Criminal Procedure: Pretrial Arrest: Upon arrest police will read you your MIRANDA RIGHTS “You have the right to remain silent…..” Based on your 5 th Amendment.

Criminal Procedure: PretrialArrest:

Upon arrest police will read you your MIRANDA RIGHTS

“You have the right to remain silent…..”

Based on your 5th Amendment rights to be free from “self-incrimination”

MOST DEFENSE ATTORNEYS SAY: DON’T TALK TO THE POLICE!!!!!

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Procedures Following Arrest Booking:

Police again advise you of your rights and have you sign a document stating that you are aware of them

Fingerprinting, mug shots ,and personal data collected

Possible participation in a lineup Police will try to get a statement Information is turned over to

prosecutor

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County Prosecutor

Lawyer for the Government against you Decides:

Does the case have merit? Is there enough evidence to convict based

on complaint filed?

Options: Downgrade the charges: easier to convictSend to Municipal Court for lesser offense

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You are now the DEFENDANT Complaint: Formal charge issued by law enforcement agent or a citizen against you claiming that you committed a certain crime. Superior Court: Serious offenses Municipal Court: Lesser offenses “Disorderly persons”

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Arrest and detention are SERIOUS infringements on

your liberties 5TH Amendment: You cannot be denied

“life, liberty, or property, without DUE PROCESS of law”

DUE PROCESS guarantees that if the government is going to take away your liberty they must follow proper criminal procedures

Thus authorities must have probable cause that you are guilty of a crime.

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First Appearance / Initial Appearance

You meet the judge Told again what you are being charged

with Informed of your rights Legal Counsel offered Bail Set for Serious offenses

Misdemeanor offensesROR: Released on your own Recognizance - You promise to show up to your trial

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Preliminary Hearing

Judge determines if there is enough evidence to continue the process (PROBABLE CAUSE)

This function is also served by GRAND JURIES

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arraignment Requirements for proof of probable cause: Indictment from grand jury File information at preliminary hearing Formal arraignment; plead to charge:

Guilty Not guilty Nolo contendere (No contest) Not saying

anything; Is like a guilty plea but helps can’t be used against you in a civil case later

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PTI: PRE TRIAL INTERVENTION Used primarily for first time non-

violent offenders Goal is rehabilitation Charges are suspended, if

defendant stays out of trouble for a certain amount of time, charges are dropped

Defendant often required to attend counseling and submit to drug testing

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Bail

Bail is money or other security provided to the court to ensure the appearance of the defendant at every subsequent stage of the criminal justice process

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Probable Cause

Government’s responsibility to prove probable cause

Grand jury and preliminary hearing are procedures which evaluate evidence against the accused

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History of Grand Jury

Developed from English common law Serves as a check on an arbitrary

government Incorporated into the U.S.

Constitution in the 5th Amendment Use of grand jury is declining: In 1961, more than half of the states

required grand jury indictments

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Role of the Grand Jury

Acts as an independent investigating body

After investigation is completed a presentment is issued

Other major role is accusatory in nature Decides whether probable cause exists: Finds probable cause, a true bill is

affirmed No probable cause, a no bill is passed

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Typical Grand Jury

16 to 23 members Chosen at random from the community Must be at least 18 years old, U.S.

citizen, a resident of the jurisdiction, and sufficient English-speaking skills

Grand jury meetings: At the request of the prosecution Hearings are closed and secret Accused not allowed to attend unless

called to testify

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Criticisms of Grand Jury

Costly operation A rubber stamp for the prosecution Delays the criminal justice process Suggested reforms: Witnesses should have attorneys present Prosecutors should present evidence for

the defendant as well as incriminating evidence

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Plea bargaining

Estimated that more than 90% of all convictions result form negotiated pleas

Concessions offered by the prosecution:

Reduction of initial charges Reduce number of charges Recommend a lenient sentence

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Plea bargaining cont.

Arguments for plea bargaining: Reduced costs Improved efficiency Concentrate on serious cases Defendant avoids pretrial detention and delay

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Arguments Against Plea Bargaining

Encourages defendants to waive constitutional rights

Results in lesser sentences and sentencing disparity

Possibility of coercing innocent to plead guilty

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Factors Affecting Prosecutorial Decision Making

The offense Prior record Defendant’s age Type, strength and admissibility of

evidence

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The Nature of Plea Bargaining

Wide discrepancy in the use of pleas

Much less likely to receive a prison sentence after plea when compared to jury trial outcomes

Bench trials and plea rates are much the same

Those who plea also receive shorter prison terms

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Plea bargaining cont.

Probability of incarceration much the same for pleas for trial

60% plead to most serious charge

Plea less likely to result in a prison term

Punishment is certain but less severe

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Role of the Prosecutor in Plea Bargaining Few limits on discretion to plea bargain

Pleas frequently sought after in weak cases

Concessions determined on a case-by-case basis

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Defense Counsel’s Role in Plea Bargaining Acts in an advisory role in

negotiations Makes certain accused

understands nature of plea bargaining process and the guilty plea

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