chapter seven

CHAPTER SEVENTRIALS AND TRIAL PROCEDURES

Trials command public attention Spectacular crimes Notorious parties Sympathetic victims

Visible representative of the criminal justice process

Few cases make it to trial

Introduction

Arrest

Police Lockup

Bail Set

Initial Appearance

Preliminary Hearing

Grand Jury

Arraignment

Pretrial Motions

Pretrial Procedures

Seizure or forcible restraint

Taking or keeping a person by legal authority in response to a criminal charge

Arrest with a warrant Felony and misdemeanor arrests

Arrest without a warrant Felony arrests if committed in the officer’s presence, or upon probable

cause Misdemeanor arrests if offense is committed in the officer’s presence,

or if allowed by the state for other specific offenses

Arrest

Short-term detention

Processing

Book suspect into jail

Investigations

Custodial interrogations

Suspect Placed in Police Lockup

Process of securing release prior to next court appearance

8th Amendment prohibits excessive bail

Bail set by judge or magistrate

Preventive detention Presents a significant flight risk Presents a significant public safety threat Bail Reform Act of 1984 Issues with preventive detention

Methods of posting bail Unsecured bond Cash deposit Property bonds Bail bondsman Percentage deposit

Bail

Processing of felonies and serious misdemeanors

Judge considers existence of probable cause for arrest

Charges are reviewed

Attorney representation addressed

Takes place 24-48 hours after arrest

Initial Appearance

Felony and misdemeanor cases

Right may be waived by defendant

Defendant informed of charges

Discussion of right to counsel

Discussion of bail reduction

State begins presentation of evidence to show probable cause

Preliminary Hearing

Guaranteed by 5th Amendment (federal felonies)

Private aspect Hearings are closed Defendant, media, and public cannot attend Members are sworn to lifelong secrecy

Size variation

Prosecuting attorney advises grand jury

Unanimous decisions are not needed

May issue true bill or no true bill

Grand Jury

Judge may address counsel and bail

Defendant is informed of charges

Defendant informed of Due Process Rights

Defendant enters a plea Guilty Not guilty Nolo contendere Guilty but mentally ill Not guilty by reason of insanity Alford plea

Arraignment

Advantages Eliminates uncertainty of trial Lesser sentence Removes time and stress of trial

Issues Places prosecutor in a position of power Defendant is at the mercy of prosecutor and defense attorney Judge plays a minor role

Factors driving plea bargaining Caseload Allows all parties to get something they want

Plea Bargaining

Work History

Education

Family

Prior Criminal History

Makes a recommendation of incarceration or probation

Presentence Investigation Report

Dismissal of charges

Severance of Charges

Change of Venue

Suppression of Evidence

Discovery

Continuance

Many others

Pretrial Motions

Right to jury trial is guaranteed by the 6th Amendment

The defendant may waive this right

In a bench trial, the judge determines the outcome

Most felonies are resolved through jury trials

Jury and Bench Trials

Small lists are assembled from the master list

Venire goes through jury selection

Potential jurors are questioned (voir dire)

Biased jurors are eliminated Unlimited strikes for cause Limited number of peremptory challenges

Art or science of jury selection

Case may be won or lost in jury selection

Jury Selection

Prosecuting attorney goes first

Each side gives an overview of their case

Explain the theory of the case

Opening Arguments

Prosecution calls witnesses first

Initial questioning (direct examination) done by the side calling the witness

Opposing side then questions the witness (cross-examination)

Attorneys may continue questioning until both sides have concluded

Types of witnesses Eyewitnesses (lay witnesses) Expert Witnesses

Witness Examination

The court “must decide whether the proposed expert testimony meets the requirements of relevance and reliability.”

Party seeking to admit the evidence “must show that the expert’s underlying reasoning or methodology, and its application to the facts, are scientifically valid.”

Factors for scientific validity (Daubert v. Merrell Dow Pharmaceuticals)

Whether the theory can be or has been tested Whether the theory has been subjected to peer review or publication, the theory’s known or

potential rate of error, and whether there are standards that control its operation The degree to which the relevant scientific community has accepted the theory

Use of Scientific Analysis

Defense gives closing arguments first

Addresses inconsistencies or flaws in the opposition’s case

Judge reads instructions (charge) to the jury Explanation of the state’s obligation Guilt beyond a reasonable doubt Instructions about witness testimony Special instructions

Closing Arguments and Jury Instructions

Determination about sequestering the jury

Jury elects a foreperson

Preliminary vote

Address and discuss evidence

Final vote

Judge announces the verdict

Jurors may be polled

Judge sets sentencing date and orders pre-sentence investigation report

Jury Deliberations and Verdict

Theories of sentencing Retribution Deterrence Incapacitation Rehabilitation Restorative Justice

Performed by jury in capital cases, judge in other cases

Judge determines concurrent or consecutive sentences

Judge may suspend some sentences

Sentencing

Misdemeanors Appeal to courts of general trial jurisdiction De novo (new) trial

Felonies Appeal to courts of intermediate appeals or courts of last resort

Right of appeal limited to court examination of trial record for error

Few cases are appealed

Appeals are based upon errors of law

Appeals