THEME FIVE

PRE-TRIAL AND TRIAL PROCEDURES

Key Reading
Chapter 10 of Siegel, L.L. & Worrall, J.J. (2014).
Introduction to Criminal Justice. Wadsworth, Cengage
Learning: Australia
Learning objectives:
• Discuss the procedures following arrest
• Critically discuss bail
• Discuss and distinguish the difference between the
indictment process and the information process
• Identify and discuss those who play a role in plea
bargaining
• Discuss the legal rights during trial
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 PROCEDURES FOLLOWING ARREST

Complaint – formal written

Accused taken to police station
document identifying the
criminal charge, date and
place where the crime
Detained occurred and the
circumstances of the arrest

Initial hearing

Plea
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 BAIL
 In addition to the above steps the defendant is
also considered for bail
 Bail is a form or security, usually a sum of
money, that is put up or exchanged to secure the
release of an arrested person before the trail
begins
 Failure to appear results in the forfeiting of the
bail
 Whether a defendant can be expected to appear
at the next stage of the criminal proceedings is a
key issue Prevents
innocent person
 Key ingredient of a fair and equitable from spending
adjudication process Enables people time behind bars
to prepare a
defense 3
 THE LEGAL RIGHT TO BAIL
 Statute of Westminster – set out the offenses
that were bailable
 Judiciary Act of 1789 – “upon all arrests in
criminal cases, bail shall be admitted, except
where punishment may be by death, in which
cases it shall not be admitted but by the
supreme or a circuit court, or by a justice of
the supreme court, or a judge of a district
court, who shall exercise their discretion
therein.”
 Eight Amendment of the U.S Constitution
 1951 case of Stack v Boyle
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 MAKING BAIL
 More serious charges less likely to be granted
bail
 Less serious charges more likely to be
granted bail
 Bail typically considered at a court hearing
 Crime type, flight risk, and dangerousness
 Victim input
 Prior record

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 ALTERNATIVE BAIL RELEASE
MECHANISMS
 Police field citation release
 Police station house citation release
 Police/pretrail jail citation release
 Pretrial/court direct release by pretrial bail
program
 Police/court bail schedule

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 TYPES OF BAIL

 Full cash bail

 Deposit bail
 Surety bail
 Conditional bail
 Unsecured bond
 Release on recognizance

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 PRETRIAL DETENTION
 The criminal defendant who is not eligible
for bail or release on recognizance is subject
to pretrial detention
 Also includes people who cannot afford to
post bail

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 BAIL REFORM
 Views of bail
 Unacceptable
 Discriminatory
 Government pays to detain offenders

 Reforms
 Release on recognizance
 Preventive detection

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 RELEASE ON RECOGNIZANCE
 Allow defendants to be released without any
money
 Popular in 1960s - resulted in bail reforms that
culminated in the enactment of the Federal
Bail Reform Act of 1966
 The Bail Reform Act of 1984
 The seriousness of the charged offence, the
weight of the evidence, the sentence that may
be imposed upon conviction, court appearance
history, and prior convictions are likely to
influence the release decisions of the federal
court
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 PREVENTIVE DETENTION
 Tighten bail restrictions on the most dangerous offenders
 Fear dangerous criminals may reoffend
 Avertable recidivists – a person whose crime would have
been prevented if he had not given discretionary release
and instead had been kept behind bars
 Preventive detention – deny bail to a particular individual
 Bail Reform Act of 1984 – allows judges to order
preventive detention if they determine “that no condition
or combination of conditions will reasonably assure that
appearance of the person as requires and the safety of any
other person and the community.”

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 PRETRAIL SERVICES
 Specialised pretrail services help courts deal
with determining which defendants can
safely be released on bail
 Provides critical services including:
 Gathering and verifying information about
arrestees
 Assessing each arrestee’s likelihood of failure to
appear
 Providing supervision for defendants

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 CHARGING THE DEFENDANT
 The charge is selected by the prosecutor,
who takes into consideration the facts of the
case, strength of the evidence, availability of
witnesses...
 The process varies

Grand jury Preliminary hearing

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THE INDICTMENT PROCESS: THE
GRAND JURY
 Magna Carta (1215)
 Grand jury brought to the American colonies by
early settlers and later incorporated into the
Fifth Amendment
 “no person shall be held to answer for a
capital, or otherwise infamous crime, unless on
a presentment or indictment of a grand jury.”
 Grand jury is diminishing
 Most allow the prosecutor the option of calling
a grand jury or proceeding with a preliminary
hearing

