Bail and Pretrial Release • Bail- assure the court that the defendant will show up for trial • Bail Bonds http://www.youtube.com/watch?v=fmdl5ZocbK0 • 8th Amendment- Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted • What is excessive? • Personal recognizance- defendant must promise to show up • -take into account their personal situation, criminal record, etc. • Bail Reform Act 1984- if person is charged with a violent crime or drug offense, there is no bail. • Are there any circumstances in which you think there should be no bail?
Bail Hearing Scenarios • For each scenario decide: • 1. Set amount of bail • 2. Personal recognizance? • 3. conditional release • 4. Pretrial detention (no release)
1. • Name: Marta Garcia Age: 26 • Charge: Possession of crack cocaine • Residence: 619 30th Street, lives alone, no family or references • Employment: unemployed • Education: 11th grade • Criminal record: as juvenile, 5 arrests, mostly misdemeanors. As an adult, 2 arrests for petty larceny and a conviction for possession of dangerous drugs. Probation was successfully completed. • Comment: Arrested while leaving a train station with a large quantity of crack cocaine. Urine samples indicate the use of narcotics
2. • Name: Gloria Hardy Age: 23 • Charge: Prostitution • Residence 130 Riverside Dr., Apt 10, lives with female roommates • Employment: Call girl; earns $2,500 per week • Education: Completed high school • Criminal record: 5 arrests for prostitution, 2 convictions,. Currently on probation. • Comment: Allegedly involved in prostitution catering to wealthy clients.
3. • Name: Stanley A. Wexler Age: 42 • Charge: Possession and sale of crack cocaine • Residence: 3841 Sunset Drive; lives with wife and two children • Employment: Self-employed owner of a drug store chain; annual salary $400,000 • Education: Completed college; holds degrees in pharmacy and business administration • Criminal record: none • Comment: Arrested by his store by undercover police after attempting to sell a large quantity of heroin. Alleged to be a big-time dealer. No indication of drug usage.
4. • Name: Michael D. McKenna Age:19 • Charge: assault • Residence: 412 Pine Street, lives alone; parents are in prison • Employment: waiter, earns $400 per week • Education: 10th grade • Criminal record: 6 juvenile arrests (possession of marijuana, illegal firearms, 4 burglaries); spent 2 years in juvenile facility • Comment: Arrested after being identified as the assailant in a street fight. Alleged leader of a street gang. Police consider him dangerous. No indication of drug usage.
5. • Name: Chow Yang Age: 34 • Charge: Possession of stolen mail and forgery • Residence: 5361 Texas Street; lives with his wife and 2 children by a prior marriage • Employment: Works 30 hours per week at a service station; earns minimum wage. • Education: 8th grade • Criminal Record: 9 arrests, mostly vagrancy and drunk disorderly conduct. 2 convictions: (1) driving while intoxicated (2) forgery • Comment: arrested attempting to cash a stolen Social Security check. Has a drinking problem.
Information • Prosecutor’s information of a case determines the charge- formal criminal charge filed by prosecutor without the preliminary trial • Someone charged with a misdemeanor is not entitled to a preliminary hearing or jury review
Preliminary Hearing • Used in about ½ the states • In felony cases to determine whether there is enough evidence to require the defendant to stand trial
Grand Jury • Group of 16 to 23 people charged with determining whether there is sufficient cause to believe that a person has committed a crime and should sand trial • 5th amendment says that no one can be charged with a serious federal crime without grand jury indictment (formal accusation of a crime by grand jury)
Felony arraigmnent • Defendant is required to go to court and enter a plea • Nolo contendere
Pretrial Motions • Motion for discovery of evidence- request by defendant to examine some evidence in the possession of the prosecutor • Motion for a continuance- more time to prepare the case • Motion for change of venue- avoid community hostility, or for convenience of witnesses • Motion to suppress evidence- requests that certain evidence not be allowed to be presented at the trial
Exclusionary rule • Evidence seized by unlawful search cannot be used in trial
Plea Bargaining • 90% of criminal cases never go to trial • Really is a contract between the prosecutor and the defendant • If defendant does not come through on their end of the contract, the prosecutor can withdraw the plea-bargain offer • Is plea bargaining a good thing? Should it be allowed? • Does it offer better advantages to the prosecutor or defendant?
Scenario 1 • Marty,22 years old, is arrested and charged with burglarizing a warehouse. He has a criminal record, including a previous conviction for shoplifting and 2 arrests for auto theft. The prosecutor has evidence placing him at the scene of the crime, but no other physical evidence linking him to the crime. Because of his record, if Marty is convicted, e could face up to 10 years in prison. Marty’s defense attorney tells him that the prosecutor will reduce the charge to petty larceny, carrying a one-year suspended sentence and community service, in exchange for a guilty plea. • If you were Marty, would you plead guilty to the lesser charge?
Scenario 2 • The governor of a large state is charged with corruption by federal prosecutors. The case attracts widespread media attention. This is the first offense for the governor, who had previously been the attorney general of her state. Her defense lawyer meets with the prosecutors seeking a plea agreement. The defense wants either a reduced charge (misdemeanor), the promise of a sentence that does not require jail-time (probation), or both, in exchange for a guilty plea. • As prosecutor, what factors would you consider in making your charge? Explain.