Theme 4 PowerPoint Presentation
Theme 4 PowerPoint Presentation
Theme 4 PowerPoint Presentation
Initial hearing
Plea
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BAIL
In addition to the above steps the defendant is
also considered for bail
Bail is a form or security, usually a sum of
money, that is put up or exchanged to secure the
release of an arrested person before the trail
begins
Failure to appear results in the forfeiting of the
bail
Whether a defendant can be expected to appear
at the next stage of the criminal proceedings is a
key issue Prevents
innocent person
Key ingredient of a fair and equitable from spending
adjudication process Enables people time behind bars
to prepare a
defense 3
THE LEGAL RIGHT TO BAIL
Statute of Westminster – set out the offenses
that were bailable
Judiciary Act of 1789 – “upon all arrests in
criminal cases, bail shall be admitted, except
where punishment may be by death, in which
cases it shall not be admitted but by the
supreme or a circuit court, or by a justice of
the supreme court, or a judge of a district
court, who shall exercise their discretion
therein.”
Eight Amendment of the U.S Constitution
1951 case of Stack v Boyle
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MAKING BAIL
More serious charges less likely to be granted
bail
Less serious charges more likely to be
granted bail
Bail typically considered at a court hearing
Crime type, flight risk, and dangerousness
Victim input
Prior record
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ALTERNATIVE BAIL RELEASE
MECHANISMS
Police field citation release
Police station house citation release
Police/pretrail jail citation release
Pretrial/court direct release by pretrial bail
program
Police/court bail schedule
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TYPES OF BAIL
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PRETRIAL DETENTION
The criminal defendant who is not eligible
for bail or release on recognizance is subject
to pretrial detention
Also includes people who cannot afford to
post bail
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BAIL REFORM
Views of bail
Unacceptable
Discriminatory
Government pays to detain offenders
Reforms
Release on recognizance
Preventive detection
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RELEASE ON RECOGNIZANCE
Allow defendants to be released without any
money
Popular in 1960s - resulted in bail reforms that
culminated in the enactment of the Federal
Bail Reform Act of 1966
The Bail Reform Act of 1984
The seriousness of the charged offence, the
weight of the evidence, the sentence that may
be imposed upon conviction, court appearance
history, and prior convictions are likely to
influence the release decisions of the federal
court
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PREVENTIVE DETENTION
Tighten bail restrictions on the most dangerous offenders
Fear dangerous criminals may reoffend
Avertable recidivists – a person whose crime would have
been prevented if he had not given discretionary release
and instead had been kept behind bars
Preventive detention – deny bail to a particular individual
Bail Reform Act of 1984 – allows judges to order
preventive detention if they determine “that no condition
or combination of conditions will reasonably assure that
appearance of the person as requires and the safety of any
other person and the community.”
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PRETRAIL SERVICES
Specialised pretrail services help courts deal
with determining which defendants can
safely be released on bail
Provides critical services including:
Gathering and verifying information about
arrestees
Assessing each arrestee’s likelihood of failure to
appear
Providing supervision for defendants
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CHARGING THE DEFENDANT
The charge is selected by the prosecutor,
who takes into consideration the facts of the
case, strength of the evidence, availability of
witnesses...
The process varies
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THE INDICTMENT PROCESS: THE
GRAND JURY
Magna Carta (1215)
Grand jury brought to the American colonies by
early settlers and later incorporated into the
Fifth Amendment
“no person shall be held to answer for a
capital, or otherwise infamous crime, unless on
a presentment or indictment of a grand jury.”
Grand jury is diminishing
Most allow the prosecutor the option of calling
a grand jury or proceeding with a preliminary
hearing
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Grand jury today has two roles
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Role two – accusatory in nature
Determines whether an accusation by the state
justifies a trial
Relies on the testimony of witnesses
Decides whether probable cause exists for
prosecution
True bill or no bill is passed
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THE INFORMATION PROCESS:
THE PRELIMINARY HEARING
Purpose – is to require the prosecutor to
present the case so that the judge can
determine whether the defendant should be
held to answer the charge against him/her in
court
Purpose is the same as grand jury however
the procedures differ
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THE PRELIMINARY PROCEDURE
Conducted before a magistrate or lower court
judge
Open to the public unless the defendant
requests otherwise
Present at the hearing are the prosecuting
attorney, the defendant, and the defendant’s
counsel
Prosecution present evidence to the judge
Defense counsel has the right to cross-examine
witnesses to the challenge evidence
After the hearing the judge decides whether
there is sufficient probable cause
Information – a formal charging document
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WAIVING THE PRELIMINARY
HEARING
Defendant’s right to waive the proceeding
Three reasons a defendant may want to
waiver
He has already decided to plea guilty
He wants to speed up the criminal process
He hopes to avoid the negative publicity that
might result from the hearing
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ARRAIGNMENT
Takes place before the court after an
indictment or information is filed
Judge informs the defendant of the charges
and appoints counsel if needed
Judge to make sure the accused clearly
understands the charges
After charges are read and explained, the
defendant is asked to enter a plea
A trial date is set if a not guilty plea or not
guilty by reason of insanity is entered
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Not guiltyNolo
Guilty contendere
The pleas
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Guilty
Functions as a surrender of the entire array of
constitutional rights
For guilty plea to be valid, it must be both
understood and voluntary
Judge must follow certain procedures when
accepting a plea of guilty
Judge must clearly state to the defendant the
constitutional guarantees
Judge must believe that the facts of the case established
is basis for the plea and that the plea is made voluntarily
Defendant must be informed of the right to counsel
Defendant must be informed of the possible sentencing
outcomes
After guilt plea has been entered, a sentence date
is arranged
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Not guilty
Entered in two ways
It is orally stated by the defendant or the defense
counsel or
It is entered for the defendant by the court when the
defendant stands mute before the bench
Once a plea of not guilty is recorded, a trial date
is set
Nolo contendere
Essentiallya plea of guilty
Same consequences as a guilty plea
One exception – it may not be held against the
defendant as proof in a subsequent civil matter
Accepted at the discretion of the trial court
Must be voluntarily
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PLEA BARGAINING
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THE NATURE OF PLEA BARGAIN
Is the exchange of prosecutorial and judicial
concessions for pleas of guilt
Made between the prosecutor and the defence
attorney in four ways:
The initial charges may be reduced to those of a lesser
offense, thus automatically reducing the sentence
imposed
In cases in which many counts are charges, the
prosecutor may reduce the number of counts
The prosecutor may promise to recommend a lenient
sentence, such as probation
When the charge imposed has a negative label attached,
the prosecutor may alter the charge to a more socially
accepted one
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What are some of the pros and cons of plea bargaining?
