The Courts: Prosecution/Adjudication

• Three phases in AdjudicationI. Pretrial Events

II. Trial Events

III. Post-trial events

I. Key Pre-Trial Events:

Initial Appearance

Preliminary Hearing Grand Jury Hearing

IndictmentInformation

Arraignment

Other Pretrial Hearings

Other Appearances

Initial Appearance:

• Jailed defendant brought before judicial officer (magistrate or lower-level judge)– Must occur without delay after arrest & detention

• Defendant is informed of charges

• Defendant is informed of legal rights (including Miranda & right to counsel)

• Initial decision on pretrial detention & bail

• Identification of other special conditions

Preliminary Hearing:• A “Probable Cause” hearing to provide judicial

review of decision to charge (complaint)• Usually heard in lower-level court within a few

days or few weeks after arrest & initial appear.• Prosecutor must show “probable cause” to

believe that crime occurred and accused did it– Present evidence, witnesses, & documents– Defense may challenge evidence & cross-examine– An adversary proceeding but not a full-blown trial

• Judge decides if probable cause to proceed– To “bind over” the defendant for prosecution

Preliminary Hearing (cont):• In felonies, no plea is entered at preliminary

hearing (court lacks general jurisdiction)

• BUT, if charges reduced to misdemeanor level, final disposition may occur at this point– Preliminary hearings often heard in lower courts– Strong incentive for on-the-spot plea bargaining

• Preliminary hearing may be waived by defendant, but this can be an important point to challenge the state’s case

Grand Jury:• A sitting panel of 12 to 23 citizens serving for

specific term to provide “probable cause” review on prosecutor’s decisions to prosecute

• Prosecutor presents a Bill of Indictment to the Grand Jury– Presents evidence and questions witnesses before

the grand jury (in closed proceedings)– Right to counsel does not apply in grand jury

• If probable cause is established, then grand jury returns a “true bill” of indictment – Which occurs most of the time

Arraignment:• 1st Court Appearance to enter formal plea

• Possible pleas?– Not Guilty (entered by accused or court)– Guilty (must be voluntary and with factual basis)– No Contest (nolo contendere) – Non-plea (“standing mute”)– Other pleas: NGRI

• Also arrange for Pre-trial release & counsel

• Schedules future legal proceedings

• Initial plea might later be withdrawn/changed

Other Pretrial Events = Hearings on Pretrial Motions, such as:• Dismissal of charges

• Suppression of evidence or confession

• “Discovery” of prosecutorial evidence

• Change of venue

• Change of personnel (judge, lawyer)

• Determination of competence

• Severance of cases or defendants

• Continuance

• Change in pretrial detention/bail

Three Very Important Pretrial Processes:

A. Pretrial Detention vs. Release

B. Pretrial Diversion (into alternative resolution)

C.Plea Bargaining

A. Pretrial Custodial Status

• Pretrial status alternatives:1) Liberty (pretrial release from jail)

2) Conditional liberty (conditional release)

3) Detention (pretrial incarceration)

A. Pretrial Status of Accused• What are the constitutional guarantees

regarding pretrial release?– No absolute right to bail

– Constitution merely prohibits setting “unreasonable bail”

• Bail decision is intended to address two concerns:

1) Defendant’s presence at trial

2) Protection of public safety

• Note: defendant = not convicted yet

A. Pretrial Status of Accused• Securing pretrial release – Methods:

– Release on Recognizance (ROR)– Conditional Release– Secured bail (cash or property)

• By offender• By others

• Preventive Detention – denial of any bail– Legally more controversial

• Applied selectively• Applied to unconvicted persons

– Not necessary in most cases (?)

A. Pretrial Status of Accused• Conditions of Pretrial Detention

– Jail = all-purpose warehouse for:• Unadjudicated defendants pre-trial• Convicted misdemeanants serving time• Convicted Felons under appeals• Other disorderly persons

– Note: “jail” different from “prison”

• Personal impacts of Detention– Discomforts & Dangers of jail– Loss of social contact & resources– Loss of employment & income– “Punishment by imprisonment” even if acquitted

A. Pretrial Status of Accused

• Effects on case development?– Case preparation is hindered

– Impact on jury perceptions

– Motivation to bargain & plead guilty

• Correlation with case outcomes?– Greater likelihood of guilty pleas

– Greater likelihood of conviction

– Greater likelihood of incarceration

B. Pretrial Diversion:

A. What is it? What does it involve?• Suspending or dropping formal prosecution in

exchange for offender doing a treatment alternative

• If treatment is satisfactorily completed then no additional prosecution occurs

• Prosecution may be reinstated if offender fails to fulfill alternative treatment requirement

• Note difference between:

a) Informal diversions (discretionary acts)

b) Formal diversions (formalized programs)

B.Why is Pretrial Diversion used?• Basic idea = some offenders/cases are

better resolved through non-CJS procedures without invoking the criminal law & punitive sanction

– Avoid negative effects of criminal label

– Some cases need treatment not punishment (effectiveness)

– Resources saved for serious cases

– Use threat of prosecution as “motivator”

Felony Cases Adjudicated(100)

Dismissed(25)

Guilty Pleas(65)

Trials(3)

Diverted/deferred(7)

Guilty(2)

Acquittal(1)

Convicted/Guilty(67)

Probation(19)

Prison(21)

Jail(27)

