C H A P T E R 1 0 Pretrial Activities and the Criminal Trial O U T L I N E Introduction Pretrial Activities The Criminal Trial Stages of a Criminal Trial Improving the Adjudication Process L E A R N I N G O B J E C T I V E S After reading this chapter, students should be able to Describe the pretrial steps and activities. State the purpose of the criminal trial. Describe the criminal trial process. Describe three approaches to improving the adjudication process. Chapter Overview A fundamental concept of criminal justice in the United States is that the criminal justice system is an adversarial system. Justice is achieved when a talented adversary is able to convince a judge or jury that his or her perspective is the correct one. Chapter 10 focuses on two issues central to understanding this adversarial system. First, the text describes the pretrial activities. Second, the text describes the trial process. Chapter 10 describes the early steps of the long and arduous court process. Usually within 48 hours after arrest, a suspect appears before a judge for his or her first appearance. During this stage, the legality of the arrest is assessed, the defendant is informed of the charges, and the decision on whether to release or detain pending trial is made. Judges have several bail options as well as a number of alternatives. Some alternative bail programs include release on recognizance (ROR), property bonds, deposit bail, conditional release, third-party custody, unsecured bond, and signature bond. Suspects then experience either a grand jury hearing or a preliminary hearing. There are significant differences between these two types of hearings, but the purpose of both is to filter cases out of the system if there is insufficient evidence to pursue the charges. Finally, the defendant is again informed of the charges and asked to make a plea at the arraignment stage. Defendants will plead either guilty, not guilty, or nolo contendere (no contest). This chapter also provides a discussion of plea bargaining. Think of plea bargaining as a negotiation process that involves the defendant, the defense counsel, and the prosecutor. Defendants frequently waive their right to a trial and plead guilty, hoping to get something in return, such as a reduced sentence. Prosecutors and defense attorneys also benefit from the plea-bargaining process because it helps keep cases moving through the court system. Chapter 10 concludes with a discussion of the trial process. Once initiated, the first step in the trial process is jury selection. Attorneys, and in some jurisdictions the judge, select members of the jury through the voir dire process. Potential jurors can be dismissed by using challenges for cause and peremptory
challenges. After the jury is selected, the prosecution and defense will make opening statements. After these statements are completed, the prosecution and the defense present various types of evidence, such as real, circumstantial, and direct. Closing arguments provide a review and a summation of the evidence. The judge then charges the jury and provides instructions on deliberation. Finally, the jury deliberates on the evidence presented during the trial and returns to the court with a verdict. Outline I. Introduction II. Pretrial Activities A. The First Appearance First Appearance An appearance before a magistrate during which the legality of a defendant s arrest is initially assessed and the defendant is informed of the charges on which he or she is being held. At this stage in the criminal justice process, bail may be set or pretrial release arranged. McNabb v. U.S.: This case is responsible for creating the notion that a suspect should have his or her first appearance within 48 hours of arrest. A suspect does not have a right to present evidence but is entitled to representation by counsel at this stage. Explain the significance of the first appearance before a magistrate as an opportunity for release via the setting of bail, release on recognizance, and so on. Tell students that a high percentage of all criminal defendants are released from custody before trial. 1. Pretrial Release Release versus pretrial detention Pretrial Release The release of an accused person from custody, for all or part of the time before or during prosecution, or his or her promise to appear in court when required. 2. Bail Most defendants are released after posting bail. Bail Bond A document guaranteeing the appearance of a defendant in court as required and recording the pledge of money or property to be paid to the court if he or she does not appear, which is signed by the person to be released and anyone else acting on his or her behalf. Bail helps ensure reappearance of the accused, and it prevents people who have not been convicted from suffering imprisonment. 3. Alternatives to Bail Describe the various alternatives available for the setting of bail: release on recognizance, property bond, deposit bail, conditional release, third-party custody, unsecured bond, and signature bond. Release on Recognizance (ROR) Release on Recognizance (ROR) The pretrial release of a criminal defendant on his or her written promise to appear in court as required. No cash or property bond is required. Property Bond Property Bond The setting of bail in the form of land, houses, stocks, or other tangible property. In the event that the defendant absconds prior to trial, the bond becomes the property of the court. With deposit bail, the court acts as the bail bondsman in some jurisdictions. Conditional Release
