Chapter 10

The Pretrial Process

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Introduction: The Road to Trial

Once a person is arrested, be it with or without a warrant, the arrestee will be booked at the arresting officers police station Booking consists of filling out paperwork as to who was arrested, the time of the arrest, and the offense involved Other booking events include:

Inventorying personal items Photographs and fingerprints Holding cell Contact counsel, family, and others

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I. THE INITIAL APPEARANCE

Initial appearance follows booking Not all jurisdictions require an initial appearance Must follow arrest closely in time Initial appearance serves such purposes as:

Trial for misdemeanors Advise suspect why he or she is detained Advise suspect of privilege against self-incrimination Advise suspect of right to appointed counsel Bail may possibly be set

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II. THE PROBABLE CAUSE HEARING

In Gerstein v. Pugh (1975) the Supreme Court held that the Fourth Amendment requires a probable cause hearing either before or promptly after arrest Not necessary following arrests with warrants Reason for the hearing:

Provides judicial oversight concerning arrest decision

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A. Procedural Issues Surrounding the Hearing

The Supreme Court has declared that the probable cause hearing is a not a critical stage of the criminal process This means that the accused enjoys fewer constitutional protections at this stage

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B. Timing of the Hearing

Must take place promptly after arrest In Riverside County v. McLaughlin (1991), the Court held that a probable cause hearing that takes place within 48 hours of arrest conforms with Fourth Amendment requirements Acceptable reasons for delay include:

Transporting No available judge Arresting officer tied up Gather additional evidence Make suspect wait for no legitimate reason

Unacceptable reasons for delay:

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III. PRETRIAL RELEASE

Pretrial release occurs when an arrestee is released prior to his or her trial There is no constitutional right to bail; instead, bail cannot be excessive

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A. The Pretrial Release Hearing

The Constitution does not specify whether bail should be set in a separate hearing, but numerous Court decisions seem to suggest a separate hearing is warranted The Supreme Court has not clarified what protections the accused enjoys at the pretrial release hearing

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B. Methods of Pretrial Release

Methods of pretrial release include:

Bail Release on recognizance Preventive detention

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1. Bail

Federal and state laws permit bail for most offenses Bail decision is problematic because bail is set according to offense, not offender Bail bonds agents step in when:

Bail is high Defendant cannot afford to post bail

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2. Release on Ones Own Recognizance

Release on recognizance (ROR) means that the accused is released with the assumption that he or she will show up for scheduled court hearings Reserved for defendants with minimal flight risk Federal Bail Reform Act permits release on recognizance for certain offenders

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3. Preventive Detention

The Federal Bail Reform Act of 1984 permits detention for up to ten days of an individual who may flee or pose a danger to any other person or the community This is known as preventive detention and is reserved for high flight risks and otherwise dangerous offenders

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C. Criteria for Release

Three factors are typically considered in the judges bail decision:

Accuseds flight risk Accuseds level of dangerousness Accuseds financial status

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1. Flight Risk

In Stack v. Boyle (1951), the Supreme Court declared that the purpose of bail is to ensure the accuseds appearance at trial Bail should be set at an amount designed to minimize the risk of flight

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2. Dangerousness

Bail can be denied to dangerous individuals Does not violate the Eighth Amendment

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3. Financial Status

Courts often take into account the accuseds financial status in making a bail decision Surprisingly, bail can be denied simply because the accused is unable to pay it (see Schilb v. Kuebel, 1971)

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D. Treatment of Pretrial Detainees

In Bell v. Wolfish (1979), the Supreme Court upheld unannounced searches of jail living quarters, but was careful to state that when such searches are intended to punishinstead of serve some legitimate governmental purpose, such as ensuring the safety and security of inmatesthey can violated due process

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IV. THE PRELIMINARY HEARING

The preliminary hearing is to be distinguished from the initial appearance, the probable cause hearing, and the pretrial release hearing It almost always takes place after either of these hearings as well as after the charging decision Helps prevent hasty, malicious, improvident, and oppressive prosecutions Resembles a criminal trial Not constitutionally required

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(continued)

Whether a preliminary hearing is required typically depends on a jurisdictions method of filing criminal charges In grand jury indictment jurisdictions (those that require that charges be filed in the form of a grand jury indictment), if the prosecutor secures an indictment within a specified time period, no preliminary hearing is required However, if a prosecutor proceeds by information, then the defendant will usually be entitled to a preliminary hearing before the charges are filed

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A. The Probable Cause Requirement

Assuming a preliminary hearing is required, the prosecutor has the burden of proving that the case be bound over (i.e., handed over to) a grand jury or go to trial The standard of proof is probable cause Distinguish between the preliminary hearing and the probable cause hearings as follows:

Probable cause hearings dwell on the justification to arrest Preliminary hearing dwells on whether probable cause exists to proceed with a trial

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(continued)

Why probable cause and not a higher standard?

