Chapter 10
From Arrest and Bail Through Arraignment
LEARNING OBJECTIVES
After reading this chapter, students should be able to:
1. Define the two methods of estimating the amount of crime in the United States.
2. Discuss how arrests made by the police impact the criminal court process.
4. List the four most common ways that defendants secure pretrial release.
5. Compare and contrast “law on the books” and “law in action” approaches to bail
7. Contrast how the “law on the books” approach to criminal justice and the “law in
action” perspective offer contrasting views of the preliminary hearing.
9. Delineate the three major reasons for case attrition.
10. Describe the four layers of the criminal justice wedding cake.
LESSON PLAN
Correlated to PowerPoints
I. Crime
Learning Objective 1: Define the two methods of estimating the amount of
crime in the United States.
A. There are two official measures of crime in the United States: UCR and
NIBRS.
B. UCR
i. The first is the Federal Bureau of Investigation’s (FBI) Uniform Crime
ii. The FBI then compiles that data and disseminates statistics in a number
of publications. The most comprehensive of these is the annual
publication Crime in the United States.
iii. The UCR divides criminal offenses into two categories: Type I offenses
and Type II offenses.
iv. The UCR program also gathers statistics on index crimes that are cleared
by the police via arrest, providing a rough measure of police performance
in solving crimes.
C. NIBRS
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covered in the traditional UCR Type I and Type II categories, plus a few
others.
iii. A lot of data is gathered about each incident, including the location of the
crime; whether the crime was completed or attempted; the type of
weapon used; the type and value of properly damaged or stolen; and the
personal characteristics of both the offender and the victim.
iv. Another difference between UCR and NIBRS concerns the hierarchy
offenses.
D. Problems with Crime Measurement
i. A major weakness of both the UCR and NIBRS is that they are based
only on crimes known to the police.
ii. Of the personal and household offenses measured in the National Crime
Victimization Survey’s yearly sample of households, only half of the
violent crimes and almost two-thirds of the property crimes were not
reported to the police (Langton, Berzofsky, Krebs, & Smiley-McDonald,
2012; Truman & Morgan, 2016).
See Assignments 1 and 2
II. Arrest
Learning Objective 2: Discuss how arrests made by the police impact the
criminal court process.
A. The term arrest is difficult to define because it is used in different ways.
B. In its narrowest sense, arrest is defined as the taking of a person into custody
for the commission of an offense as the prelude to prosecuting him or her for
that offense.
C. In its broader sense, arrest means any seizure of a person in which that person
would not reasonably feel free to terminate the encounter (United States v.
Drayton, 2002).
D. Quality of Arrests
i. The police have a lot to do with what happens in court after arrest. The
strength of the evidence police provide to prosecutors is one of the most
important factors influencing whether prosecutors file criminal charges
(Holleran, Beichner, & Spohn, 2009; O’Neil, Tellis, & Spohn, 2015).
Media Tool
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See Assignment 3
III. Initial Appearance
Learning Objective 3: List the four ways that criminals are formally charged in
court and the major actors in each of these important documents.
A. After a person has been arrested, a law enforcement officer must take the
arrested person before a magistrate for an initial appearance.
B. Statutes in different jurisdictions require that this be done promptly, using
C. As a general rule, the Supreme Court expects an initial appearance to occur
within 48 hours of a warrantless arrest, inclusive of weekends (County of
Riverside v. McLaughlin, 1991).
D. Most misdemeanor defendants enter a plea of guilty at their initial
appearance and are sentenced immediately.
E. For those arrested on a felony, however, a plea is not possible because the
initial appearance occurs in a trial court of limited jurisdiction, which has no
authority to accept a plea. Thus, the initial appearance is typically a brief
affair, as little is known about the crime or the alleged criminal.
IV. Charging
A. The criminal court process begins with the filing of a formal written
accusation alleging that a specified person or persons committed a specific
Police and prosecutors regularly discuss cases before charges are filed.
ii. However, in many cases, prosecutors decline to file charges against those
arrested by police.
E. Law in Action: Police Influence
i. Although the prosecutor has the legal authority to dominate the charging
process, the police often influence the prosecutor’s decision. Police may
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pressure prosecutors to overcharge defendants, although little pressure is
needed as overcharging helps with plea-bargaining.
