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CHAPTER
10
Pretrial Activities
and the Criminal
Trial
1
Pretrial
Activities
2
Pretrial Activities
 First appearance
 Pretrial release and bail
 The grand jury
 The preliminary hearing
 Arraignment and plea
3
First Appearance **
Defendants are brought before a judge
and:
 Formally notified of the charges
 Advised of their rights
 Given the opportunity to retain a
lawyer or have one appointed to
represent them
 May be afforded the opportunity for
bail
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First Appearance **
…must be held “without unnecessary
delay”. Based on McNabb v. U.S.
(1943), the standard is 48 hours.
…may include a probable cause
hearing.
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Pretrial Release **
 Most defendants are given the
opportunity for pretrial release.
 Pretrial release decisions consider risk of
flight or nonappearance in court and risk
to public safety. Decisions focus on:
Seriousness of pending charges (offense)
 Prior criminal record
 Information about the defendant’s
employment
 Available supervisory options if released

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Pretrial Release Mechanisms **
 Bail – cash deposit
 Deposit bail – courts act as bondsman (percentage
of bail deposited w/ court)
 Release on recognizance (ROR) – written promise
to appear (no cash or property) assessed for danger
 Property bonds – items of value substituted for $$
 Conditional release – requirements imposed
 Third-party custody – agency supervises
defendant and ensures return to court
 Unsecured bonds – defendant agrees to forfeit
assigned bond if they fail to appear – like credit
 Signature bonds – written promise (for
misdemeanor offenses) no assessment for danger
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State and Federal Defendants
Released Before Trial
8
Pretrial Release and Public Safety **
 There’s a movement seeking to reduce the
number of defendants granted pre-trial
release.

Based on a growing concern of future crimes
 Some states enacted danger laws, which
limit the right to bail to certain kinds
of offenders. (safety risk is assessed to
protect the community)
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Grand Juries **
 Approximately half of states use grand juries.
 Grand juries are made of private citizens
(usually 23).
 They hear evidence only from prosecutors.
 Are held in secret, and generally the defendant
is not there.
 They serve as filters to eliminate cases without
sufficient evidence.
 If the majority of grand jurors agree to
forward the indictment, it be comes a “true
bill.”
 May initiate prosecution independent of the
prosecutor.
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Preliminary Hearing **
 Used instead of Grand Juries.
 They give the defendant an opportunity to
challenge the legal basis of his detention.
 A lower court judge summarizes the
charges and reviews the rights of criminal
defendants.
 Competency to stand trial may be
determined.
 Preliminary hearings have many of the
same characteristics as a trial.
11
Arraignment **
 Arraignment is the first appearance
before the court with authority to try
the case.
 Two purposes:
Inform suspect of specific charges
• Allow defendant to enter a plea
•
 Types of pleas:
Guilty
• Not guilty
• Nolo contendere – protects defendant in the event of civil
suit.
•
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Plea Bargaining **
 The process of negotiating an
agreement among the defendant,
the prosecutor, and the court as
to an appropriate plea and
associated sentence in a given
case. (The process involves the
prosecutor, defense attorney and defense) *
 Plea bargaining circumvents the
trial process and dramatically
reduces the time required for the
resolution of a criminal case.
13
Plea Bargaining **
 Negotiated pleas are guilty pleas and result
in conviction.
 Some surveys have found that 90% of all
criminal cases prepared for trial are
eventually resolved through a negotiated
plea. ** (most common resolution of a
criminal case is through plea bargaining)
 After a guilty plea has been entered, it
may be withdrawn with the consent of the
court.
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Criminal
Trials
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The Nature and Purpose of
the Criminal Trial:
 The trial process is highly
formalized and governed by rules
of evidence and other procedural
guidelines, as well as informal
rules and professional
expectations.
 The purpose is to determine the
defendant’s guilt or innocence.
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Factual vs. Legal Guilt
Factual guilt
The defendant is
actually
responsible for
the crime of which
he is accused.
Legal guilt
The defendant is
found guilty as
charged.
17
Adversarial System
The philosophy of the adversarial
system is that the most just outcomes
will occur when both sides are
allowed to argue their cases
effectively and vociferously before a
fair and impartial jury.
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Stages in a Criminal Trial **
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Trial Initiation and the
Speedy Trial
The Sixth Amendment guarantees
that in “all criminal prosecutions,
the accused shall enjoy the right
to a speedy and public trial.”
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The Speedy Trial:
Supreme Court Cases
Klopfer v. North Carolina (1967)
 A speedy trial is a fundamental
guarantee of the U.S. Constitution.
Baker v. Wingo (1972)
 The 6th Amendment can be violated
even if the defendant does not object to
delays.
Strunk v. U.S. (1973)
 Denial of a speedy trial should result in
dismissal of all charges.
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Federal Speedy Trial Act (1974)**
 Prosecution must seek indictment or
information within 30 days of arrest.
 Trial must begin within 70 days after
indictment.
 Trial start can extend to 180 days if the
defendant is not available or if
witnesses cannot be called within the 70
day limit.
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Federal Speedy Trial Act Cases
U.S. v. Taylor (1988)

