unit 6: pre-trial procedures

Unit 6: Pre-Trial Procedures

PS-LCRP-10. Students will explore the roles of each participant in the pretrial process.

a. Identify each participant in the process.b. Distinguish between each pretrial stage. c. Identify rationales for how prosecutors choose criminal charges. d. Determine appropriate constitutional challenges for given pretrial scenarios.e. Debate the plea bargaining process.

EQ: What happens between the time a suspect is arrested and the trial begins? 1

Research

Sources

Position Paper

• 3 benefits• 3 disadvantages• Alternatives

• 1 academic• 2 more solid sources

• Addressed to Governor• Changes needed or

support current system • 3 paragraphs

supporting your opinion

Plea Bargaining Debate Monday


Prosecutor

Role of the Prosecutor

• Prior to Arrest – often in federal system, and occasionally locally, investigators and prosecutors collaborate–Assist with obtaining warrants–Provide legal advise on how

investigation is conducted EQ: What happens between the time a suspect is arrested and the trial begins? 4


• After Arrest - Review police reports to determine:– Evidence available to establish each

element of crime– Violations of Fourth or Fifth Amendment– Credibility of potential witnesses– Likelihood witnesses will be available for

court appearances



• Other factors considered– Attitude of public toward this type of

case– Severity of offense versus other cases

pending– Likelihood of winning the case– Decide how many charges to file


Decision to Charge

• Prosecutor must consider many factors when deciding what charges to file

Such as:• Evidence to establish each

element of the crime


Decision to Charge • Are there violations of suspect's

rights that will make some of the evidence inadmissible?

• Are the victim and eye witnesses credible?

• What evidence will be excluded because of the Hearsay Rule? other problems with evidence?


Decision to Charge

• Jurisdiction of court –Geographical–Subject matter

• Venue• Statute of limitations


Decision to Charge • Does Double Jeopardy bar filing

any of the charges?• What degree of the crime

should be charged?• If more than one person

committed the crime, should the suspects be charged jointly or separately?


Decision to Charge

• Will filling additional charges facilitate plea bargaining?

• Should a longer sentence be sought because of the defendant's prior convictions?


Participants for the State

Witnesses

CID & Investigators

for DA

Prosecutor or DA

Participants for the Defense

Expert Witnesses or Psychologists

Private Investigators

Defense Attorney or

Public Defender

Participants for the Court

Clerk & Court

Reporter

BailiffJudge

Pretrial Stages

ArraignmentArraignment is normally the first

court appearance after the charges are filed


ArraignmentProcedures at the arraignment:• Defendant has the right to be

present in person• Defendant will be given a copy

of the complaint• Judge will advise defendant of

right to counsel


ArraignmentProcedures at the arraignment:• Screening for public defender • Continuance may be granted if

defendant needs time to hire an attorney


Interview with Client

• Establish Rapport – show interest• Agree on Fee – most upfront!• Advise all rights, warn not to talk• Trust is priority• Treat respectfully – walk in their shoes

– Explain attorney-client privilege • Attempt to accommodate needs• Explain role of attorney and CJS overall


Interview with Client

• Explain timeline• Get extensive bio – in book• Warn of snitches• Counsel clients emotional needs• Amsterdam Card – rights


Getting Story Straight

• Start by letting them tell whole story• Try to use clients perspective• Get details and clear up timeline• TAKE NOTES!• Reiterate the Attorney-Client

Privilege• Avoid Cross-Exam. - unless blatant

liesEQ: What happens between the time a suspect is arrested and the trial begins? 21

Post-Arraignment Actions

• Get client’s story• Establish decision-making authority• Arrange Translator – non family, no

ties to government


Probable Cause Hearing Purpose• Probable cause hearing is

conducted to determine whether there is probable cause to hold the suspect in custody pending trial

• Hearing must be held within 48 hours of arrest except in an emergency such as a natural disaster which closes the courts.


Probable Cause Hearing

• Sworn testimony is presented (witnesses, affidavits or police reports signed under oath) to establish probable cause to detain defendant.


Probable Cause Hearing • If judge determines that there is

probable cause the defendant may be held in custody pending trial.

• The defendant must be released if the judge does not find probable cause has been established.


Preliminary Hearing Purpose• Judge hears testimony in open court

to determine if a prima facie case has been established for each felony charged

• Preliminary hearing is usually held within two weeks after arraignment unless defense agrees to continuance


Preliminary Hearing What Prosecutor Does1. Presents evidence to establish

prima facie case for each element of every felony in the complaint

2. Calls witnesses and conducts direct examination

3. Cross examines witnesses called by defense


Grand Jury • Fifth Amendment right to indictment by

grand jury in cases involving capital offenses and infamous crimes– Only applies to criminal trials in

federal courts• Indictment is not required for cases

involving only misdemeanors• States are free to enact laws

authorizing use of preliminary hearing instead of indictment


Grand Jury • Prosecutor who takes case to

grand jury seeks an Indictment. • Grand jury investigates case on its

own and returns a Presentment. • Grand juries may also hear a case

at the direction of a judge.


