Crim B4
Chapter 10
Pretrial Process
CHAPTER OVERVIEW
The pretrial process always begins with an initial appearance. This is where, at a minimum, the accused is advised of the charges against him or her. In a misdemeanor case, the trial may take place at this stage. Also, the accused may be advised of his or her privilege against self-incrimination as well as the right to appointed counsel, if he or she is indigent.
The second section of the chapter explains the purpose and the process of the probable cause hearing. After the initial appearance, a probable cause hearing may be required. If the defendant is arrested without a warrant, a separate court hearing may be held to determine whether there was probable cause to arrest. This determination can be made independently of any other hearing.
The third section summarizes bail and other types of pretrial release.
Following the probable cause hearing is the pretrial release determination. The accused may be released on bail, in which case he or she deposits a certain amount of money with the Court (possibly through a bail bonds agent) as an incentive to show up for later hearings. Failure to show up will result in, among other things, forfeiture of the bail money. A defendant can also be released on his or her own recognizance (ROR). At the other extreme, a defendant who is presumed to pose a significant risk of flight may be held without bail. This tactic is known as preventive detention. Three different criteria are considered in making the pretrial release determination: the accused’s (1) flight risk, (2) level of dangerousness, and (3) financial status.
The fourth section explains the purpose and process of the preliminary hearing. A preliminary hearing is generally not required, however, if (1) the defendant waives it or (2) the prosecutor proceeds by indictment. In the latter instance, the grand jury essentially serves as an appropriate check on the charging decision.
The fifth and final section summarizes the arraignment process. After the preliminary hearing (or grand jury indictment), the arraignment is held. At this stage, the defendant is formally notified of the charges against him or her. In addition, he or she enters a plea of guilty, not guilty, or nolo contendere.
THE INITIAL APPEARANCE
Once arrested and booked, the suspect is then brought before a magistrate or judge in what is known as the initial appearance. Not all jurisdictions require an initial appearance (also referred to as presentment), but for those that do, the suspect must be brought before a judge in a relatively short period of time. Delays of more than 6 hours are usually unacceptable, but they may be necessary on occasion, however, if the time of arrest precludes appearance before a judge (such as 1 a.m. on Monday). The initial appearance is designed to serve a number of purposes. In a misdemeanor case, such as minor in possession, the trial may take place at this stage. In a more serious case, however, the accused will be advised of:
· The reason he or she is being detained (notification of formal charges often comes later at arraignment)
· His or her protection against self-incrimination
· His or her right to appointed counsel, if necessary. The judge may also set bail at the initial appearance, but the bail determination often requires a separate hearing.
THE PROBABLE CAUSE HEARING
In Gerstein v. Pugh, 420 U.S. 103 (1975), the Supreme Court held that the Fourth
Amendment requires a probable cause hearing either before or promptly after arrest. A probable cause hearing before an arrest usually results in an arrest warrant being issued. Recall that an arrest warrant is issued based on a judge’s determination as to whether probable cause existed. No hearing to determine probable cause after such an arrest is necessary because it would be redundant.
Procedural Issues Surrounding the Hearing
The lower court’s decisions leading up to the Supreme Court’s opinion in Gerstein required that a probable cause hearing resemble an adversarial trial, complete with counsel, compulsory process, and other procedures. The Supreme Court reversed the lower court’s decisions as to these issues, declaring that the probable cause hearing is a not a “critical stage” of the criminal process.
Timing of the Hearing
In Riverside County v. McLaughlin, 500 U.S. 44 (1991), the Court provided some clarification. The Court held that for a hearing to comply with the Fourth Amendment, it must take place within 48 hours of arrest.
PRETRIAL RELEASE
If the arrestee does not pose a significant risk of flight and has been arrested for a relatively minor offense, pretrial release is often a sensible decision. However, if it is likely that the arrestee will fail to appear in later proceedings, he or she should probably be jailed, pending additional court proceedings.
Bail is a deposit taken by the Court from the defendant upon release to ensure that they will appear for later proceedings.
In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court stated that the presumption of innocence is merely “a doctrine that allocates the burden of proof” in criminal trials.
The Pretrial Release Hearing
The Constitution does not specify whether bail should be set in a separate hearing, but numerous court decisions seem to suggest a separate hearing is warranted. For example, in Stack v. Boyle, 342 U.S. 1 (1951), the Court stated that as part of the bail determination, the judge should consider “the nature and circumstances of the offense charged, the weight of the evidence against [the accused], [and] the financial ability of the defendant to give bail and the character of the defendant.”
The Pretrial Release Decision
The pretrial release decision has traditionally taken one of three forms. The first and most common results in release on bail. Second, some arrestees are released on their own recognizance, which means they simply promise to show up when required. Finally, in recent years, the courts have adopted a policy of preventive detention for certain individuals, which involves a calculation as to the arrestee’s level of dangerousness and flight risk. Release is denied to those individuals likely to pose a threat to others or not likely to appear at their scheduled hearings.
Release on Bail.
18 U.S.C. Section 3142 provides that “upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death.” Most states have adopted similar language in their constitutions. In response to the inability of many defendants to post bail, the professional bail bond agent has stepped in. These individuals collect a fee from the accused, usually a percentage of bail, and then post a bond so the accused can be released. If the accused shows up at trial, the agent collects his or her fee and gets his or her money back from the Court. If the accused fails to show up, then the agent loses the amount posted. In order to avoid this loss, bail bonds agents employ bounty hunters to catch the accused and bring him or her before the Court.
