Chapter 8
Pretrial and Trial
Procedures
Learning Objectives
 Summarize the bail process
 Discuss the main issues associated with bail
 Differentiate the 2 main mechanisms for
charging defendants (grand jury indictment or
prosecutor’s information)
 Summarize the pleas available to a criminal
defendant
 Explain the issues involved in plea bargaining
Learning objectives
 Describe the plea bargaining process
 Explain the purpose of pretrial diversion
 Describe the goals and purpose of the trial
process
 Explain the legal rights of the accused at trial
 Summarize the trial process
Pretrial Procedures
 Important components of the justice process
 Vast majority of cases are resolved informally
at this stage and never come before the courts
Bail
 Defined:

Security provided to the court that the defendant will
appear at every stage in the CJ process

Failure to appear results in forfeiture of bail is forfeited
and confinement in jail until court appearance
 Right to Bail:

Eighth Amendment does not guarantee bail, but prohibits
excessive bail

Stack v Boyle - bail is excessive when it exceeds an amount
reasonably calculated to ensure the defendant’s
appearance at trial
Bail
 Bail Release Mechanisms:

Issues to be considered for bail eligibility:

Crime type

Flight risk

Dangerousness of defendant
 Bail Release Mechanisms:





Police field citation release
Police station house citation release
Police/pretrial jail citation release
Direct release programs
Police/court bail schedule
Bail
 2/3 of all felony defendants were released on
bail
 1/ 2 of all violent criminals were released on
bail
 8% of suspected murderers released on bail
 42% robbery suspects released on bail
 44% motor vehicle theft release rate
 49% burglary release rate
 55% rape suspect release rate
Six Types of Bail
Full Cash
Deposit Cash
Surety Bail
Conditional Bail
Unsecured Bail
Release on Recognizance (ROR)
Bail
 Bail Issues:

Determining whether or not the defendant will appear
for trial

Discriminatory against the poor

Costly for government

Unfair – higher proportion of detainees receive longer
sentences than people on bail

Dehumanizing
 The decision to bail may be racially or
ethnically biased
Bail
 Bail Issues:

Bondsmen and County Hunters

Employed by bonding agencies to find and return bail
jumpers

Have legal powers to arrest and detain which vary from
state to state
Bail
 Bail Reform:

Factors such as conviction and sentence disparities
have given rise to bail reform movement

Manhattan Bail Project (1961)

Federal Bail Reform Act of 1966

Bail Reform Act of 1984
Bail
 Preventive Detention:
 Certain defendants can be confined before trial
without the possibility of bail

Preventive detention is ordered if judges determine that no
condition or combination of conditions will reasonably
assure the appearance of the person and the safety of any
other person or community
Bail
 Pretrial Services:

Provide information for judges to make release
decisions

Assess likelihood of defendant failing to appear or
being rearrested

Monitor conditions of release or provide intensive
supervision

Provide special services for mentally ill

Provide intense direct supervision
Charging the Defendant
 The Indictment Process and the Grand Jury:

Power to act as independent investigating body

Contains information on findings and
recommendation of indictment

Determines if probable cause exists:

Probable cause results in indictment or true bill:

No probable cause, no bill
Charging the Defendant
 The Information Process and the Preliminary
Hearing:

Open hearing conducted before a judge

Judge decides whether there is sufficient probable
cause to believe the defendant committed the alleged
crime
Charging the Defendant
 Arraignment:

Occurs after the indictment but before trial

Judge informs defendant of charges and availability
of counsel

Plea is entered
 The Plea:

Guilty

Not guilty

Nolo contendere
Plea Bargaining
 Exchange of prosecutorial and judicial
concessions for guilty plea
 Initial charges may be reduced
 Prosecutor may promise to recommend lenient
sentence
 Prosecutor may alter charge

90% of criminal convictions are a result of negotiated
guilty pleas
Plea Bargaining
 Proponents argue the benefits:

Costs of prosecution reduced

Administrative efficiency of courts improved

Prosecution can devote more time to more serious cases
 Opponents believe:

Dangerous offenders may receive lenient sentences

Prosecutors given free hand to induce or compel
defendants to plea bargain

Possible that an innocent person will admit guilt if they
believe system is biased and have little chance of acquittal
Plea Bargaining
 Legal Issues in Plea Bargaining:

Defendants entitled to effective counsel

Pleas must be voluntary and without pressure

Any promise made by the prosecutor must be kept
after defendant admits guilt

Defendants must also keep their side of the bargain
to receive the promised offer of leniency
Plea Bargaining
 The Role of Defense Counsel:

Advisory role

Ensure defendant understands the process and the
guilty plea

Ensure defendant understands alternatives

Communicate all offers to client
 The Role of the Judge:

Judges must approve plea agreements
Plea Bargaining
 Plea Bargaining Reform:

Safeguards developed to ensure innocent individuals
do not plead guilty under coercion

Judicial supervision ensures plea bargaining
conducted in a fair manner

Banning plea bargaining
Pretrial Diversion
 Diversion programs suspend criminal proceedings
so that accused can participate in community
treatment programs
 Diversion gives the client an opportunity to:

Avoid stigma of criminal record

Continue to work and support family

Continue education goals

Access rehabilitation services such as anger management

Make restitution to the victim or payback community

Reduce costs and alleviate prison crowding
The Trial
Bench
Trail
Jury
Trial
• Judge renders verdict
• (if defendant waives jury trial)
• Jury renders verdict
The Trial
 Legal Rights During Trial:

Impartial judge

Competent at trial

Confront witnesses

Compulsory process

Impartial jury

Counsel at trial

Speedy trial

Public trial

Convicted by proof beyond a reasonable doubt
The Trial
The Trial
 Jury Selection:

The prosecutor and defense attorney can remove
prospective jurors (under oath) by challenges known
as:
 Voir dire
 Challenge for cause
 Peremptory challenges
The Trial Process
 Opening Statements:

Prosecutor makes first opening statement, then defense
attorney

Statement provides an overview of the case

No prejudicial remarks, inflammatory statements, or
irrelevant facts
 Prosecutor’s Case:

Present evidence

Call witnesses

Cross examination

Witnesses restricted to factual information

Only expert witnesses can offer opinions
The Trial Process
 The Criminal Defense:

Defendant under no obligation to present evidence as
burden of proof is on the prosecution

Refutes prosecution’s allegations

After the defense rests prosecution is given the
opportunity for rebuttal, followed by the defense’s
surrender rebuttal
 Closing Arguments:

Selectively review facts and evidence

Provides inferences from evidence

Cannot refer to matters not in evidence
The Trial Process
 Instructions to the Jury:

Judge will instruct, or charge the jury members on
the principles of law that ought to guide and control
their decision on the defendant’s innocence or guilt
 Deliberation and Verdict:

Guilty, innocent, hung jury, jury nullification
The Trial
 The Sentence:

Usually by the trial judge but in some jurisdictions
jury may impose or make recommendation

Judge considers information in pre-sentence
investigation report (PSI)

Different sanctions include:

Fines

Probation

Imprisonment
The Trial
 The Appeal:

Once a defendant has been found guilty, they may
petition an appellate court to review the procedures
used during the trial

Defendants may have two main avenues to challenge
such procedures:
①
Appeals
②
Habeas corpus