Grand Jury • Pool from which grand jurors are

drawn are usually same as trial jury

• Grand jurors usually serve a fixed term

• Grand jury is usually larger than trial jury; historically it had 23 members


Grand Jury • Not all members are required to be

present when every case is presented

• State law sets number of votes required to return indictment

• TRUE BILL - sufficient evidence to merit prosecution

• NO BILL - charges rejected and may be filed again


Pre-Trial Release

Bail • Not granted in capital cases• Traditionally granted if

defendant is considered likely to appear in court as scheduled


Pre-Trial Release


1• Cash bail

2• Non-cash bail

3• Bail bond

4• Personal bond

5• Own Recognizance Release

6• Electronic Monitoring

7• House Arrest

Diversion • Programs divert defendants

from the criminal justice system• Most diversion programs are

designed for first offenders• Diversion usually focuses on

counseling programs• Program are designed for

specific types of offenders EQ: What happens between the time a suspect is arrested and the trial begins? 34

Diversion • Attending counseling sessions is

mandatory• Completion of diversion program

usually entitles defendant to dismissal of the charges and/or expunging arrest record

• Prosecutor may take case to trial if court rules defendant failed the diversion program


Pre-Stages Review

1st AppearancePreliminary Hearing OR Grand Jury

Diversion? Alternate

Court?

Arraignment Discovery Pre-Trial Motions

Prosecution Case Evaluation

Strengths/WeaknessPlea Bargain

(possible at each stage)Pre-Trial

Conference

Potential Challenges

Pretrial Stages

Double Jeopardy

• Needs official court records indicating defendant has prior conviction or acquittal on crime charged or greater/lesser included offense.


Lack of Subject Matter Jurisdiction

• Must show state law indicating the court where the pleadings were filed does not have authority to handle this type of case.


Statute of Limitations

Compare date complaint states crime occurred with date charges were filed to determine if statute of limitations for specific crimes expired before case was filed.


Lack of Speedy Trial • Must show delay after indictment or

filing charges was detrimental to defendant's case.

Factors considered: • length of delay• defendant has asserted right to speedy

trial• no valid reason for delay• defendant's case was prejudiced by

delay EQ: What happens between the time a suspect is arrested and the trial begins? 41

Failure to State a Cause of Action

• Challenges wording of pleadings: claims no crime was committed even if defendant committed the acts alleged.


Challenges to Evidence by Defense


Exclusionary Rule and Fruit of the Poison Tree Doctrine

• Evidence derived from illegally obtained evidence is not admissible at trial

• Time and intervening circumstances may result in the taint of the initial illegal act being removed.


Exceptions to the Exclusionary Rule

• “Good faith” exception• Inevitable Discovery• Independent Source• “Public Safety” exception


Challenge to Validity of WarrantFalse information used to obtain warrantEvidence Considered: Whether officers

knowingly included lies in the affidavit used to obtain a warrant. Reckless disregard for the truth is treated the same as knowingly including lies.

Legal Issue: Do the facts that remain, after excluding items officers knew or should have known were untrue, establish probable cause?


Challenge to Validity of WarrantSearch warrant executed in inappropriate

mannerEvidence Considered: Compare search that

was authorized in the warrant and the search actually conducted. Also consider: had warrant expired? are there other grounds, such as Plain View Doctrine, for the officer's actions?

Legal Issue: Did officers restrict search to places authorized in the warrant and items the warrant stated they could seize? Is the seizure justified on other legal grounds?


Other Evidence Challenges

Searches: Evidence Considered: What the

officers did and why the officers conduct the search.

Legal Issue: Is there an exception to the Fourth Amendment which justifies the officer's actions? Prosecution bears burden of proof.



Arrest:Evidence Considered: All facts

available to officer at time arrest was made.

Legal Issue: Did the officer have probable cause to make the arrest? Was an arrest warrant required?



Confessions:Evidence Considered: All facts

surrounding the interrogation.Legal Issues: Were Miranda

warnings required? Were Miranda warnings given correctly? Did suspect waive Miranda rights?


Discovery

Defendant's Right to Discovery

• Brady material: Due Process mandates that the prosecution must disclose evidence that might be used to exonerate the defendant.

• Prosecutor is assumed to know everything that the police have in their files


Defendant's Right to Discovery

Local rules may give defense the right to pre-trial notice:

• Witnesses prosecution plans to call • Statements prosecution witnesses

have made to the police or prosecutor • Copies of statements that defendant

made to the police


Prosecution's Right to Discovery

Fifth Amendment privilege against self-incrimination bars prosecution from obtaining incriminating statements by defendant that defense has on file


Prosecution's Right to Discovery

Local rules may give prosecution the right to pre-trial notice:

• Defendant intends to claim alibi• Names of witnesses defense intends to call• Statements defense witnesses, except

defendant, have made• Items of physical evidence defense plans to

introduce and lab tests performed on the items


Pre-Trial Conference


Conference between judge and all attorneys in case frequently held in judge's chambers usually held a few days before the trial is scheduled to begin

Topics Consdiered:


Pre-Trial Conference • Is there a plea bargain agreement?• How long is the trial expected to last?• Is any special equipment needed?• Is an interpreter needed?• Will there be a jury?



• How many prospective jurors are needed?

• Will questionnaires be used to screen potential jurors?

• Will the jury be sequestered?


Pre-Trial Conference • Will the jury be transported to crime

scene for a view?• How many alternate jurors will be

needed?• Do special accommodations need to

be made for media coverage of the case?


Unit 6: Pre-Trial Procedures

PS-LCRP-10. Students will explore the roles of each participant in the pretrial process.

a. Identify each participant in the process.b. Distinguish between each pretrial stage. c. Identify rationales for how prosecutors choose criminal charges. d. Determine appropriate constitutional challenges for given pretrial scenarios.e. Debate the plea bargaining process.


unit 6: pre-trial procedures

Documents

crime eq

file eq

court appearances eq

pretrial process

additional charges

criminal charges

evidence available

pretrial scenarios