Chapter 7: Prosecution, Defense, and Pretrial Procedures

 

Prosecution

 

Prosecutors: A person that represents the government in a criminal charge against a defendant. Examples of titles are district attorney, state’s attorney, county attorney, commonwealth’s attorney, U. S. attorney.

 

In Kentucky:

·        county attorney handles cases in district court

·        commonwealth’s attorney handles cases in circuit court

 

General duties of a prosecutor:

·        enforces the law (through the prosecution of violations) ·        conducts investigations of violations of law ·        works with police ·        determines final charge prior to court ·        subpoenas witnesses

·        develops programs and legislation for legal reform ·        spokesperson for law and other legal issues ·        represents the government ·        plea bargains ·        recommends sentences to court

 

Prosecutorial Discretion

 

Prosecutors have a tremendous power over a person’s liberty through their discretion over whether or not to bring cases to court. Prosecutors have more discretion than the police since the discretion of the police is temporary and usually reviewed. Generally most cases brought to trial by a prosecutor are won. 

 

Many criminal cases are rejected or dismissed because:

 

• Insufficient evidence that results from a failure to find sufficient physical evidence that links the defendant to the offense

• Witness problems that arise, for example, when a witness fails to appear, gives unclear or inconsistent statements, is reluctant to testify, is unsure of the identity of the offender or where a prior relationship may exist between the victim/witness and offender
• The interests of justice, wherein the prosecutor decides not to prosecute certain types of offenses, particularly those that violate the letter but not the spirit of the law (for example, offenses involving insignificant amounts of property damage)
• Due process problems that involve violations of the Constitutional requirements for seizing evidence and for questioning the accused
• A plea on another case, for example, when the accused is charged in several cases and the prosecutor agrees to drop one or more of the cases in exchange for a plea of guilty on another case
• Pretrial diversion that occurs when the prosecutor and the court agree to drop charges when the accused successfully meets the conditions for diversions, such as completion of a treatment program
• Referral for other prosecution, such as when there are other offenses, perhaps a more serious nature in a different jurisdiction, or deferral to Federal prosecution.

Defense Attorneys

 

Role of the defense attorney: To protect the rights of the client during the criminal justice process and to provide the best possible defense for all allegations.

 

Types:

·        Public defender- attorney that is state employee whose purpose is to represent indigent persons accused of crimes.

·        Assigned counsel- private attorney selected from a list and reimbursed by state for legal services.

·        Contract attorney- private attorney agrees to represent indigent for an agreed upon fee.

·        Mixture.

 

Tasks of a defense attorney:

·        investigating the incident ·        interviewing the client, police, and others ·        discussions with the prosecutor ·        representing the client at hearings, pretrial procedures, trial, appeals

·        plea bargaining ·        case preparation (strategy) ·        filing and arguing legal motions ·        providing assistance at sentencing

 

Criminal Defenses

 

Criminal defenses may involve issues of:

·        Criminal responsibility

·        Justification

 

Criminal responsibility: The law recognizes that under certain conditions a person’s diminished mental capacity or state may limit him/her from criminal responsibility. These diminished capacities or states may result from:

·        insanity 

·        intoxication

·        age

 

Justifications (excuses):

·        consent ·        self defense ·        entrapment (predisposition) ·        double jeopardy (5th amendment protection)

·        mistake (ignorance of law no defense, ignorance of fact might be) ·        compulsion ·        necessity (lesser of two evils)

 

Sixth Amendment Right to Counsel

 

Gideon v. Wainwright, 1963- The U. S. Supreme court ruled that state courts must provide counsel to indigent defendants during felony trials.

 

Argersinger v. Hamlin, 1972- Supreme Court extended the privilege to all cases where a defendant could be incarcerated.

 

The courts have since extended the right to counsel to indigent defendants at practically all stages of the system from arrest through release.

 

Competency: The right to counsel includes the right to competent counsel. Defendants are appealing cases with increasing frequency on basis of inadequate counsel. Since this issue has become an increasing problem for the courts, the Supreme Court has established a two pronged test for attorney competence in Strickland v. Washington, 1984:

 

·        Was attorney’s performance deficient to the extent that serious errors were made?

·        Did the deficient performance deprive the defendant of a fair trial?

 

Pretrial Procedures

 

Steps in the Criminal Justice Process before Trial

1. Report of a crime
2. Investigation prior to arrest
3. Arrest
4. Booking
5. Post-arrest investigation
6. Prosecutor's decision to charge suspect with a crime
7. Initial appearance
8. Preliminary hearing
9. Grand jury review
10. Arraignment
11. Pretrial motions
12. Pretrial conferences

Preliminary Hearings

 

Preliminary hearing: A hearing, usually before a lower court judge (District Judge in Kentucky), in which evidence (often in the form of testimony for the prosecution) is presented to determine whether there is sufficient evidence (or probable cause) to have a trial.