Conditional Release The release by executive decision of a prisoner from a federal or state correctional facility who has not served his or her full sentence and whose freedom is contingent on obeying specified rules of behavior. Release with conditions, such as participation in a drug-treatment program Third-Party Custody Release to another individual or agency Unsecured Bonds Release with no monetary deposit Signature Bonds Release upon the defendant s written promise to appear Limits the right to bail for some types of offenders 4. Pretrial Release and Public Safety Danger Law A law intended to prevent the pretrial release of criminal defendants judged to represent a danger to others in the community. U.S. v. Hazzard: This case held that Congress was justified in providing for denial of bail to offenders who represent a danger to the community. Discuss the recent increase in the number of danger laws, which are designed to prevent the pretrial release of criminal defendants judged to represent a danger to others. B. The Grand Jury The federal government and about half the states use a grand jury as part of the pretrial process. Grand juries serve primarily as filters. Grand jury hearings are secret; the defendant does not have the opportunity to appear before the grand jury and has no right to cross-examine witnesses. Explain the role of the grand jury in returning criminal indictments. Comment on the fact that not all states use the grand jury system, although all make use of some form of indictment or information. C. The Preliminary Hearing If a state does not use a grand jury, then it will use a preliminary hearing. The purpose is to challenge the legal basis of the detention. Competent to Stand Trial A finding by a court that the defendant has sufficient present ability to consult with his or her attorney with a reasonable degree of rational understanding and that the defendant has a rational as well as factual understanding of the proceedings against him or her. Sell v. U.S.: The Court placed strict limits on the government s power to forcibly medicate some mentally ill defendants to make them competent to stand trial. D. Arraignment and the Plea Once indicted, the accused will be formally arraigned. Here the defendant is again informed of the charges against him or her and is asked to make a plea (for example, guilty, not guilty, or nolo contendere). Plea In criminal proceedings, the defendant s formal answer in court to the charge contained in a complaint, information, or indictment that he or she is guilty of the offense charged, is not guilty of the offense charged, or does not contest the charge. Nolo Contendere A plea of no contest. A no-contest plea is used when the defendant does not wish to contest conviction. Because the plea does not admit guilt, however, it cannot provide the basis for later civil suits that might follow a criminal conviction.
E. Plea Bargaining Plea Bargaining The process of negotiating an agreement among the defendant, the prosecutor, and the court as to an appropriate plea and associated sentence in a given case. Plea bargaining circumvents the trial process and dramatically reduces the time required for the resolution of a criminal case. III. The Criminal Trial Rules of Evidence Henderson v. Morgan: The U.S. Supreme Court held that a defendant can withdraw a plea after it has been given. Describe plea bargaining by highlighting how the process serves the interests of the defendant, the prosecutor, and the court. Ask students to identify those interests, and ask whether plea bargaining might circumvent other community interests. Court rules that govern the admissibility of evidence at criminal hearings and trials. A. Nature and Purpose of the Criminal Trial Adversarial System The two-sided structure under which American criminal trial courts operate. The adversarial system pits the prosecution against the defense. In theory, justice is done when the most effective adversary is able to convince the judge or jury that his or her perspective on the case is the correct one. Explain that although the criminal trial depends on an adversarial process, it is not a free-forall. Explain that the adversarial model relies on well-defined rules of procedure that have evolved through years of common practice and that are often codified. IV. Stages of a Criminal Trial A. Trial Initiation: The Speedy Trial Act Speedy Trial Act A 1974 federal law requiring that proceedings against a defendant in a federal criminal case begin within a specified period of time, such as 70 working days after indictment. Some states also have speedy trial requirements. Cite the federal Speedy Trial Act as typical of the attempt by states and the federal government to comply with the Sixth Amendment s requirement of a fast trial. Explain that the intent of the Sixth Amendment was to prevent innocent people from languishing in jail before trial. Discuss the important cases that deal with trial delay. Klopfer v. North Carolina: The Court held that the right to a speedy trial is a fundamental guarantee of the Constitution. Barker v. Wingo: The right to a speedy trial can be violated even in cases where the defendant does not object to the delays. Strunk v. U.S.: Denial of a speedy trial could result in the dismissal of all charges. U.S. v. Taylor: When the defendant willfully delays the trial, such delays do not apply to the 70-day period (of the Speedy Trial Act) to bring a case to trial. Fex v. Michigan: The 180-day period begins when the prisoner s disposition has been delivered to the court. Doggett v. U.S.: A delay, resulting from governmental negligence, of nearly nine years violated speedy trial provisions. B. Jury Selection The court recognizes three types of challenges. Challenge to the array is a challenge of the entire jury pool. Challenge for cause argues that a juror cannot be fair or impartial. Peremptory challenge is a challenge to a juror without giving a reason.