A higher standard would make trial pointless

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B. Procedural Issues

Right to counsel attaches in preliminary hearings because they are adversarial Evidence procedures differ from standard trial Exclusionary rule does not apply Accused does not enjoy the constitutional right to cross-examine at the preliminary hearing

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V. THE ARRAIGNMENT

Once a person has been formally charged, he or she will be arraigned The purpose of arraignment is to formally notify the defendant of the charge lodged against him or her One of three pleas is entered at arraignment

Guilty Not guilty Nolo contendere

No such plea as innocent!

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(continued)

Pleas of guilty and not guilty are self-explanatory A plea of nolo contendere means I do not desire to contest the action. A plea of nolo contendere resembles a guilty plea but is different in the sense that it may not be used against the defendant in any later civil litigation arising from the acts that gave rise to the criminal charges Guilty pleas require the defendant to allocute (i.e., explain)

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VI. SUMMARY OF PRETRIAL PROCEEDINGS

There are five potential pretrial proceedings:

Initial appearance Probable cause hearing Pretrial release hearing Preliminary hearing Arraignment

There is no consensus as to how many of these are constitutionally required

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VII. DISCOVERY

Discovery is the process by which both parties to a case learn of the evidence that the opposition will present Federal Rules of Evidence permit discovery of:

Any written statements or transcriptions of oral statements made by the defendant that are in the prosecutions possession The defendants prior criminal record documents, photographs, tangible items, results from physical and mental evaluations, and other forms of real evidence considered material to the prosecutions case

Discovery ends where strategy begins Work product is off limits

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A. Discovery by the Prosecution

Discovery by the prosecution is relatively limited because of the constitutional rights enjoyed by criminal defendants The scope of prosecutorial discovery has been addressed repeatedly in the courts via the Fifth and Sixth Amendments

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1. Fifth Amendment Restrictions

In Williams v. Florida (1970), the Supreme Court held that the prosecution can discover alibi defenses The defense often has to supply the prosecution with witness lists also One item concerning witnesses that the defense is not required to share with the prosecutor is whether the defendant will testify (see Brooks v. Tennessee, 1972) Defense must disclose real and documentary evidence

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2. Sixth Amendment Restrictions

In United States v. Nobles (1975), the defense attempted to call a private investigator to the stand whose testimony would have cast doubt on the prosecutions case. The trial judge ruled that the investigator could not testify until the prosecution received portions of the investigators pretrial investigative report. The Supreme Court upheld this decision In Taylor v. Illinois (1988), the Court upheld a trial courts decision to exclude testimony of a defense witness whose identity was not disclosed to the prosecution

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B. Discovery by the Defense

The Fifth and Sixth Amendments do not limit defense discovery

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1. Restrictions on Discovery by the Defense

In Wardius v. Oregon (1973), the Supreme Court declared that the prosecution must provide the defense with a list of witnesses who will testify in rebuttal to the defendants alibi or defense In United States v. Armstrong (1996), the Supreme Court held that the prosecution need only supply the defense with evidence that is material to the preparation of the defendants case

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(continued)

Shields can be discovered, not swords Defense cannot discover certain facts if:

It would afford the defendant increased opportunity to produce perjured testimony and to fabricate evidence to meet the States case Witnesses would be subject to bribe, threat and intimidation Disclosure by the State would afford the defendant an unreasonable advantage at trial Disclosure is unnecessary in any event because of the other sources of information which defendant has under existing law

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C. Nonreciprocal Discovery

With few exceptions, discovery is a two-way-street; the defense must supply the prosecution with certain information and vice-versa There are some circumstances where the prosecution is required to supply information to the defense, but not vice-versa Examples:

The prosecution has a constitutional duty to disclose exculpatory evidence to the defense The prosecution has a constitutional duty to preserve evidence, but the defense does not

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1. The Prosecutions Duty to Disclose Exculpatory Evidence

As a matter of due process, the prosecution has a constitutional duty to reveal exculpatory evidence to the defense The prosecutions constitutional duty to disclose exculpatory evidence hinges on whether such evidence would have a reasonable probability of changing the outcome of the case

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2. The Prosecutions Duty to Preserve Evidence

The prosecution is also constitutionally bound to preserve evidence The prosecution cannot destroy exculpatory evidence in an effort to gain a conviction. To do so would be a violation of due process The police must also preserve evidence Without a proper chain of custody (and sometimes even with one), the defense will allege that the evidence was tampered with or tainted in such away that it cannot prove the defendants involvement in a crime

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