F. Courts and Controversy: Charging Decisions
i. Police departments sometimes object when prosecutors set high standards
for charging, because they see case rejections as an implicit criticism of
the arresting officer for making a “wrong” arrest.
ii. Prosecutorial screening can have consequences at the polls. In one
1992).
See Assignment 4
V. Bail
Learning Objective 4: List the four most common ways that defendants secure
pretrial release.
Learning Objective 5: Compare and contrast “law on the books” and “law in
action” approaches to bail setting, including the overall effects of the bail system
on criminal defendants and their cases.
Learning Objective 6: Explain the role bail agents play in the criminal justice
system.
A. Bail is a guarantee that the accused, once released from custody, promises to
return to court as needed.
B. Law on the Books: The Monetary Bail System
i. The Eighth Amendment does not specifically provide that all citizens
have a right to bail. Rather, if bail is granted, it must not be excessive.
ii. Bail procedures vary by jurisdiction and according to the seriousness of
the crime.
iii. Once bail has been set, a defendant can gain pretrial release in four basic
ways: release on recognizance (ROR); cash bond; property bond; and
bail bond.
iv. Congress amended the Bail Reform Act in 1984 to clarify that, when
setting bail, a judge may remand arrestees to preventive detention. Thus,
C. Law in Action: The Context of Bail Setting
i. Trial court judges have a great deal of discretion in fixing bail.
D. Bail Agents and Bounty Hunters
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i. If a judge grants bail, many defendants, who lack the financial resources
to post cash or property as bail, turn to the services of commercial bail
agents. If the defendant does not appear for subsequent court
proceedings, the bail agent is responsible for the full amount of the bond.
ii. As a condition of posting bail, bail agents require that their clients sign a
E. Effects of the Bail System
i. Defendants who cannot make bail may be at a disadvantage during the
criminal justice process. Many jails are substandard since efforts to
improve jail conditions are typically low on the priority list of local
officials. Some studies have found clear differences between the
defendants who await trial in jail and those who are released.
ii. Generally speaking, Hispanics make up the group most likely to be
detained in jail, whites are the least likely to be detained, and African–
Americans are somewhere in the middle.
iii. Pretrial detention has a great impact on the legal processing of
defendants: viewed from the perspective of maintaining the plea-
bargaining system, pretrial detention and demoralizing conditions in jails
are highly effective.
iv. There is widespread agreement in the literature that jailed defendants are
more likely to be convicted and (once convicted) more likely to be
sentenced to prison than those who have obtained pretrial release (Ares,
Rankin, & Sturz, 1963; Cohen & Reaves, 2007; Phillips 2007, 2008;
Reaves, 2013; Stevenson, 2016).
v. Defendants who have gained pretrial release do not always appear in
court when required. Skipping bail has several consequences. First, bail is
forfeited. Second, a warrant is issued for the suspect’s arrest. This
vi. Defendants who fail to appear do not always intend to miss their court
dates. A number of defendants do not show up because they were not
given clear notice of the next appearance date. Another way in which
courts themselves contribute to nonappearances is by lengthy delay in
disposing of cases.
vii. As the time from arrest to trial increases, the rate of nonappearances rises
even faster.
F. Bail Reform
i. Roughly 25 to 40 percent of current inmates are being held for pretrial
detention are in jail because they cannot afford bail. The current bail
system has a disproportionate impact on the poor and members of racial
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and ethnic minorities. Some states have eliminated all use of commercial
bail in securing pretrial release.
G. Pretrial Release Services
i. In addition to monetary bail, state judges are also authorized to impose
non-financial conditions of release.
ii. Such conditions usually include supervision programs that monitor the
arrestee’s associations; place of residence; employment status;
participation in drug, alcohol, or mental health programs; and access to
firearms.
iii. This supervision is typically provided by pretrial release services
programs.
Class Discussion/Activity 2
What role do bail agents play in the criminal justice system?
Class Discussion/Activity 3
What are the types of bail available to criminal defendants? What are the impacts
of bail on the criminal justice system? What role do bail agents play in the
criminal justice system?
Media Tool
Read the case of County of Riverside v. McLaughlin (89-1817), 500 U.S. 44
(1991):
within 48 hours of his/her arrest.
impact will be on prisons in New York.
Media Tool
Listen to the NPR story New York Bail Reform is Part of Trend Away from Cash
What If Scenario
Imagine you were to appear before the U.S. Senate Judiciary Committee to argue
for bail reform and the end of a monetary bail system. What would your
arguments be?
