Chapter 8. Pretrial and Trial Procedures

Transcription

1 Chapter 8 Pretrial and Trial Procedures

2 Legal Marijuana? mfja

3 Bail Cash bond or other security to ensure appearance in court Allows the release from custody of a person charged with crime Amount set by court and all or a % deposited in cash or security Can t make bail you stay in jail

4 Bail Failure to Appear means bail forfeited 8 th Amendment prohibits excessive bail Discriminatory against the indigent? Reforms have created personal recognizance (PR) bail based on ties to community

5 Bail Not punitive Can t be used to coerce or threaten defendant Stack v. Boyle Supreme Court (no absolute right to bail) Bail is a traditional right to freedom before trial & allows a defense to be prepared Prevents punishment prior to conviction Bail should reflect the amount generally set for a similar offense Eligible for bail amount should not be frivolous, unusual or beyond a person s ability to pay

6 Cumberland County Jail

7 Bail Bail hearing Felony cases Flight risk? Dangerousness? Type of crime? Prior record? Probation/Parole less than half bailed No status about two thirds bailed

8 Bail Less serious cases Field citation Station citation Jail citation Pretrial programs Majority are released on bail

9 Bail Murder = 8% Rape = 55% Robbery = 39% More serious the offense the less likely there will be bail Harnish Hearing Maine s/15/title15sec1027.html

10 Types of Bail Full cash Cash or property Deposit % paid usually 10% - FTA = full amount due Surety Bonding agent posts bail and keeps it when appearance happens. FTA = bonding agent owes full Conditional Specific conditions for release Unsecured bond No up front payment, FTA = full amount due Release on recognizance (PR bail in Maine)

11 Bail Issues Works against the poor Government must pay to detain those who can t make bail Higher % of those not making bail get longer sentences than those released on bail Innocent people may be kept in jail

12 Bail Issues Bounty Hunters Lack of training Questionable tactics Ozvs Jail conditions 63% of those given bail were convicted 78% of those not given bail were convicted Over $100/day to house them

13 Bail Reform Manhattan Bail Project (1961) Release decisions based on type of offense, family ties and employment record Resulted in PR (ROR) bail programs Bail Reform Act (1966) Deposit bail (10%), conditional release & least restrictive conditions

14 Bail Reform Bail Reform Act (1984) PR bail presumed, community safety & flight risk considered Seriousness of offense, weight of evidence, potential sentence if convicted, appearance history and prior convictions considered in determining bail

15 Preventive Detention Held with no bail Incapacitation to control future criminal behavior Is it punishment without trial? Schall v. Martin Applies this to juveniles U.S. v. Salerno Applies this to adults 2003 Court applies this to deportable aliens who commit crimes

16 Pretrial Services Gather & verify info about arrestees so info can be used in bail decision Assess likelihood of appearance and re-arrest Monitor compliance with bail conditions No criminal behavior No drugs or alcohol Curfew Search provisions No contact with victim or witnesses Intensive supervision for some defendants

17 Maine Pretrial Services MPS currently provides pre-arraignment screening and risk assessment, release and supervision, Title 30-A home release programming, reentry planning and community supervision, and case management to all Maine problem solving courts (Adult Drug Treatment Courts, Co-Occurring Disorders and Veterans' Courts, and Family Treatment Drug Courts).

18 Charging Grand Jury Established by 5 th amendment Can be independent investigating body Presentment investigatory report Determines whether criminal charges will be brought Does probable cause exist to bring charges True bill = indictment No bill = no indictment

19 Charging Critics of Grand Jury process Only prosecution presents Not open to public Rubber stamp for prosecution Exculpatory evidence does not have to be presented You can indict a ham sandwich!

20 Charging Preliminary Hearing Used to establish PC Heard by a magistrate or lower court judge Open to the public unless defendant wants it closed Prosecution puts on witnesses and defense is allowed to cross examine Judge determines if PC exists

21 Charging Preliminary Hearing PC exists bound over for trial No PC charges dismissed & defendant released Defendant can waive Guilty plea prior to hearing Try to speed the process Avoid negative publicity Waiver means prosecution does not reveal evidence before trial

22 Charging Arraignment Judge informs defendant of charges against Judge appoints counsel if not already done Ensures defendant understands the charges Plea is entered Not guilty trial date Guilty or nolo contendere sentencing date set Judge sets bail or releases the defendant

23 Plea Guilty Admission of guilt Waiver of Constitutional Rights Plea cannot be rescinded after sentencing Judge must: Ensure they understand waiver of rights Facts of case establish basis for plea & plea is voluntary Defendant informed of right to counsel during plea process Possible sentences including maximum

24 Plea Not Guilty Verbally stated by defendant or attorney Entered by court if defendant refuses to speak Trial date is set Bail may be re-considered Nolo contendere No contest Does not accept or deny responsibility but agrees to accept punishment Cannot be held against defendant in other legal proceedings (civil suit) because there is no admission of guilt

25 Plea Bargains Initial charges can be reduced OUI to DTE Number of charges can be reduced Lenient sentence recommended Charge changed to more acceptable one Unlawful Sexual Contact to Assault 90% of cases are plea bargains

26 Pleas Bargains Pros Overall cost reduced Efficiency improved More time for serious cases Defendant receives a reduced sentence Cons Dangerous criminals get light sentences Raises the risk of an innocent person being convicted instead of harsh sentence after trial Prosecutors can compel defendant to plead guilty