(Felony Cases in Urban Counties, 2002)

C. Plea Bargaining

A. What is it? What does it involve?

• Negotiated disposition where defendant does not contest guilt (usually guilty plea) in exchange for concessions by prosecutor

• May involve more than merely pleading guilty:– Full accounting of criminal offense and responsibility– Provide additional information about other crimes or

offenders (incl. testify in other cases)– Non-contest of specific facts or issues– Waiver of some constitutional rights

Plea Bargaining

A. What kinds of prosecutorial concessions?

– Charge reduction (in level or number)

– Sentence reduction (recommendations)• Length of sentence• Conditions of confinement

– Reduction in severity of criminal label

– Stipulation of facts of the case

– Not invoke extra considerations

– Charge or Sentence reductions for co-defendants

C. Plea BargainingB. Where and when does it occur?

• Mostly in pre-trial stage– In court room or in prosecutor’s office– May occur at jail– Usually initiated by defense counsel

• Does not occur during actual court proceedings in pretrial or “on-the-side conferences”

• No specific or universal protocol

• An American invention?

Plea BargainingC. The advantages of plea bargaining• Reduction in costs (in time and effort)

– Less time taken– Less trouble and cost

– Management of large caseloads• Reduction in uncertainty

– It guarantees the outcome– It provides some degree of control

• Individualization of cases• Allows offender to acknowledge guilt

Plea BargainingD. What legal issues are involved?• PB is neither sanctioned nor prohibited in

constitution or statutory law (but case law allows it)

• Guilty plea forfeits certain constitutional rights

• Guilty plea may impact appeals & civil cases

• Bargains are mostly off-the-record & implicit

• May punish defendants who insist on trial– Longer sentences for trial convictions

Fig. 9-6, p. 230

Plea BargainingE. Why is it controversial?• It encourages defendants to forfeit rights

• Allows dangerous offenders off too easily

• May induce innocent persons to plead guilty

• Off-the-record nature encourages misconduct

• Lack of oversight short-circuits due process

• Encourages a “Culture of Bargaining”– Leads participants to view each other negatively– Leads to cynical view of the justice system– Encourages over-charging by prosecutors

Plea BargainingF. The Regulation of Plea Bargaining

• Abolition of plea bargaining?– Alaska

– California

• Regulation and standardization– Pretrial conferences

– Prosecutorial rules & policies

– Statutory limitations (sentencing; charging)

I. The Future of Plea Bargaining?• Note the ubiquity of the practice

– In the U.S.

– Spread to other countries and legal systems

• Likelihood any large scale changes in plea bargaining?

– Unlikely to disappear or greatly diminish

– May transform into other procedures that look different but have the same outcomes (the Whack-a-Mole problem due to discretion)

Felony Cases Adjudicated(100)

Dismissed(25)

Guilty Pleas(65)

Trials(3)

Diverted/deferred(7)

Guilty(2)

Acquittal(1)

Convicted/Guilty(67)

Probation(19)

Prison(21)

Jail(27)

(Felony Cases in Urban Counties, 2002)

The Trial Process:

• If accused pleads “not guilty”, guilt must be decided at trial

• Trial is set up an adversary process or legal battle – Contested according to specific rules

(“due process”)

– Attempt to equalize the battle between state & defendant

– Truth will emerge from the contest3 of 3

The Legal Content of “Due Process”:Presumption of InnocenceStrict standard of proof required Freedom against self-incriminationRight to speedy & public trialRight to legal counselRight to confront witnesses & evidenceRight to compel witnesses & evidenceRight to unbiased trial by juryRequirement of competenceRight to appeal convictionFreedom from double-jeopardy

3 of 3

The Trial Process:• Two forms of trials:– Jury Trial

This means two extra steps in trial process

1)Jury selection

2)Jury deliberation– Bench Trial

Right to a trial by jury is waived Only a judge hears the case and renders

a verdict3 of 3

Types of Trials: How Often? Which types?

Rates of Plea Bargaining

4 of 6

The Jury System• Based on the presumption that justice is

ensured when community judges guilt

• Jury trials mostly unique to the Common Law system (and to the United States)

• About 80% of all jury trials occurring in the world take place in the U.S.

• Yet jury trials in the U.S. seldom occur

• Jury trial = example of “justice defined by a rare event”

1 of 3

How are juries selected– The master jury list is made up of all eligible

jurors in a community (drawn from some existing list – e.g.,registered voters)

– The first step = summon the venire (or “jury pool”) people who are on jury duty

– Next step is = selection of the “jury panel” for case (from whom actual jury is picked)

– Voir Dire – questioning of prospective jurors from the panel to select the “sitting jurors” for that trial

Jury Selection (cont.)• Based on the Voir Dire, the attorneys

will ask to exclude some potential jurors– Challenges for cause – exclusion based on

specific reasons related to bias

– Peremptory Challenges – exclusion without specifying any specific reasons

• Peremptory challenges may not be used to systematically by gender or race

Jury Deliberations:• Jury is first given specific instructions to

follow in reaching a verdict in the case

• The jury is isolated while deliberating

• Jury may be sequestered if deliberations take longer or will be influenced by outside factors

• Jury’s task of reaching a unanimity compels an active deliberation & persuasion process

• Jury may “nullify the law” when it feels justice is compromised by literal application

• Failure to reach unanimity hung jury mistrial