What If Scenario
If the concept of bail for pretrial release was completely eliminated, what would
happen to our system of justice? Be specific.
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See Assignment 5
VI. Preliminary Hearing
Learning Objective 7: Contrast how the “law on the books” approach to criminal
justice and the “law in action” perspective offer contrasting views of the
preliminary hearing.
A. In most states, any person who has been arrested for a felony and has not
been indicted by a grand jury has the right to a preliminary hearing.
B. At the preliminary hearing, the magistrate must determine whether probable
cause exists to believe that a felony was committed, and that the defendant
committed it.
C. Law on the Books: Weighing Probable Cause
i. During a preliminary hearing, the state does not have to prove the
defendant guilty beyond a reasonable doubt, as would be required during
a trial. Rather, the prosecutor needs only to establish probable cause that
a crime has been committed, and that the defendant committed it.
ii. If the magistrate finds probable cause to believe that the defendant
committed the offense, the magistrate binds over the defendant to the trial
court for adjudication of the felony charges.
iii. If the magistrate does not find probable cause, the magistrate dismisses
the complaint and releases the defendant.
iv. A dismissal at this stage does not invoke the constitutional safeguard
against double jeopardy.
D. Law in Action: Variations in Using the Preliminary Hearing
i. Defense attorneys weigh several factors in deciding whether to demand a
preliminary hearing or waive it (Flemming, 1986b; Prosser, 2006). The
tactical decision of holding or waiving the preliminary hearing highlights
the complexity of the preliminary hearing from the law in action
perspective.
ii. Variability makes it difficult to generalize about the importance of the
preliminary hearing, but studies do reveal four major patterns.
iii. In some jurisdictions, preliminary hearings are almost never held. In
Lippman, 1970; Thomas, 2014; Washburn, 2008).
VII. Grand Jury
Learning Objective 8: Explain why some jurisdictions use grand juries
extensively and others do not.
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A. Grand juries make accusations while trial juries decide guilt or innocence. In
Hurtado v. California (1884), the Supreme Court held that states have the
option of using either an indictment or information.
B. Today, grand juries in every U.S. state and the District of Columbia can
investigate criminal activity. U.S. jurisdictions differ with regard to how
grand jury indictments operate.
C. Law on the Books: Shield and Sword
i. The two primary functions of grand juries have been aptly summarized in
the phrase “shield and sword” (Zalman & Siegel, 1997). Shield refers to
ii. If the grand jury believes grounds for holding the suspect for trial are
present, they return a true bill.
iii. If they find the charges insufficient to justify trial, they return a no true
bill.
iv. Many legal protections found elsewhere in the criminal court process are
not applicable at the grand jury stage. In furtherance of their investigative
powers, grand juries have the authority to grant immunity from
prosecution.
v. The investigative powers of the grand jury to gather evidence are also
seen in its subpoena power. Failure to comply with a subpoena (or offer
of immunity) is punishable as contempt (of court).
D. Law in Action: Prosecutorial Domination
i. The work of the grand jury is shaped by its unique relationship with the
prosecutor. In theory at least, the prosecutor functions only as a legal
E. Courts and Controversy: Reform the Grand Jury?
i. The grand jury system has been the object of various criticisms, with
some calling for the abolition of the grand jury, and others calling for
serious reforms.
See Assignment 6
VIII. Arraignment
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A. Arraignment occurs in the trial court of general jurisdiction. During the
arraignment, the defendant is formally accused of a crime and is called upon
to enter a plea.
B. The initial appearance and arraignment are similar in that the defendant must
C. The arraignment is rarely a major decision-making stage in the process. The
arraignment is important because it signifies to all members of the courtroom
work group that the defendant is in all probability guilty, and that the
likelihood of being found not guilty is now slim.
IX. Law in Action Perspective: Case Attrition
Learning Objective 9: Delineate the three major reasons for case attrition.
Learning Objective 10: Describe the four layers of the criminal justice wedding
cake.
A. The law on the books perspective suggests a mechanical process; cases move
almost automatically from one pretrial stage to the next.
B. In contrast, the law in action perspective emphasizes a dynamic process;
cases are likely to be eliminated during these early stages.
C. For every 100 arrests, 8 are diverted and 23 are dismissed by the prosecutor
through a nolle prosequi (no prosecution).
