entered at preliminary hearing (court lacks general jurisdiction)

  • BUT, if charges reduced to misdemeanor level, final disposition may occur at this point

    • Preliminary hearings often heard in lower courts

    • Strong incentive for on-the-spot plea bargaining

  • Preliminary hearing may be waived by defendant, but this can be an important point to challenge the state’s case

Grand jury
Grand Jury:

  • A sitting panel of 12 to 23 citizens serving for specific term to provide “probable cause” review on prosecutor’s decisions to prosecute

  • 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

  • If probable cause is established, then grand jury returns a “true bill” of indictment

    • Which occurs most of the time


  • 1st Court Appearance to enter formal plea

  • 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

  • Also arrange for Pre-trial release & counsel

  • Schedules future legal proceedings

  • Initial plea might later be withdrawn/changed

Other pretrial events hearings on pretrial motions such as
Other Pretrial Events = Hearings on Pretrial Motions, such as:

  • 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

  • Change in pretrial detention/bail

Three very important pretrial processes
Three Very Important Pretrial Processes: as:

  • Pretrial Detention vs. Release

  • Pretrial Diversion (into alternative resolution)

  • Plea Bargaining

A pretrial custodial status
A. Pretrial Custodial Status as:

  • Pretrial status alternatives:

    • Liberty (pretrial release from jail)

    • Conditional liberty (conditional release)

    • Detention (pretrial incarceration)

A pretrial status of accused
A. Pretrial Status of Accused as:

  • What are the constitutional guarantees regarding pretrial release?

    • No absolute right to bail

    • Constitution merely prohibits setting “unreasonable bail”

  • Bail decision is intended to address two concerns:

    • Defendant’s presence at trial

    • Protection of public safety

  • Note: defendant = not convicted yet

A pretrial status of accused1
A. Pretrial Status of Accused as:

  • Securing pretrial release – Methods:

    • Release on Recognizance (ROR)

    • Conditional Release

    • Secured bail (cash or property)

      • By offender

      • By others

  • Preventive Detention – denial of any bail

    • Legally more controversial

      • Applied selectively

      • Applied to unconvicted persons

    • Not necessary in most cases (?)

A pretrial status of accused2
A. Pretrial Status of Accused as:

  • Conditions of Pretrial Detention

    • Jail = all-purpose warehouse for:

      • Unadjudicated defendants pre-trial

      • Convicted misdemeanants serving time

      • Convicted Felons under appeals

      • Other disorderly persons

    • Note: “jail” different from “prison”

  • Personal impacts of Detention

    • Discomforts & Dangers of jail

    • Loss of social contact & resources

    • Loss of employment & income

    • “Punishment by imprisonment” even if acquitted

A pretrial status of accused3
A. Pretrial Status of Accused as:

  • Effects on case development?

    • Case preparation is hindered

    • Impact on jury perceptions

    • Motivation to bargain & plead guilty

  • Correlation with case outcomes?

    • Greater likelihood of guilty pleas

    • Greater likelihood of conviction

    • Greater likelihood of incarceration

B pretrial diversion

B. Pretrial Diversion as::

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 (discretionary acts)

Formal diversions (formalized programs)

B why is pretrial diversion used

B.Why is Pretrial Diversion used? as:

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 cases need treatment not punishment (effectiveness)

Resources saved for serious cases

Use threat of prosecution as “motivator”

The courts prosecution adjudication

Felony Cases Adjudicated as:




Guilty Pleas


















(Felony Cases in Urban Counties, 2002)

C plea bargaining

C. Plea Bargaining as:

What is it? What does it involve?

Negotiated disposition where defendant does not contest guilt (usually guilty plea) in exchange for concessions by prosecutor

May involve more than merely pleading guilty:

Full accounting of criminal offense and 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

Plea bargaining

Plea Bargaining as:

Whatkinds 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

Not invoke extra considerations

Charge or Sentence reductions for co-defendants

C plea bargaining1

C. Plea Bargaining as:

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

Does not occur during actual court proceedings in pretrial or “on-the-side conferences”

No specific or universal protocol

An American invention?

