Chapter 10 Ppt 2e

8/4/2019 Chapter 10 Ppt 2e

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Copyright © Allyn & Bacon 2007

Chapter 10

The Pretrial Process




Introduction: The Road to Trial

Once a person is arrested, be it with or without awarrant, the arrestee will be booked at thearresting officer’s police station

Booking consists of filling out paperwork as towho was arrested, the time of the arrest, andthe offense involved

Other booking events include: Inventorying personal items Photographs and fingerprints Holding cell Contact counsel, family, and others




I. THE INITIAL APPEARANCE

Initial appearance follows booking

Not all jurisdictions require an initial appearance

Must follow arrest closely in time

Initial appearance serves such purposes as: Trial for misdemeanors

Advise suspect why he or she is detained

Advise suspect of privilege against self-incrimination

Advise suspect of right to appointed counsel

Bail may possibly be set




II. THE PROBABLE CAUSE HEARING

In Gerstein v. Pugh (1975) the Supreme Courtheld that the Fourth Amendment requires aprobable cause hearing either before or promptly

after arrest Not necessary following arrests with warrants

Reason for the hearing: Provides judicial oversight concerning arrest decision




A. Procedural Issues Surrounding theHearing

The Supreme Court has declared that theprobable cause hearing is a not a “critical stage” of the criminal process

This means that the accused enjoys fewerconstitutional protections at this stage




B. Timing of the Hearing

Must take place promptly after arrest

In Riverside County v. McLaughlin (1991), the Court heldthat a probable cause hearing that takes place within 48

hours of arrest conforms with Fourth Amendmentrequirements

Acceptable reasons for delay include: Transporting

No available judge

Arresting officer tied up Unacceptable reasons for delay:

Gather additional evidence

Make suspect wait for no legitimate reason


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III. PRETRIAL RELEASE

Pretrial release occurs when an arrestee isreleased prior to his or her trial

There is no constitutional right to bail; instead,

bail cannot be excessive



A. The Pretrial Release Hearing

The Constitution does not specify whether bailshould be set in a separate hearing, butnumerous Court decisions seem to suggest a

separate hearing is warranted The Supreme Court has not clarified what

protections the accused enjoys at the pretrialrelease hearing



B. Methods of Pretrial Release

Methods of pretrial release include: Bail

Release on recognizance

Preventive detention




1. Bail

Federal and state laws permit bail for mostoffenses

Bail decision is problematic because bail is set

according to offense, not offender Bail bonds agents step in when:

Bail is high

Defendant cannot afford to post bail




2. Release on One’s OwnRecognizance

Release on recognizance (ROR) means that theaccused is released with the assumption that heor she will show up for scheduled court hearings

Reserved for defendants with minimal flight risk Federal Bail Reform Act permits release on

recognizance for certain offenders




3. Preventive Detention

The Federal Bail Reform Act of 1984 permitsdetention for up to ten days of an individual who “may flee or pose a danger to any other person

or the community” This is known as preventive detention and is

reserved for high flight risks and otherwisedangerous offenders




C. Criteria for Release

Three factors are typically considered in the judge’s bail decision: Accused’s flight risk

Accused’s level of dangerousness Accused’s financial status




1. Flight Risk

In Stack v. Boyle (1951), the Supreme Courtdeclared that the purpose of bail is to ensure theaccused’s appearance at trial

Bail should be set at an amount designed tominimize the risk of flight




2. Dangerousness

Bail can be denied to dangerous individuals

Does not violate the Eighth Amendment




3. Financial Status

Courts often take into account the accused’sfinancial status in making a bail decision

Surprisingly, bail can be denied simply because

the accused is unable to pay it (see Schilb v.Kuebel , 1971)




D. Treatment of Pretrial Detainees

In Bell v. Wolfish (1979), the Supreme Courtupheld unannounced searches of jail livingquarters, but was careful to state that when

such searches are intended to punish—instead of serve some legitimate governmental purpose,such as ensuring the safety and security of inmates—they can violated due process




IV. THE PRELIMINARY HEARING

The preliminary hearing is to be distinguishedfrom the initial appearance, the probable causehearing, and the pretrial release hearing

It almost always takes place after either of thesehearings as well as after the charging decision

Helps prevent “hasty, malicious, improvident,and oppressive prosecutions”

Resembles a criminal trial Not constitutionally required




(continued)

Whether a preliminary hearing is requiredtypically depends on a jurisdiction’s method of filing criminal charges

In grand jury indictment jurisdictions (those thatrequire that charges be filed in the form of agrand jury indictment), if the prosecutor securesan indictment within a specified time period, nopreliminary hearing is required

However, if a prosecutor proceeds byinformation, then the defendant will usually beentitled to a preliminary hearing before thecharges are filed




A. The Probable Cause Requirement

Assuming a preliminary hearing is required, theprosecutor has the burden of proving that thecase be “bound over” (i.e., handed over to) a

grand jury or go to trial The standard of proof is probable cause

Distinguish between the preliminary hearing andthe probable cause hearings as follows: Probable cause hearings dwell on the justification to

arrest

Preliminary hearing dwells on whether probable causeexists to proceed with a trial




