Pretrial%20Procedures:

1

• Chapter 9
• Pretrial Procedures
• The Adversary System in Action

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Learning Outcomes

• LO1List the different names given to public
  prosecutors and indicate the general powers that
  they have.
• LO2 Delineate the responsibilities of defense
  attorneys
• LO3 List the three basic features of an
  adversary system of justice.
• LO4 Explain how a prosecutor screens potential
  cases.
• LO5 List and briefly explain the different forms
  of plea bargaining agreements.

3
List the different names given to public
prosecutors and indicate the general powers that
they have.
4
Learning Outcome 1

• Criminal cases are tried by public prosecutors,
  who are employed by the government.
• Referred to as prosecuting attorneys, district
  attorneys, county attorneys, or city attorneys.

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Learning Outcome 1

• Prosecutors discretion in the pretrial phase
  includes
• Whether an arrested individual will be charged
  with a crime
• The level of the charges
• If and when to stop the prosecution.

6
Learning Outcome 1

• The attorney general is the chief law enforcement
  officer of the state.
• Each jurisdiction has a chief prosecutor who is
  appointed, or more often, elected.

7
Delineate the responsibilities of defense
attorneys.
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Learning Outcome 2

• Provides legal representation to criminal
  defendants during the court process.
• Responsibilities include
• Investigating the incident for which the
  defendant has been charged.
• Communicating with the prosecutor, which includes
  negotiating plea bargains
• Preparing the case for trial.
• Submitting defense motions, including motions to
  suppress evidence.
• Representing the defendant at trial.
• Negotiating a sentence, if the client has been
  convicted.
• Determining whether to appeal a guilty verdict

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Learning Outcome 2

• There are two types of defense attorneys
• Private attorneys
• Public defenders
• Gideon v. Wainwright (1963)
• In re Gault (1967)
• Argersinger v. Hamlin (1972)

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CAREERPREP

• Public Defender
• Job Description
• Interview low-income applicants for legal
  services and, if they are eligible, engage in
  negotiation, trial, and/or appeal of legal issues
  on their behalf.
• Exercise initiative, sound judgment, and
  creativity in attempting to solve the legal
  problems of the poor.
• What Kind of Training Is Required?
• A law degree and membership in the relevant state
  bar association.
• Commitment and dedication to the needs of
  low-income and elderly clients.
• Annual Salary Range?
• 44,00092,000
• For additional information, visit
  www.nlada.org/Jobs.

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Learning Outcome 2

• Effectiveness of Public Defenders
• According to Supreme Court a defendant may not
  insist on an attorney he cannot afford.
• The Strickland Standard
• Two pronged test for sufficient defense
• Show that attorneys performance was deficient
• Show that deficiency more likely than not caused
  defendant to lose the case

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Learning Outcome 2

• Attorney-Client Privilege
• Privilege rules require that communication
  between a client and lawyer be kept confidential.
  
• Privilege does not stop at confessions.
• United States v. Zolin (1989)
• Lawyers can disclose communication with a client
  if client provides information about a crime that
  has yet to be committed.

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List the three basic features of an adversary
system of justice.
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Learning Outcome 3

• Three basic features of the adversary
• system
• A neutral and passive decision-maker, either the
  judge or the jury
• The presentation of evidence from both parties
• A highly structured set of procedures that must
  be followed

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Learning Outcome 3

• The initial hearing is the first step after
  arrest.
• During the appearance, the defendant is
• Informed of the charges
• Advised of right to counsel
• Told the amount of bail
• Given a date for the preliminary hearing

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Learning Outcome 3

• In most felony cases, defendant is released only
  after paying bail.
• Bail is provided for under the 8th amendment.
• Amount of bail must be reasonable compared with
  the crime.

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Learning Outcome 3

• Factors for setting bail
• The crime
• The evidence
• Defendants record
• Flight risk
• General character

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Learning Outcome 3

• Factors for setting bail
• Uncertainty
• Risk
• Overcrowded jails

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Learning Outcome 6
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Learning Outcome 3

• Release on recognizance (ROR
• Alternative to bail
• The judge decides that defendant is not a flight
  risk and does not pose threat to community.
• Property bonds
• Paying bail with property, rather than cash.
• Bail bond agent
• An agent that posts bail on behalf of defendant.
• Promises to pay full amount of bail if defendant
  does not show up to court.

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Learning Outcome 3

• Preventive Detention
• Allows judges to deny bail to suspects with prior
  records.
• The Bail Reform Act of 1984
• United States v. Salerno (1987)

22
Explain how a prosecutor screens potential
cases.
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Learning Outcome 4

• Preliminary Hearing
• Initial hearing where the judge determines if
  probable cause is present
• Conducted as a mini-trial
• Begins the process of discovery gives defense
  attorney access to evidence
• Defense attorneys often advise defendants to
  waive the hearing.

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Learning Outcome 4

• Grand Jury
• Group of citizens who decide whether probable
  cause exists
• Issues an indictment if it decides there is
  probable cause.
• Acts as a shield and sword
• Criticized for being prosecutors rubber stamp

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Learning Outcome 4

• Case attrition is the decision by the prosecutor
  not to prosecute the defendant (nolle prosequi)
• Scarce resources
• Screening factors
• Sufficient evidence
• Case priorities
• Uncooperative victims
• Unreliability of victims
• Defendant who is willing to testify against other
  offenders

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27
List and briefly explain the different forms of
plea bargaining agreements.
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Learning Outcome 5

• At the arraignment
• Defendant responds to charges with a plea
• Guilty
• Not Guilty
• Nolo Contendre (No contest)

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Learning Outcome 5

• Plea bargaining
• Process by which the accused and prosecution work
  out a mutually satisfactory disposition.
• Charge bargaining
• Sentence bargaining
• Count bargaining

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Learning Outcome 5

• Motivations for Plea Bargaining
• The Prosecutor wants a conviction
• Defense Counsel wants best outcome for the
  defendant
• The Defendant wants some measure of control over
  the outcome

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Source Adapted from Bureau of Justice
Statistics, State Court Sentencing of Convicted
Felons, 2004 (Washington, D.C. U.S. Department
of Justice, July 2007), at www.ojp.usdoj.gov/bjs/p
ub/html/scscf04/tables/scs04404tab.htm.