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PROS AND CONS OF PLEA
BARGAINING
Benefits both the state and the defendant
Cost
Administrative Efficiency
More time to serious matters
Reduced sentence
Resources
Plea bargaining should eliminated
Waive constitutional rights
Dangerous offenders to receive lenient sentences
Danger of innocent person convicted
Induce or compel defendants to plea bargaining
Innocent may admit guilt
Guilty-plea culture
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LEGAL ISSUES IN PLEA
BARGAINING
Effective assistance of counsel
Voluntarily and without pressure
Promises kept
Keep the bargain
Due process rights
Accepting guilty plea
Statements may be used under some
circumstances
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THE ROLE OF THE PROSECUTOR
IN PLEA BARGAINING
Broad discretion
Initiate
a criminal prosecution
Determine the nature and number of the criminal charges
Choosing whether to plea bargain a case and
Under what conditions
Plea bargaining is one of the major tools the prosecutor uses
In making a plea bargaining decision
Seriousness of the crime
The attitude of the victim
The police report of the incident
Applicable sentencing provisions
Defendant’s prior record and age
Type, strength, and admissibility of evidence
Attitude of complainant
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THE ROLE OF THE DEFENCE
COUNSEL IN PLEA BARGAINING
No court should accept a guilty plea unless
the defendant has been properly advised by
counsel and the court has determined that
the plea is voluntary and has a factual basis
The defense attorney is responsible for
making certain that the accused understands
the nature of the plea bargaining process and
the guilty plea
Keep defendant informed of developments
Ethically and constitutionally required to
communicate
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THE ROLE OF THE JUDGE IN
PLEA BARGAINING
Creates the impression that defendants cannot
receive a fair trial
Lessens the ability of the judge to make
objective determination
Inconsistent with the theory behind the use of
presentence investigation reports
May induce innocent defendants to plea guilty
Thus judges limit their role
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THE VICTIM AND PLEA
BARGAINING
Do not play a role in the plea negotiations
Statutes do not require that the prosecutor
defer to victim’s wishes
No legal consequence
Prosecutors do confer with crime victims
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PLEA BARGAINING REFORM
Safeguards
Judges questions the defendant about the facts
of the guilty plea
Defence counsel is present and can advise the
defendant
Prosecutor and the defence attorney opening
discuss the plea
Full information about the defendant and the
offenses is made available at this stage of the
process
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PRETRIAL DIVERSION
Placing offenders into noncriminal diversion programs
before their formal trial or conviction
Late 1960s and early 1970s
Formal criminal proceedings suspended while the person
participates in the program
Helps offenders avoid stigma
Prosecutor play central role
Natureof crime, Special characteristics of the offender, First
time offender, Cooperation, Impact of program, Impact on
community, Opinion of victim
Independent agencies and department’s internal
structure
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THE TRIAL
Public hearing
Symbolises the administration of objective
and impartial justice
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LEGAL RIGHTS DURING TRIAL
Right to an impartial judge
Every criminal defendant enjoys the right to a
trial by an impartial judge
Right to be competent at trial
Criminal
defendant must be considered mentally
competent
Right to confront witnesses
Trialscannot be conducted without the accused
being afforded the right to appear in person
Confrontation clause
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The right to compulsory process
Compel the production of witnesses via subpoena
Rights to an impartial jury
Defendant has the right to choose whether the
trial will be before a judge or jury
Right to counsel at trial
Statecourts must provide counsel at trial to
indigent defendants
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Right to a speedy trial
improve the credibility of the trial by having
witnesses available for testimony
Help criminal defendants avoid lengthy pre-trial
detention
Avoid extensive pre-trial publicity and
questionable conduct of public officials that may
influence the defendant’s right to a fair trial
Avoid any delay that could affect the
defendant’s ability to defend himself/herself
against charges
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The right to a public trial
alltrials must be open to the public
Can prevent a defendant from getting a fair trial
Release of premature evidence by the
prosecutor, extensive and critical reporting by
the news media... All prejudice a defendant’s
case
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The right to be convicted by proof beyond a
reasonable doubt
Prime instrument for reducing the risk of
convictions based on factual errors
It is better to release a guilty person than to
convict someone who is innocent
Forces the prosecution to overcome this
presumption with the highest standard of proof
Requires proof beyond a reasonable doubt for
each of the offense
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STAGES OF THE JURY TRIAL
Stage 1 – Jury selection
Stage 2 – opening statements
Stage 3 – presentation of evidence
Stage 4 – closing arguments
Stage 5 – jury deliberations
Stage 6 – sentencing
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Avenues to challenge procedures
Writ of habeas
Appeals corpus
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