Plea bargaining1

Plea Bargaining as:

The advantages of plea bargaining

Reduction in costs (in time and effort)

Less time taken

Less trouble and cost

Management of large caseloads

Reduction in uncertainty

It guarantees the outcome

It provides some degree of control

Individualization of cases

Allows offender to acknowledge guilt

Plea bargaining2

Plea Bargaining as:

What legal issues are involved?

PB is neither sanctioned nor prohibited in constitution or statutory law (but case law allows it)

Guilty plea forfeits certain constitutional rights

Guilty plea may impact appeals & civil cases

Bargains are mostly off-the-record & implicit

May punish defendants who insist on trial

Longer sentences for trial convictions

Plea bargaining3

Plea Bargaining as:

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 Bargaining”

Leads participants to view each other negatively

Leads to cynical view of the justice system

Encourages over-charging by prosecutors

Plea bargaining4

Plea Bargaining as:

The Regulation of Plea Bargaining

Abolition of plea bargaining?



Regulation and standardization

Pretrial conferences

Prosecutorial rules & policies

Statutory limitations (sentencing; charging)

I the future of plea bargaining

I. The Future of Plea Bargaining? as:

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 (the Whack-a-Mole problem due to discretion)

The courts prosecution adjudication

Felony Cases Adjudicated as:




Guilty Pleas


















(Felony Cases in Urban Counties, 2002)

The trial process
The Trial Process: as:

If accused pleads “not guilty”, guilt must be decided at trial

Trial is set up an adversary process or legal battle

Contested according to specific rules (“due process”)

Attempt to equalize the battle between state & defendant

Truth will emerge from the contest

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The legal content of due process
The Legal Content of “Due Process”: as:

Presumption of Innocence

Strict standard of proof required

Freedom against self-incrimination

Right to speedy & public trial

Right to legal counsel

Right to confront witnesses & evidence

Right to compel witnesses & evidence

Right to unbiased trial by jury

Requirement of competence

Right to appeal conviction

Freedom from double-jeopardy

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The trial process1
The Trial Process: as:

Two forms of trials:

Jury Trial

This means two extra steps in trial process

Jury selection

Jury deliberation

Bench Trial

Right to a trial by jury is waived

Only a judge hears the case and renders a verdict

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Types of trials how often which types
Types of Trials: How Often? Which types? as:

Rates of Plea Bargaining

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The jury system
The Jury System as:

Based on the presumption that justice is ensured when community judges guilt

Jury trials mostly unique to the Common Law system (and to the United States)

About 80% of all jury trials occurring in the world take place in the U.S.

Yet jury trials in the U.S. seldom occur

Jury trial = example of “justice defined by a rare event”

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How are juries selected
How are juries selected as:

  • The master jury listis made up of all eligible jurors in a community (drawn from some existing list – e.g.,registered voters)

  • The first step = summon the venire (or “jury pool”) people who are on jury duty

  • Next step is = selection of the “jury panel” for case (from whom actual jury is picked)

  • Voir Dire – questioning of prospective jurors from the panel to select the “sitting jurors” for that trial

Jury selection cont
Jury Selection (cont.) as:

  • Based on the Voir Dire, the attorneys will ask to exclude some potential jurors

    • Challenges for cause – exclusion based on specific reasons related to bias

    • Peremptory Challenges – exclusion without specifying any specific reasons

  • Peremptory challenges may not be used to systematically by gender or race

Jury deliberations
Jury Deliberations: as:

  • Jury is first given specific instructions to follow in reaching a verdict in the case

  • The jury is isolated while deliberating

  • Jury may be sequestered if deliberations take longer or will be influenced by outside factors

  • Jury’s task of reaching a unanimity compels an active deliberation & persuasion process

  • Jury may “nullify the law” when it feels justice is compromised by literal application

  • Failure to reach unanimity  hung jury  mistrial