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 Grand jury today has two roles

 Role one – act as an independent

investigating body
 Examines the possibility of criminal activity
 Directed towards general criminal conduct
 After investigation grand jury issues a report
called a presentment containing its findings and
a recommendation of indictment
 Indictment – a written accusation charging a
person with a crime

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 Role two – accusatory in nature
 Determines whether an accusation by the state
justifies a trial
 Relies on the testimony of witnesses
 Decides whether probable cause exists for
prosecution
 True bill or no bill is passed

 The defense attorney, defendant, and

general public not allowed to attend the
grand jury proceedings

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 THE INFORMATION PROCESS:
THE PRELIMINARY HEARING
 Purpose – is to require the prosecutor to
present the case so that the judge can
determine whether the defendant should be
held to answer the charge against him/her in
court
 Purpose is the same as grand jury however
the procedures differ

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THE PRELIMINARY PROCEDURE
 Conducted before a magistrate or lower court
judge
 Open to the public unless the defendant
requests otherwise
 Present at the hearing are the prosecuting
attorney, the defendant, and the defendant’s
counsel
 Prosecution present evidence to the judge
 Defense counsel has the right to cross-examine
witnesses to the challenge evidence
 After the hearing the judge decides whether
there is sufficient probable cause
 Information – a formal charging document
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 WAIVING THE PRELIMINARY
HEARING
 Defendant’s right to waive the proceeding
 Three reasons a defendant may want to
waiver
 He has already decided to plea guilty
 He wants to speed up the criminal process
 He hopes to avoid the negative publicity that
might result from the hearing

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 ARRAIGNMENT
 Takes place before the court after an
indictment or information is filed
 Judge informs the defendant of the charges
and appoints counsel if needed
 Judge to make sure the accused clearly
understands the charges
 After charges are read and explained, the
defendant is asked to enter a plea
 A trial date is set if a not guilty plea or not
guilty by reason of insanity is entered

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 Not guiltyNolo
Guilty contendere

The pleas

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 Guilty
 Functions as a surrender of the entire array of
constitutional rights
 For guilty plea to be valid, it must be both
understood and voluntary
 Judge must follow certain procedures when
accepting a plea of guilty
 Judge must clearly state to the defendant the
constitutional guarantees
 Judge must believe that the facts of the case established
is basis for the plea and that the plea is made voluntarily
 Defendant must be informed of the right to counsel
 Defendant must be informed of the possible sentencing
outcomes
 After guilt plea has been entered, a sentence date
is arranged
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 Not guilty
 Entered in two ways
 It is orally stated by the defendant or the defense
counsel or
 It is entered for the defendant by the court when the
defendant stands mute before the bench
 Once a plea of not guilty is recorded, a trial date
is set
 Nolo contendere
 Essentiallya plea of guilty
 Same consequences as a guilty plea
 One exception – it may not be held against the
defendant as proof in a subsequent civil matter
 Accepted at the discretion of the trial court
 Must be voluntarily

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 PLEA BARGAINING

 Essential component of the administration of

justice
 Benefits both the prosecution, which is
assured of a conviction, and the defendant,
who is rewarded with a lenient sentence

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THE NATURE OF PLEA BARGAIN
 Is the exchange of prosecutorial and judicial
concessions for pleas of guilt
 Made between the prosecutor and the defence
attorney in four ways:
 The initial charges may be reduced to those of a lesser
offense, thus automatically reducing the sentence
imposed
 In cases in which many counts are charges, the
prosecutor may reduce the number of counts
 The prosecutor may promise to recommend a lenient
sentence, such as probation
 When the charge imposed has a negative label attached,
the prosecutor may alter the charge to a more socially
accepted one
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What are some of the pros and cons of plea bargaining?

