Chapter 7 - The Pretrial Process

Abstract

Arrest and booking are processes in which the suspect is taken into custody and formally charged with a criminal offense. Arrest and booking procedures ensure that suspects are treated in a systematic way that allows the criminal justice system to track their progress through the pretrial process. Suspects are apprised of the offense they are being charged with and given an opportunity to understand their rights. The Eighth Amendment prohibits “excessive bail” on the presumption that a person is innocent until proven guilty. Bail helps prevent jail overcrowding and reduces the expense of keeping people in jail. Bail helps suspects remain in the community, retain employment, and prepare for their cases. The Eighth Amendment does not guarantee bail, states that “Excessive bail shall not be required.” The diversion of a case may happen at many points along the criminal justice process, and it depends upon the characteristics of each case. Cases are often diverted to treatment or rehabilitation programs to help suspects avoid the stigma of a criminal conviction and receive help in addressing the problems that brought them to court. Common diversion programs include drug and alcohol counseling, community service, and educational programs. Compare and contrast the advantages and disadvantages of plea bargaining for prosecutors, defendants, and society. Plea bargaining has the following benefits for all those concerned with the criminal justice system: guilty defendants may make deals for lighter sentences; the court docket is kept manageable so that innocent defendants can have trials; prosecutors may claim victory in cases without having to expend court resources; defense attorneys and public defenders are able to spare their clients the full effects of the law in sentencing; court costs are reduced for taxpayers. A criticism of plea bargaining is that it gives prosecutors too much leverage in extracting guilty pleas from defendants. A prosecutor who does not have a convincing case may offer a plea bargain to a defendant to entice him or her to accept a lesser sentence rather than risk a longer sentence should the case go to trial. Prosecutors may also overcharge in order to plea the case down to a lesser charge. Plea bargaining also often leaves victims dissatisfied. The preliminary hearing allows the prosecutor to establish probable cause. This entails showing that a specific offense has been committed and that there is enough evidence to establish that the accused is the likely suspect. The preliminary hearing is an adversarial procedure in which the defense can challenge the evidence and cross-examine witnesses. The prosecution does not have to establish beyond a reasonable doubt that the defendant is guilty but only that there is enough evidence to claim probable cause. The prosecutor exercises broad discretion in determining which cases are brought before the grand jury, and only the prosecutor presents evidence. The defense or witness attorneys play no part in the proceedings. The rules of evidence do not apply to grand jury proceedings, nor do suspects’ or witnesses’ rights to be secure from unreasonable searches and seizures, to confront opposing witnesses, or to testify in their own defense. Prosecutors may resubmit evidence to another grand jury. Prosecutors can even arrange for witnesses to be subpoenaed so quickly they have no opportunity to retain or consult with a lawyer. An arraignment is a defendant’s first appearance before a judge. The charges against the defendant are read; the defendant receives a written copy of the charges; a lawyer is appointed if the defendant cannot afford one, and the defendant’s plea is entered. The defendant will respond to the charges. The judge will set a schedule for courtroom procedures such as a preliminary hearing, a hearing on pretrial motions, and the trial, as well as deciding any unresolved bail matters. Explain why the pretrial process is an important part of the court system. Pretrial processes constitute a large part of the court’s activities and, in many ways, are more important than the actual trial. Pretrial decisions concern arrests, booking, bail, release on recognizance, plea bargaining and pretrial motions. Pretrial motions may significantly affect the structure of the trial. These motions include attempts to suppress evidence by claiming that it was gathered unlawfully by the police, defense claims of an illegal search or improperly gathered confession, and that the evidence gathered should not be admissible.