Peremptory Challenge The right to challenge a potential juror without disclosing the reason for the challenge. Prosecutors and defense attorneys routinely use peremptory challenges to eliminate from juries individuals who, although they express no obvious bias, are thought to be capable of swaying the jury in an undesirable direction. Jury Selection The process whereby, according to law and precedent, members of a trial jury are chosen. The key to the jury selection process is voir dire. Through the voir dire process, both the prosecution and defense attorneys question potential jurors. Witherspoon v. Illinois: A person opposed to the death penalty can be excluded from a jury when a death sentence is a possibility. Mu Min v. Virginia: Pretrial publicity of a case in the news media influences potential jury members. But if a prospective juror can be shown to be unbiased by the publicity, he or she can serve. Scientific Jury Selection The use of correlational techniques from the social sciences to gauge the likelihood that potential jurors will vote for conviction or for acquittal. Sequestered Jury A jury that is isolated from the public during the course of a trial and throughout the deliberation process. 1. Jury Selection and Race Peremptory Challenges and Race Batson v. Kentucky: The use of peremptory challenges for purposeful discrimination is a violation of the defendant s right to an impartial jury. Powers v. Ohio: The Supreme Court ruled in favor of a white defendant who claimed his rights were violated by excluding blacks through the use of peremptory challenges. Edmonson v. Leesville Concrete Co.: Peremptory challenges in civil trial are not acceptable if based on race. Georgia v. McCollum: Defendants cannot use their peremptory challenges to exclude jurors based on race. Campbell v. Louisiana: The court held that a white criminal defendant can raise equal protection and due process objections to discrimination against blacks in the selection of grand jurors. C. Opening Statements Opening Statement The initial statement of the prosecutor or the defense attorney, made in a court of law to a judge or jury, describing the facts that he or she intends to present during trial to prove the case. The purpose of opening statements is to advise the jury of what the attorneys intend to prove and to describe how proof will be offered. D. The Presentation of Evidence 1. Types of Evidence Evidence Anything useful to a judge or jury in deciding the facts of a case. Evidence may take the form of witness testimony, written documents, videotapes, magnetic media, photographs, physical objects, and so on. Direct Evidence Direct Evidence Evidence that, if believed, directly proves a fact. Eyewitness testimony and videotaped documentation account for the majority of all direct evidence heard in the criminal courtroom. Circumstantial Evidence
Circumstantial Evidence Evidence that requires interpretation or that requires a judge or jury to reach a conclusion based on what the evidence indicates. From the proximity of the defendant to a smoking gun, for example, the jury might conclude that he or she pulled the trigger. Describe the various kinds of evidence that may be used in court. Explain the difference between direct evidence and circumstantial evidence by underscoring how the latter requires the judge or jury to reach conclusions, while the former needs no interpretation for its significance to be understood. Real Evidence Real Evidence Evidence that consists of physical material or traces of physical activity. 