D. Why Attrition Occurs
i. Case attrition is the product of a complex set of factors, including the
relationships among the major actors in the criminal justice system, the
patterns of informal authority within the courtroom work group, the
backlog of cases on the court’s docket, and community standards defining
serious criminal activity.
ii. Legal judgments are the most important reason that cases drop by the
wayside after arrest and before arraignment.
iii. Case attrition also results from general prosecutorial policies about
priority of cases. Prosecutors devote greater resources to more serious
offenses (Gilboy, 1984; Jacoby et al., 1982).
iv. Personal standards of justice—attitudes of members of the courtroom
v. Even if the evidence is strong, defendants might not be prosecuted if their
conduct and background indicate that they are not a genuine threat to
society.
E. The Criminal Justice Wedding Cake
i. The tyranny of criminal justice statistics is that they treat all cases the
same way when calculating the crime rate. To understand case attrition,
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Samuel Walker (2011) suggested that it is useful to view criminal justice
as a wedding cake.
ii. The wedding cake model is based on the observation that criminal justice
officials handle different types of cases very differently. The cases in
each layer have a high degree of consistency. The greatest disparities are
found between cases in different layers.
iii. The top layer of the criminal justice wedding cake consists of a few
celebrated cases.
iv. The second layer of the wedding cake consists of serious felonies.
v. The third layer of the cake consists of lesser felonies.
vi. The bottom layer of the criminal justice wedding cake is a world unto
itself, consisting of a staggering volume of misdemeanor cases, far
Class Discussion/Activity 5
What are the four layers of the “criminal justice wedding cake”?
See Assignment 7
KEY TERMS
arraignment: The stage of the criminal process in which the defendant is formally told
the charges and allowed to enter a plea.
arrest: The taking of a person into custody for the commissions of an offense as the
prelude to prosecuting him for that offense.
arrest warrant: An official document, signed by a judge, accusing an individual of a
crime and authorizing law enforcement personnel to take the person into custody.
bench warrant (capias): A warrant issued when defendants who have gained pretrial
release fail to appear in court when required.
bind over: If at the preliminary hearing the judge believes that sufficient probable cause
exists to hold a criminal defendant, the accused is said to be bound over for trial.
cash bond: The accused must post either the full amount of cash bail with the court or a
percentage of it in the form of a cash bond. All of this money will be returned when all
court appearances are satisfied. Because it requires a large amount of cash, this form of
bail is seldom used.
charging document: An information, indictment, or complaint that states the formal
criminal charge against a named defendant.
grand jury: A group of citizens who decide whether persons accused of crimes should
be indicted (true bill) or not (no true bill).
hierarchy rule: Rule that requires counting of only the most serious offense for reporting
crimes to the UCR.
immunity: Allows an accused to avoid prosecution for criminal offenses.
index crimes: Category of crimes reported to the UCR including murder, nonnegligent
man-slaughter, forcible rape, robbery, aggravated assault, burglary, larceny/theft, motor
vehicle theft, and arson.
indictment: A formal accusation of a criminal offense made against a person by a grand
jury.
information: A formal accusation charging someone with the commission of a crime,
signed by a prosecuting attorney, which has the effect of bringing the person to trial.
no true bill: The decision of a grand jury not to indict a person for a crime.
preliminary hearing: A pretrial hearing to determine whether there is probable cause to
hold the accused for the grand jury.
pretrial release services programs: A program that monitors the arrestee’s associations;
place of residence; employment status; participation in drug, alcohol, or mental health
programs; and access to firearms.
preventive detention: Holding suspects without bail if they are accused of committing a
dangerous or violent crime and locking them up is deemed necessary for community
safety.
probable cause: A fair probability, under the totality of the facts and circumstances
known that the person arrested committed the crime(s) charged.
property bond: Most states allow a defendant (or friends or relatives) to use a piece of
property as collateral. If the defendant fails to appear in court, the property is forfeited.
subpoena power: An order from a court directing a person to appear before the court and
to give testimony about a cause of action pending before it.
transactional immunity: Absolute protection against prosecution for any event or
transaction about which a witness is compelled to give testimony or furnish evidence.
true bill: A bill of indictment by a grand jury.
Type I offenses: Category of crimes reported to the UCR including murder, nonnegligent
man-slaughter, forcible rape, robbery, aggravated assault, burglary, larceny/theft, motor
vehicle theft, and arson.
Uniform Crime Reporting (UCR): Most publicized and widely used measure of crime,
which comes from the FBI; policing agencies report measures of crime within their
jurisdictions to the FBI, who, in turn, compile and disseminate the statistics.