Release on Recognizance.
Release on recognizance (ROR) means that the accused is released with the assumption that he or she will show up for scheduled court hearings. Naturally, this method of pretrial release is reserved for those individuals who pose a minimal risk of flight.
Preventive Detention: Denying Pretrial Release.
The preventive detention statute, which authorized denial of bail to dangerous persons charged with certain offenses for up to 60 days (D.C. Code 1970 Section 23-1322). Then, Congress passed the federal Bail Reform Act, which authorized judges to revoke pretrial release for firearms possession, failure to comply with curfew, and failure to comply with other conditions of release. The act also permitted detention for up to 10 days of an individual who “may flee or pose a danger to any other person or the community” (Section 3142[d]).
Criteria for Release
The Constitution does not guarantee the right to bail. Some people are denied bail, and others are granted bail. Three factors are typically considered by the judge: (1) the accused’s flight risk, (2) the level of dangerousness of the accused, and (3) the accused’s financial status.
Flight Risk.
A delicate balance needs to be struck to ensure the accused’s appearance at trial. Bail should be set at an amount designed to minimize the risk of flight, yet the amount set should not be so much that the accused cannot reasonably afford to pay it, either by cash or by bond.
Dangerousness.
Some defendants are particularly dangerous individuals that pose a threat to society. In these cases, the courts sometimes see fit either to deny bail or to set the amount relatively high because of such perceived dangerousness.
In Schall v. Martin, 467 U.S. 253 (1984). There, the Supreme Court upheld a statute that provided for detention of a juvenile who posed a serious risk of committing a crime while on release. The statute was criticized as essentially amounting to punishment without trial, but the Court decided that punishment only exists when the government’s intent is to punish.
Financial Status.
The courts usually take into account the accused’s financial status in making a bail decision. Failure to do so can lead to irrational bail determinations.
In Schilb v. Kuebel, 404 U.S. 357 (1971), the Supreme Court took it upon itself to decide on the constitutionality of a state statute that provided that a criminal defendant who was not released on his or her own recognizance could (1) deposit 10% of the amount of set bail with the Court, 10% of which would be forfeited to the Court as bail bonds costs, or (2) pay the full amount of bail, all of which would be refunded if the accused showed up at court. The defendant argued that the statute unfairly targeted indigent individuals because they were forced to choose the first option.
Treatment of Pretrial Detainees
If bail is denied, or a defendant is unable to make bail, the defendant is relegated to a pretrial detention facility pending trial. These facilities must only serve the purposes of ensuring appearance at trial and maintaining the security of the facility. Treatment of detainees is unconstitutional if the purpose of that treatment is “punishment.”
THE PRELIMINARY HEARING
The preliminary hearing should be distinguished from the initial appearance, the probable cause hearing, and the pretrial release hearing. It almost always takes place after one of these hearings as well as after the charging decision.
A preliminary hearing is not required by the Constitution (Lem Woon v. Oregon, 229 U.S. 586 [1913]). It is up to each state to determine under what circumstances it is required. Fortunately, most states, as well as the federal government, require preliminary hearings, at least to a certain extent. Whether a preliminary hearing is required typically depends on a jurisdiction’s method of filing criminal charges. In jurisdictions that require that charges be filed in the form of a grand jury indictment, no preliminary hearing is required if the prosecutor secures an indictment within a specified time period.
The Probable Cause Requirement
Assuming a preliminary hearing is required, the prosecutor has the burden of proving that the case should be bound over (handed over) to a grand jury or go to trial. The standard of proof at a preliminary hearing is probable cause. Invariably, this step is confused with the probable cause hearing. The two hearings can be distinguished as follows: A probable cause hearing considers the justification to arrest, whereas a preliminary hearing considers whether probable cause exists to proceed with a trial. This is a critical distinction and is often the reason why there are separate probable cause and preliminary hearings in some states.
Procedural Issues at Preliminary Hearings
Since a preliminary hearing is adversarial in nature, it seems sensible that the right to counsel should apply. According to the Supreme Court in Coleman v. Alabama, 399 U.S. 1 (1970), it does, and the state must provide counsel if the accused is indigent. The Court declared that the preliminary hearing is a critical stage of the criminal process: “Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous and improper prosecution.”
THE ARRAIGNMENT
Once a person has been formally charged, he or she will be arraigned. The purpose of the arraignment is to formally notify the defendant of the charge lodged against him or her. Also at the arraignment, the defendant enters one of three pleas: (1) guilty, (2) not guilty, or (3) nolo contendere. A plea of guilty is an admission by the defendant of every allegation in the indictment or information. Such a plea may be entered for a number of reasons. For example, the defendant may simply elect to admit responsibility. The defendant may also plead guilty after having made a plea agreement with the prosecution. With a guilty plea, the defendant is required to make an allocution, in which the defendant explains to the judge exactly what he or she did and why.
SUMMARY OF PRETRIAL PROCEEDINGS
The discussion has distinguished among five potential pretrial proceedings: (1) the initial appearance, (2) the probable cause hearing, (3) the pretrial release hearing, (4) the preliminary hearing, and (5) the arraignment. The initial appearance usually always takes place, regardless of the method of arrest or even of the charges in question, but it is not constitutionally required.