2. The Evaluation of Evidence Michigan v. Lucas: The U.S. Supreme Court ruled that the Sixth Amendment right to confront witnesses may not extend to evidence of a prior sexual relationship between a rape victim and criminal defendant. Probative Value The degree to which a particular item of evidence is useful in, and relevant to, providing something important in a trial. Testimony 3. The Testimony of Witnesses Oral evidence offered by a sworn witness on the witness stand during a criminal trial. Defendants do not have to take the stand, and if they do not, prosecutors and judges cannot comment on this fact (Griffin v. California). Direct examination Cross-examination Refer to the types of testimony: direct, cross, redirect. Explain that prosecutors and defense attorneys can continue asking questions as long as necessary to get all the information from a witness. Perjury The intentional making of a false statement as part of the testimony by a sworn witness in a judicial proceeding on a matter relevant to the case at hand. 4. Children as Witnesses Coy v. Iowa: The Court decided that a courtroom screen used to shield a child witness from the defendant violated the confrontation clause of the Sixth Amendment. Maryland v. Craig: In this case, however, the Court held that allowing a child to testify using closed-circuit television does not violate the confrontation clause. White v. Illinois: This case allowed testimony by a medical provider and a babysitter, who repeated what a child had said, to be heard. Highlight the problems of children as witnesses, including the fact that children may not tell the truth, may confuse fact with fiction, may not appreciate the seriousness of the trial process, and may fear a direct confrontation with the defendant. 5. The Hearsay Rule Hearsay Something that is not based on the personal knowledge of a witness. Witnesses who testify about something they have heard, for example, are offering hearsay by repeating information about a matter of which they have no direct knowledge. Describe hearsay as anything not based on the personal knowledge of a courtroom witness. Explain the hearsay rule as a constraint against accepting evidence based on hearsay. Observe that some exceptions to the hearsay rule do exist, such as allowing a witness to repeat the final statements of a dying person. Hearsay Rule The long-standing precedent that hearsay cannot be used in American courtrooms. Rather than accepting testimony based on hearsay, the court will ask that the person who was the original source of
the hearsay information be brought in to be questioned and cross-examined. Exceptions to the hearsay rule may occur when the person with direct knowledge is dead or is otherwise unable to testify. Exceptions to the hearsay rule Dying declaration Spontaneous statement Out-of-court statements E. Closing Arguments Closing Argument An oral summation of a case presented to a judge, or to a judge and jury, by the prosecution or by the defense in a criminal trial. F. The Judge s Charge to the Jury Reasonable Doubt In legal proceedings, an actual and substantial doubt arising from the evidence, from the facts or circumstances shown by the evidence, or from the lack of evidence. Also, the state of a case such that, after the comparison and consideration of all the evidence, jurors cannot say the feel an abiding conviction of the truth of the charge. Reasonable Doubt Standard The standard of proof necessary for conviction in criminal trials. G. Jury Deliberations and the Verdict Verdict The decision of the jury in a jury trial or of a judicial officer in a nonjury trial. ( 1. Problems with the Jury System Problems include emotions being confused with fact, confusion over legal technicalities, and inattention during long trials. Professional jurors have been proposed as an alternative. V. Improving the Adjudication Process World Wide Web Other Web sites for organizations and agencies related to the material in Chapter 10 include: Web Site URL Office of the U.S. Attorney General http://www.usdoj.gov/ag American Bar Foundation http://www.americanbarfoundation.org/index.html Delaware Public Defender Home Page http://publicdefender.delaware.gov/ Federal Magistrate Judges Association http://www.fedjudge.org Illinois Office of the State Appellate http://www.state.il.us/defender Defender National Jurist Online for Future Lawyers http://www.natjurist.com/hc3.asp New York State Defenders Association http://www.nysda.org Citizens for Effective Justice http://home.flash.net/~fedup/