LECTURE NOTES
The Uniform Crime Reporting system is a measure of crime created and operated by the
Federal Bureau of Investigations. It is made up of Type I and Type II offenses as defined
by the FBI. Type I focuses on violent felony crimes. Type II covers mainly property
crimes and less violent types of crimes. Statistically, a large number of prosecuted cases
are felony cases seen from arrest to arraignment.
Arrest is defined as the taking into custody for the commission of an offense as a prelude
to prosecuting him or her for that offense. The police have a lot to do with what happens
in court after arrest. The strength of evidence provided by the police is one of the most
important factors influencing whether prosecutors file criminal charges.
The initial appearance of a defendant is normally conducted within 48 hours of the arrest.
Prosecutors maintain a high level of control over all cases that enter a courtroom. They
have the ability to dismiss charges made against a defendant, allow defendants to plea
bargain, or bring a defendant to trial. The prosecutor in some cases has the propensity to
be swayed by a law enforcement officer and by the level of evidence a case is presenting.
Officers and prosecutors often discuss a case prior to the court appearance of a defendant
to determine if a case will move forward or be dismissed. Additionally, based on a level
of evidence and the level of persuasion an officer places on a prosecutor, the case may
move forward simply by stacking charges.
Bail is a guarantee. In return for being released from jail, the accused promises to return
to court as needed. If the defendant appears in court when requested, the money or
property is returned. If he or she fails to appear, the security can be forfeited. According
Because most defendants do not have the cash or property to post bond, commercial bail
agents will post the bond in exchange for a 10 percent non-refundable fee. The process of
bail setting is not neutral. Some of the consequences of the bail system include:
disadvantages in the criminal justice system for those who cannot post bail, substandard
jail conditions, disadvantages for minorities, failures to appear, higher rates of conviction
and longer sentences for incarcerated defendants. In addition to monetary bail, judges can
impose non-financial conditions such travel restrictions or monitoring. Pretrial release
services programs generally monitor such conditions.
According to the law on the books perspective the preliminary hearing provides an
opportunity for the magistrate to determine if probable cause exists to believe a felony
was committed and that the defendant committed it. Law in action recognizes that several
During the arraignment, the defendant is formally accused of a crime and is called upon
to enter a plea. The law on the books perspective suggests a mechanical process whereas
the law in action perspective emphasizes a dynamic process. Case attrition relies on legal
judgments, policy priorities, and personal standards of justice.
There are four main layers in the wedding cake model of justice. The first is composed of
the most serious types of cases, often involving well-known people, called the Celebrated
Cases layer. The second is the layer known as Serious Felonies, which includes those
POSSIBLE DISCUSSION POINTS FOR CLASS DISCUSSION QUESTIONS
1. The law on the books emphasizes the judge’s role in determining whether probable
2. The bail agent provides a specialized form of insurance and makes a profit by
3. The four most common ways defendants secure pretrial release are: (1) release on
recognizance (ROR), (2) cash bond, (3) property bond, and (4) bail bond through the
services of a commercial bail agent. Bail affects the processing of criminal defendants
4. Grand juries are used extensively in jurisdictions where the constitution requires a
grand jury indictment in all felonies. In jurisdictions that do not have this
5. (1) celebrated cases; (2) serious felonies; (3) lesser felonies; and (4) misdemeanors.
ASSIGNMENTS
1. Research the FBI website to determine what crimes are considered Type I and Type II
2. “UCR vs. NIBRS”
3. How do the arrests made by the police impact the criminal court process? In what
ways can the police pressure the prosecutor to charge offenders? How can prosecutors
resist this pressure? Discuss these issues in your classroom.
4. “Prompt Hearing”
5. Interview a real bail agent (or a former one), asking them questions about their typical
duties and experiences. Also ask them about their views on the way bail agents are
portrayed in fictional accounts and in reality shows (i.e., Dog the Bounty Hunter).
Then, watch a clip from a fictional TV show or movie about bail agents. Finally,
watch a clip from a reality TV show about bail agents. Write an essay describing the
role bail agents play in the criminal justice system, including detailed information
about what the actual bail agent told you. Compare this to what you saw in the
fiction/reality TV clips. Does the media sensationalize bail agents, or do they
accurately portray the job?
6. “A Few Facts About Grand Juries”
7. Research a local case in your area that was/is considered a serious felony case as per