27 Plea Bargains Legal Issues Assistance of an attorney required Made voluntarily Promises by prosecution must be kept Defendants must uphold their side of the bargain Defendants due process right not violated if prosecutor threatens to re-indict on more serious charge if plea agreement not taken Accepting plea from person who maintains innocence is valid Some statements can be used at trial if plea negotiations fail admission in plea and testimony about innocence

28 Plea Bargains Negotiation Factors Offender prior record and age Case facts Evidence type, strength, admissibility Victim willingness to cooperate

29 Plea Bargains Other factors Prosecutor ego, publicity, political gain Sloppy police work will be exposed Money issues on both sides New lawyer wants trial experience Defendant s chance to impact the jury

30 Plea Bargains Defense Attorney Advisor to defendant Ensure they understand the process and what pleading guilty means ALL plea bargain offers must be presented to the defendant

31 Plea Bargains Judge Role is confusing Involvement indicates the defendant cannot get a fair trial, intimidates defendant and calls to question the voluntary nature of the plea Must approve all plea agreements

32 Plea Bargains Victim Impact on them must be considered Victim Rights Legislation advised of all plea offers Not necessary for them to approve of all plea offers

33 Plea Bargains Reform Oversight of process Take it or leave it method no back and forth Should it be banned?

34 ME Case instructor-pleads-guilty-in-prosecution-case

35 Pretrial Diversion Criminal charges are suspended, prior to trial, pending successful completion of a treatment program Community based and allows the defendant to avoid a criminal record, continue working, pursuing education

36 The Trial Bench Trail Judge renders verdict (if defendant waives jury trial) Jury Trial Jury renders verdict

37 Trial Bench trial heard only by judge. Constitutional right to jury trial is waived Jury trial Verdict decided by who hears the case Deferred disposition guilty finding but sentence not imposed pending no additional criminal behavior

38 Trial Legal Rights Impartial Judge 1927 Tumey v. Ohio No conflict of interest Competent at trial Must be able to understand the nature & extent of the legal proceedings 1992 Riggins v. Nevada forced treatment of a defendant does not violate due process rights in order for a trial to be held Confront witnesses 6 th amendment Accused must appear in person right can be forfeited Confrontation clause controls hearsay evidence (secondhand evidence)

39 Trial Compulsory process Right to subpoena witnesses Impartial jury Baldwin v. N.Y. (1970) right to jury trial when possible prison sentence is six months or more no matter if a felony or misdemeanor Right to Counsel Any possibility of incarceration Can opt for pro se to represent themselves Joshua Nisbit stripped of right

40 Trial Speedy trial Improve credibility of witnesses, avoid pretrial detention & publicity to hinder a fair trial No set time defines speedy Public trial Nebraska Press Assoc. v. Stuart (1976) unconstitutional for judge to prohibit press from reporting details of the crime Press can be barred from some hearings if due process is jeopardized Richmond Newspapers Inc. v. Virginia (1980) criminal trials must remain open to the press Chandler v. Florida (1981) allows electronic media coverage Change of venue

41 Trial Proof beyond a reasonable doubt Better to release a guilty person than imprison an innocent one Innocent until proven guilty Civil case = preponderance of the evidence (51%)

42 Trial Process Jury selection Opening statements Presentation of evidence Closing arguments Jury deliberations Sentencing

43 Trial Process Jury selection Venire = list of citizens who are potential jurors Maine driver s license, ID card, by request Voir dire = to tell the truth questioning of potential jurors Challenge for cause removed due to bias Peremptory challenge no reason disclosed for removal Batson v. Kentucky (1986) peremptory challenge cannot be solely on the basis of race

44 Trial Process Jury selection Should a potential juror s social media information be considered in their selection to serve on a jury?

45 Trial Process Opening Statements Prosecutor goes first and tells judge and jury about the case, case facts and how they will prove guilt Defense goes next and tells how they will be proven not guilty Can identify potential witnesses and evidence in the case No inflammatory statements

46 Trial Process Prosecution case Direct examination of witnesses first hand information of what they saw, heard, touched or smelled Only experts can provide opinion testimony Cross examination of the prosecution witnesses by the defense Re-direct by prosecution and re-cross by the defense may occur Once prosecution presents its case entirely it rests

47 Trial process Defense Directed verdict asking judge for not guilty verdict because the prosecution has not proven it s case Defense witnesses are presented if any Defendant not required to testify 5 th amendment Defense rests Government may present rebuttal evidence evidence to refute what was presented by the defense but no new evidence Surrebuttal witnesses to respond to what was brought up in the rebuttal but nothing new

48 Trial Process Closing arguments Prosecution first then the defense Can only address items presented as evidence or the applicable law Instructions to Jury/Charging the jury Elements of the offense charged Evidence needed to prove each element Burden of proof

49 Trial Process Jury deliberation and verdict Jury can be sequestered locked up during deliberations not very common Jurors released are not to view media coverage No verdict can be reached = hung jury Hung jury prosecution must decide on re-trying case Not guilty defendant released Guilty usually not released pre-sentence investigation ordered by judge and sentencing date set

50 Trial Process Jury nullification The defense suggests to the jury that they should acquit the defendant Acknowledge the defendant violated the law But the law is unjust or didn t apply to the case Make their decision based on emotions and personal preference not just the facts

51 Trial Process Sentencing Responsibility of the trial judge Pre-sentence investigation by Probation Officer Imprisonment, fine, restitution, submission of DNA sample

52 Appeal Trial Process Appellate Court to determine if lower court followed proper procedure Direct appeal everybody gets one Discretionary appeal Court decides if it will hear the appeal Writ of Habeas Corpus (You have the body) State prisoners have their conviction/sentence heard in federal court Validity of the detention give legal reasons for detention