 

Information: In some jurisdictions a prosecutor draws up an “Information” or charging document that is presented to the lower court judge prior to the hearing. It is similar to an indictment. In Kentucky, an Information is primarily used when both the prosecutor and defense attorney agrees to the charge and the potential outcome of the charge. Its purpose is to speed up the process and circumvent the grand jury process.

 

Grand Jury

 

Grand jury: A panel of civilians (12 in Kentucky) that hears evidence, along with an indictment or charging document drawn up by the prosecutor, related to an offense or pending criminal charge.

 

Two functions of the grand jury:

1.      Deliberates on the sufficiency of probable cause

2.      Conducts investigations

 

The grand jury determines whether there is sufficient evidence to have a trial. Generally, grand juries meet at the request of the prosecution and their proceedings are closed and secret.

 

A grand jury may:

·        Return a true bill (a determination that there is sufficient evidence or probable cause for a trial, in which case an indictment is affirmed)

·        Return a no bill or a no true bill (a determination that there is insufficient evidence or probable cause for a trial).

 

Indictment: The official document stating the name of the accused, the charge, and the essential facts supporting that charge.

 

Arraignment

 

After an information or indictment is affirmed, a defendant is arraigned. An arraignment is the process whereby the defendant is brought before the trial judge.

 

During an arraignment, the trial judge

·        Informs the defendant of the charge

·        Ensures that the defendant is adequately represented by counsel

·        Determines whether the defendant should be released on bail or by some other means

·        May accept a plea of guilty, not guilty, or nolo contendere.

 

Bail

 

Bail: Money or some other security provided to the court to ensure the appearance of a defendant at every subsequent stage of the criminal justice process. Bail may also be used for preventive detention.

 

The U.S. Supreme Court has held that bail is a traditional right of defendants and that bail may not be used as a punishment prior to conviction.

 

Bail Reform Act of 1984:

·        Mandated that no defendant be kept in detention simply because he/she could not afford bail

·        Established the presumption of ROR where a defendant is bailable

·        Required that community safety, as well as the risk of flight, be considered.

 

The U.S. Supreme Court has upheld the Bail Reform Act’s provision on preventive detention as well as similar provisions at the state level in United States v. Salerno.

 

A study has shown that 40% of defendants failed bail because they-

·        Failed to appear for scheduled hearings

·        Remained fugitives for one year after their court date

·        Committed new felonies while out on bail

 

Release on recognizance (ROR): A non-monetary and conditional pretrial release of a defendant. Usually defendants must meet certain criteria established by the court. A pretrial investigation is usually the method through which it is determined if a defendant meets these criteria.

 

Pleas

 

Types of Pleas:

·        Guilty. (90% plead guilty prior to the trial stage.)

·        Not guilty.

·        Nolo contendere

 

To accept a guilty plea a judge must:

·        State to the defendant the constitutional rights waived (e.g., right to cross examine witnesses)

·        Believe the facts of the case justify a plea of guilty

·        Ensure the plea is made voluntarily

·        Inform the defendant of his right to counsel

·        Inform defendant of the possible sentencing outcomes

 

Once a guilty plea is accepted, the judge generally sets a sentencing date in felony cases. A judge may sentence a person immediately in misdemeanor cases. If a not guilty plea is entered, a judge then sets a trial date.

 

Plea bargaining is the exchange of prosecutorial and judicial concessions for a plea of guilty.

Four types of plea bargaining:

1.      the initial charge is reduced

2.      the number of counts against a defendant are reduced

3.      the prosecutor may ask for a lenient sentence

4.      the charge may be amended to another charge

 

Pros-

·        reduced costs

·        administrative efficiency of the courts is enhanced

·        the prosecution may devote more time to serious cases

·        the defendant gets a good deal

 

Cons-

·        causes defendants to waive their constitutional rights

·        innocent people may accept jail if convinced harsher sentences are possible

·        victims are not always adequately compensated

 

Legal issues:

·        Can a judge accept a guilty plea from a person who refuses to talk? No. According to Boykin v. Alabama, an affirmative action, such as a verbal statement, must exist on the record before a judge may accept a guilty plea.

·        Can a guilty plea be accepted by a person who maintains his innocence? Yes. North Carolina v. Alford, 1970.

·        Must a prosecutor keep his promise in order for a plea bargain to be upheld? Yes. In Santobello v. New York, the Supreme Court held that the failure of a prosecutor to keep his promise was grounds for the reversal of a plea bargain. In Ricketts v. Alabama, the Court also held that defendants must uphold their ends of a bargain.

·        May statements by a defendant made during the plea bargain process be used against him in trial? Yes. In U. S. v. Mezzanatto, the Court held that statements made during the plea bargain process may be used in the impeachment process.

 

Pretrial Diversion: Programs such as community service in which defendants may be placed in lieu of a trial or conviction.