(continued)

Why probable cause and not a higher standard? A higher standard would make trial pointless




B. Procedural Issues

Right to counsel attaches in preliminary hearingsbecause they are adversarial

Evidence procedures differ from standard trial

Exclusionary rule does not apply

Accused does not enjoy the constitutional rightto cross-examine at the preliminary hearing




V. THE ARRAIGNMENT

Once a person has been formally charged, he orshe will be arraigned

The purpose of arraignment is to formally notify

the defendant of the charge lodged against himor her

One of three pleas is entered at arraignment Guilty

Not guilty Nolo contendere

No such plea as innocent!




(continued)

Pleas of guilty and not guilty are self-explanatory A plea of nolo contendere means “I do not desire

to contest the action.”

A plea of nolo contendere resembles a guiltyplea but is different in the sense that it may notbe used against the defendant in any later civillitigation arising from the acts that gave rise tothe criminal charges

Guilty pleas require the defendant to allocute(i.e., explain)




VI. SUMMARY OF PRETRIALPROCEEDINGS

There are five potential pretrial proceedings: Initial appearance

Probable cause hearing

Pretrial release hearing Preliminary hearing

Arraignment

There is no consensus as to how many of these

are constitutionally required




VII. DISCOVERY

Discovery is the process by which both parties to a caselearn of the evidence that the opposition will present

Federal Rules of Evidence permit discovery of: Any written statements or transcriptions of oral statements

made by the defendant that are in the prosecution’s possession

The defendant’s prior criminal record

documents, photographs, tangible items, results from physicaland mental evaluations, and other forms of real evidenceconsidered “material” to the prosecution’s case

Discovery ends where strategy begins Work product is off limits




A. Discovery by the Prosecution

Discovery by the prosecution is relatively limitedbecause of the constitutional rights enjoyed bycriminal defendants

The scope of prosecutorial discovery has beenaddressed repeatedly in the courts via the Fifthand Sixth Amendments




1. Fifth Amendment Restrictions

In Williams v. Florida (1970), the Supreme Courtheld that the prosecution can “discover” alibidefenses

The defense often has to supply the prosecutionwith witness lists also One item concerning witnesses that the defense

is not required to share with the prosecutor iswhether the defendant will testify (see Brooks v.

Tennessee, 1972) Defense must disclose real and documentary

evidence




2. Sixth Amendment Restrictions

In United States v. Nobles (1975), the defenseattempted to call a private investigator to thestand whose testimony would have cast doubt

on the prosecution’s case. The trial judge ruledthat the investigator could not testify until theprosecution received portions of theinvestigator’s pretrial investigative report. TheSupreme Court upheld this decision

In Taylor v. Illinois (1988), the Court upheld atrial court’s decision to exclude testimony of adefense witness whose identity was not disclosedto the prosecution




B. Discovery by the Defense

The Fifth and Sixth Amendments do not limitdefense discovery




1. Restrictions on Discovery by theDefense

In Wardius v. Oregon (1973), the Supreme Courtdeclared that the prosecution must provide thedefense with a list of witnesses who will testify in

rebuttal to the defendant’s alibi or defense In United States v. Armstrong (1996), the

Supreme Court held that the prosecution needonly supply the defense with evidence that is

“material to the preparation of the defendant’scase”




(continued)

Shields can be discovered, not swords

Defense cannot discover certain facts if: It would afford the defendant increased opportunity to

produce perjured testimony and to fabricate evidence tomeet the State’s case

Witnesses would be subject to bribe, threat andintimidation

Disclosure by the State would afford the defendant an

unreasonable advantage at trial Disclosure is unnecessary in any event because of the

other sources of information which defendant has underexisting law




C. Nonreciprocal Discovery

With few exceptions, discovery is a two-way-street;the defense must supply the prosecution with certaininformation and vice-versa

There are some circumstances where the prosecutionis required to supply information to the defense, butnot vice-versa

Examples: The prosecution has a constitutional duty to disclose

exculpatory evidence to the defense The prosecution has a constitutional duty to preserve

evidence, but the defense does not




1. The Prosecution’s Duty to DiscloseExculpatory Evidence

As a matter of due process, the prosecution hasa constitutional duty to reveal exculpatoryevidence to the defense

The prosecution’s constitutional duty to discloseexculpatory evidence hinges on whether suchevidence would have a “reasonable probability” of changing the outcome of the case



2. The Prosecution’s Duty to PreserveEvidence

The prosecution is also constitutionally bound topreserve evidence

The prosecution cannot destroy exculpatory

evidence in an effort to gain a conviction. To doso would be a violation of due process The police must also preserve evidence Without a proper “chain of custody” (and

sometimes even with one), the defense willallege that the evidence was tampered with or “tainted” in such away that it cannot prove thedefendant’s involvement in a crime

Chapter 10 Ppt 2e

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