Chapter 14- The Pretrial Process

DISCOVERY AND INVESTIGATION OF CRIMINAL ACTIVITY

- Law enforcement learns of crime, collects evidence to charge and convict a person they
believe is guilty
ARREST
- Taking of a person to answer criminal charges
- Usually with warrant
- Simply asked to come to police station for some misdemeanors
- Booking once at station: taking biographical info, photo
o Defendant allowed to make phone call
- Held in jail, can post bail prior to hearing if a minor offense
THE COMPLAINT
- Police officer or prosecutor files complaint: a formal document that charges a person with
a crime
o Can use hearsay and circumstantial evidence
- Often produced in support of a request for a warrant
INITIAL APPEARANCE
- Usually brought before a judge w/in 24 hours
- Makes sure proper person on warrant was arrested
- D informed of rights
- Probable cause hearing needed if arrest was warrantless
- Determination if defendant should be released from jail prior to trial
PRETRIAL RELEASE AND DETENTION
Types of Release
- Bail: money or property given as security for a defendants appearance in court, often a
bail bond, may be lost if defendant released does not appear in court
o Common for D to pay nonrefundable 10 percent of bond to bondsman
- Can be released on personal recognizance in misdemeanors and a few felonies
Eighth Amendment
- Protection against excessive bail
- Supreme Court says just b/c defendant cant post the amount doesnt make it excessive
Detention
- Can be detained if theres reason to believe defendant wont show at trial or they pose
risk to others
- Defendant can have adversary hearing, causing govt to show evidence they have to be
detained
PRELIMINARY HEARING
- Second appearance before judge, first court proceeding, decide whether there is probable
cause and enough evidence for the govt to continue with the case and to require the
defendant to post bail or be held for trial
- Can be waived by defendant
- Not constitutionally required
- Can serve as a source of discovery
- Usually only government presents evidence
- Must be held w/in 10 days of initial appearance

THE FORMAL CHARGE

- Information: formal accusation of a crime made by prosecutor
- Indictment: sworn written accusation of a crime, made against person by prosecutor to a
grand jury
o Once made replaces complaint
Indictment and Grand Jury
Purpose of Grand Jury
- Grand jury: persons who receive complaints and accusations of a crime, hear preliminary
evidence on the complaining side, and make formal accusations or indictments
- 12-23 people, selected in same manner as petit jury
- Used to determine if there is probable cause that target committed alleged crime
Procedures of GJ
- Closed: public and defendant not entitled to attend
- Defendant cant present evidence
- Secret, defendant doesnt have right to know what evidence was presented
- Those testifying arent allowed to have counsel in jury room
- Possess power to order people to appear
- Criticized because prosecutor and govt have too much power over them
The Indictment
- All federal prosecutions and infamous (crimes punishable by at least 1 year) be by
indictment
- Can be waived
- Each crime must be made a separate count if there are multiple
- Can be attacked by motion to quash: a request that a judge make a ruling to overthrow
Information
- Filed by prosecutors w/out GJ review
- Prosecutor reviews evidence and determines if a prosecution is warranted
ARRAIGNMENT
- Hearing at which a defendant is brought before judge to hear charges and enter plea
o Guilty, not guilty, nolo contendere
- Plea agreement (plea bargain)- negotiation b/w prosecutor and defendant
o Reduced sentence or dropped charges for plea of guilty
o 90% of felony cases end in plea bargain
- Right to jury trial and to be proven guilty beyond reasonable doubt waived with guilty
plea
o Must be sufficient facts to support defendant did the crime
- Nolo contendere: I do not contest it, treated like guilty, but cant be used in later civil
proceedings
PRETRIAL ACIVITY
Discovery
- Exchange of info b/w prosecution and defense
- Debate on how much info should be shared and at what point
Bill of Particulars: detailed, formal, written statement of charges or claims by a plaintiff or the
prosecutor
- Provides necessary details about charges to prepare a defense

Statements of the Defendant

- Defendant allowed to inspect all recorded statements by them
Criminal Record of Defendant: defendant allowed to have a copy of their criminal record
Documents and Tangible Objects
- Defendants can inspect and copy materials in possession of govt if the item is material to
prep of defense, is going to be used by govt at trial, or was obtained from or belongs to
defendant
Scientific Reports and Tests: all scientific reports and tests in possession of govt must be turned
over to defendant
Statements of Witnesses/Jencks Act: permits defendant to review written or recorded statements
after witness has testified
Depositions
- Oral testimony given under oath not in court
- Allowed in criminal practice under exceptional circumstances, such as if there is
expected absence of a witness
Brady Doctrine: govt must disclose exculpatory evidence
- Can be disclosed at trial, but may be required at pretrial if it would prejudice a defendant
- Violative of due process if prosecutors use perjured testimony or deceive jurors
Freedom of Information Laws
- 9 exceptions where government can withhold disclosure
Motion Practice
Motion to Dismiss/Quash: if defendant believes that the indictment or information is flawed,
usually prosecution allowed to amend charge, no guarantees defendant will not be recharged
Motion to Suppress: hearing held to suppress unconstitutional evidence
- Any testimony by defendant cant be used at trial
- Burden of proof varies by jurisdiction and what is being suppressed
Motion for Change of Venue: change allowed if defendant cant obtain a fair and impartial trial
in pending area
Motion for Severance
- 2 or more defendants can be charged in the same information or indictment
- Can sever defendants if it is necessary for fair trials
- Also, sever offenses
Motion in Limine: request for the other party not to mention or attempt to question a witness
about a certain matter, such as inadmissible evidence
Other Motions
- Motion for protective order: if revealing info required under discovery rule will endanger
case or a life
- Motion for continuance
- Motion for mental examination
Pretrial Conference: court addresses any remaining motions and problems among parties
EXTRADITION AND DETAINERS
- Extradition: one country or state giving up a person to a second country or state when the
second requests the person for a trial on a criminal charge or for punishment after a trial
- Arrests from out of state police allowed in hot pursuit
- Detainer: request or order for the continued custody of a prisoner

REMOVAL: certain criminal cases may be removed from state courts to federal courts
- certain cases are more suited in a federal court, such as cases against federal officers or
members of armed forces