Court ruled that when delay is the result of actions
by the defendant, the 70 day rule does not apply.
Doggett v. U.S. (1992)

“Even delay occasioned by the Government’s
negligence creates a prejudice that compounds over
time, and at some point, as here, becomes
intolerable.”
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State Speedy Trial Acts
 Many states have enacted their own
speedy trial legislation.
 Most set a limit of 90 or 120 days as a
reasonable period of time for a trial to
begin.
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Jury Selection
 The Sixth Amendment guarantees
the right to an impartial jury.
 Jurors are expected to be
unbiased and free of preconceived
notions about guilt or innocence.
 Prosecution and defense attorneys
question potential jurors during
the process of voir dire.
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Jury Selection: Ensuring
Impartiality **
Both the prosecution and defense
can use challenges to remove
prospective jurors from jury pool.
 Challenge to the array
 Challenge for cause
 Peremptory challenge
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Challenge to the Array **
 Claims that the pool from which
potential jurors are to be selected
is not representative of the
community.
 Argued in a motion before voir
dire.
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Challenge for Cause
 Claims that a prospective juror
cannot be impartial or fair.
 Typically, each side has an
unlimited number of such
challenges.
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Peremptory Challenge
… removes potential jurors without
the need to give a reason. Typically,
each side has a limited number of
such challenges.
Federal government and states vary in the
number of such challenges allowed.
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Scientific Jury Selection
…seeks to take advantage of
peremptory challenges by using
social science research techniques
to select members of a jury.
 Focus groups and surveys are used to
assess the likelihood that an individual
will be predisposed to a particular
outcome.
 Some people criticize this.
30
Sequestered Jury
… is a jury that is isolated from the
public during the course of a trial
and throughout the deliberation
process.
31
Jury Selection and Race
Batson v. Kentucky (1986)
 the use of peremptory challenges
for purposeful discrimination
constitutes a violation of the
defendant’s right to an impartial
jury.
32
Opening Statements
 The initial statement of the
prosecution or the defense
attorneys, describing the facts that
he or she intends to present during
trial to prove the case.
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The Presentation of
Evidence
 Evidence—anything useful to a
judge or jury in deciding the facts
of a case.
 First, prosecution presents its
evidence. The defense follows.
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Types of Evidence **
 Direct evidence

Facts that need not be interpreted (photographs, testimony)
 Circumstantial evidence

Requires judge or jury to make inferences or draw
conclusions
 Real evidence

Physical material or traces of activity, introduced by means
of “exhibits” (weapons, DNA, tire track impressions) **
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The Evaluation of
Evidence
Judges decide which evidence can be
presented to the jury.
Evidence must be relevant.
 The probative value must be weighed against
the potential inflammatory or prejudicial
qualities of the evidence.

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The Testimony of
Witnesses **
Testimony—oral evidence presented by
witnesses, including victims, police
officers, the defendant, and specialists.
Witnesses must be competent to testify.
th
 The defendant has the 5 Amendment
right not to take the stand.
 Witnesses are subject to direct and cross
examination.
 Witnesses who lie under oath commit perjury.
(false statement made by sworn witness)

37
Child Witnesses
37 states allow the use of videotaped
testimony.
32 states allow the use of closed
circuit television.
38
The Hearsay Rule **
 Hearsay is anything that is not based on
the personal knowledge of a witness. **
 The hearsay rule prohibits the use of
“secondhand evidence”
 Exceptions to the hearsay rule:
Dying declarations
 Spontaneous statements
 Out-of-court statements (“past recollection
recorded”)

39
Closing Arguments
 An oral summation of a case
presented to a judge, or to a judge
or jury, by the prosecution or by
the defense in a criminal trial.
40
Judge’s Charge to the Jury
 After closing arguments, the judge
charges the jury to:
Select a foreperson
 Deliberate
 Return with a verdict

 Judge may remind juries of statutory
laws and requirement of impartiality.
41
Jury Deliberations and the
Verdict
 Deliberations may take minutes;
some take weeks.
 Many jurisdictions require a
unanimous verdict.
 Some juries are unable to reach a
verdict. These deadlock juries are
called hung juries.
42
Problems with the Jury System
 Many jurors are ignorant of the law
and legal precedent.
 Some jurors personal opinions, biases,
and emotions interfere with
objectivity.
 Some jurors fear personal retaliation.
Some critics of the jury system call for
professional juries.
43
Improving the Adjudication
Process
Improving the process may involve:
Greater unification and reducing the
number of jurisdictions.
 A growing number of court-watch
citizen groups.
 More accurate statistical measurement
of court performance.

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