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 PROS AND CONS OF PLEA
BARGAINING
 Benefits both the state and the defendant
 Cost
 Administrative Efficiency
 More time to serious matters
 Reduced sentence
 Resources
 Plea bargaining should eliminated
 Waive constitutional rights
 Dangerous offenders to receive lenient sentences
 Danger of innocent person convicted
 Induce or compel defendants to plea bargaining
 Innocent may admit guilt
 Guilty-plea culture

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 LEGAL ISSUES IN PLEA
BARGAINING
 Effective assistance of counsel
 Voluntarily and without pressure
 Promises kept
 Keep the bargain
 Due process rights
 Accepting guilty plea
 Statements may be used under some
circumstances

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THE ROLE OF THE PROSECUTOR
IN PLEA BARGAINING
 Broad discretion
 Initiate
a criminal prosecution
 Determine the nature and number of the criminal charges
 Choosing whether to plea bargain a case and
 Under what conditions
 Plea bargaining is one of the major tools the prosecutor uses
 In making a plea bargaining decision
 Seriousness of the crime
 The attitude of the victim
 The police report of the incident
 Applicable sentencing provisions
 Defendant’s prior record and age
 Type, strength, and admissibility of evidence
 Attitude of complainant

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 THE ROLE OF THE DEFENCE
COUNSEL IN PLEA BARGAINING
 No court should accept a guilty plea unless
the defendant has been properly advised by
counsel and the court has determined that
the plea is voluntary and has a factual basis
 The defense attorney is responsible for
making certain that the accused understands
the nature of the plea bargaining process and
the guilty plea
 Keep defendant informed of developments
 Ethically and constitutionally required to
communicate
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 THE ROLE OF THE JUDGE IN
PLEA BARGAINING
 Creates the impression that defendants cannot
receive a fair trial
 Lessens the ability of the judge to make
objective determination
 Inconsistent with the theory behind the use of
presentence investigation reports
 May induce innocent defendants to plea guilty
 Thus judges limit their role

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 THE VICTIM AND PLEA
BARGAINING
 Do not play a role in the plea negotiations
 Statutes do not require that the prosecutor
defer to victim’s wishes
 No legal consequence
 Prosecutors do confer with crime victims

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 PLEA BARGAINING REFORM
 Safeguards
 Judges questions the defendant about the facts
of the guilty plea
 Defence counsel is present and can advise the
defendant
 Prosecutor and the defence attorney opening
discuss the plea
 Full information about the defendant and the
offenses is made available at this stage of the
process

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 PRETRIAL DIVERSION
 Placing offenders into noncriminal diversion programs
before their formal trial or conviction
 Late 1960s and early 1970s
 Formal criminal proceedings suspended while the person
participates in the program
 Helps offenders avoid stigma
 Prosecutor play central role
 Natureof crime, Special characteristics of the offender, First
time offender, Cooperation, Impact of program, Impact on
community, Opinion of victim
 Independent agencies and department’s internal
structure

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 THE TRIAL
 Public hearing
 Symbolises the administration of objective
and impartial justice

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 LEGAL RIGHTS DURING TRIAL
 Right to an impartial judge
 Every criminal defendant enjoys the right to a
trial by an impartial judge
 Right to be competent at trial
 Criminal
defendant must be considered mentally
competent
 Right to confront witnesses
 Trialscannot be conducted without the accused
being afforded the right to appear in person
 Confrontation clause

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 The right to compulsory process
 Compel the production of witnesses via subpoena
 Rights to an impartial jury
 Defendant has the right to choose whether the
trial will be before a judge or jury
 Right to counsel at trial
 Statecourts must provide counsel at trial to
indigent defendants

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 Right to a speedy trial
 improve the credibility of the trial by having
witnesses available for testimony
 Help criminal defendants avoid lengthy pre-trial
detention
 Avoid extensive pre-trial publicity and
questionable conduct of public officials that may
influence the defendant’s right to a fair trial
 Avoid any delay that could affect the
defendant’s ability to defend himself/herself
against charges

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 The right to a public trial
 alltrials must be open to the public
 Can prevent a defendant from getting a fair trial
 Release of premature evidence by the
prosecutor, extensive and critical reporting by
the news media... All prejudice a defendant’s
case

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 The right to be convicted by proof beyond a
reasonable doubt
 Prime instrument for reducing the risk of
convictions based on factual errors
 It is better to release a guilty person than to
convict someone who is innocent
 Forces the prosecution to overcome this
presumption with the highest standard of proof
 Requires proof beyond a reasonable doubt for
each of the offense

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 STAGES OF THE JURY TRIAL
 Stage 1 – Jury selection
 Stage 2 – opening statements
 Stage 3 – presentation of evidence
 Stage 4 – closing arguments
 Stage 5 – jury deliberations
 Stage 6 – sentencing

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Avenues to challenge procedures

Writ of habeas
Appeals corpus

A request for an appellate Seeks to determine the validity

court to examine a lower of a detention by asking the
court’s decision in order to court to release the person or
determine whether proper give legal reasons for his
procedures were followed incarceration

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