CHAPTER TWELVE
COURT PROCEEDINGS I: BEFORE TRIAL
Learning Objectives
After studying this chapter, students should be able to:
2. Understand the objective basis requirements to detain a suspect and go to trial. Know the
difference between criminal complaints, first appearances, and arraignments.
3. Know the various forms of pretrial release. Appreciate the need to balance the right of
4. Know the types of defense counsel understand the scope and limits of the right to
6. Understand and appreciate the importance of pretrial motions and why counsel devotes so
much time to preparing them. Pretrial motions may include arguments to prove double
Lesson Plan
I. The Decision to Charge
Learning Objective 1: Understand the prosecutor’s decision to charge and its significant role in
criminal procedure.
Media Tool
“Ramsey Grand Jury Accused Jon Benet’s Parents in Death, but Prosecutor
Declined to Bring Charges” http://www.foxnews.com/us/2013/10/25/details-1-
indictment-in-jonbenet-ramsey-slaying-to-be-released/
o Fox News report on recently released grand jury indictment.
o Discussion: Discuss the reasons why the prosecutor may have decided not
to bring charges in this case. Based on the reasons for a grand jury listed in
the chapter, should a prosecutor have the authority to refuse to charge an
indictment made by a grand jury? Why or why not?
Class Discussion/Activity
Research the local prosecutor in your area. Does your prosecutors’ office
generally use a preliminary hearing or a grand jury? Are there certain crimes that
grand juries are reserved for? What are those crimes?
A. Prosecutors perform dual roles.
2. They are officers of the court and their mission as officers of the court is to “do justice.”
This may mean diverting suspects into restitution, treatment, or community service.
B. The decision to charge starts the adversarial criminal justice process.
1. Detailed in a complaint, information, or indictment.
C. Prosecutors’ decision to charge focuses on several factors.
2. Selective prosecution.
a. May undermine the legislature’s power to make laws.
b. May undermine impartial law enforcement.
II. Probable Cause to Detain Suspects
Learning Objective 2: Understand the objective basis requirements to detain a suspect and go to
trial. Know the difference between criminal complaints, first appearances, and arraignments.
A. The U.S. Constitution and state laws command that when the following four urgent
1. Defendants are arrested without warrants.
3. They haven’t been charged with any crime.
See Assignment 4
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4. They’re locked up in jail.
B. The Fourth Amendment allows detention long enough (usually no longer than 48 hours)
for police to complete “administrative steps” before taking suspects to magistrates.
III. The First Appearance
Learning Objective 2: Understand the objective basis requirements to detain a suspect and go to
trial. Know the difference between criminal complaints, first appearances, and arraignments.
Media Tool
“Steps in a Trial: Pre-Trial Court Appearances in a Criminal Case”
http://www.americanbar.org/groups/public_education/resources/law_related_education_n
etwork/how_courts_work/pretrial_appearances.html
o American Bar Association website explaining the pre-trial appearance for
misdemeanors and felonies.
o Discussion: Discuss the steps in a pretrial appearance. How comfortable would
the students be if they had to face a pretrial appearance in court? Would most of
them want to have a lawyer to assist them?
A. The criminal complaint authorizes magistrates to conduct the first appearance.
B. Magistrates complete four tasks at the first appearance.
2. Inform defendants of their constitutional rights.
4. Appoint attorneys for indigent defendants.
C. Felony defendants rarely enter a plea at the first appearance; they wait until their
arraignment.
D. Misdemeanor defendants usually plead at the first appearance.
IV. Bail and Pretrial Detention
Learning Objective 3: Know the various forms of pretrial release. Appreciate the need to
balance the right of defendants to be free until proven guilty against keeping the community safe
and bringing criminals to justice.
Learning Objective 4: Know the types of defense counsel understand the scope and limits of
the right to counsel; and appreciate the differences between the rights of those who can afford
lawyers and those who can’t.
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Learning Objective 5: Understand preliminary hearings and grand jury reviews and how they
differ from trials.
Media Tool
“We Need More Bail Reform” http://blog.justicepolicy.org/2013/09/we-need-more-
bail-reform.html
o Guest blog on bail reform on the Justice Policy Institute website.
o Discussion: Discuss the arguments made in the blog for bail reform. What
reforms does the blogger recommend? Do you agree with these proposed
reforms? Why/why not?
Class Discussion/Activity
There is no constitutional right to bail. Should there be? Why/why not? If there was
a constitutional right to bail what would bail look like?
What If Scenario
What if the only way to attain pretrial release for a crime was to post a cash bond?
What would the outcomes of such a system be? Be sure to discuss both positive and
negative outcomes.
A. Most defendants are released on bail while they wait for trial or plea bargains to be
completed.
B. Conditions judges attach to release on bail include:
1. Release on recognizance (ROR):The defendant promises to appear in court.
2. Money bond: The defendant pays usually 10% of the bond amount.
C. In addition to the loss of freedom, being locked up before trial has other consequences
for defendants.
2. Affects defendants and their families.
4. Loss of reputation.
D. Pretrial release can be a risk to society. A defendant may:
2. Commit new crimes
3. Expose the community to anxiety, fear, and outrage
E. Courts try to strike a balance between the constitutional rights of bailed and detained
defendants and legitimate community interests in bailed and detained defendants.
F. Bail and the Constitution.
1. There’s no constitutional right to bail, only a right against excessive bail.
2. The amount of bail depends on:
a. The seriousness of the offense
See Assignment 3
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except for use as permitted in a license distributed with a certain product or service or otherwise on a password–
protected website for classroom use.
b. The amount of the evidence against the defendant
c. The defendant’s family ties, employment, financial resources, character, and
mental condition
d. The length of the defendant’s residence in the community
e. The defendant’s criminal history
f. The defendant’s prior record for appearing and/or “jumping” bail
3. In some cases, it is constitutionally acceptable to refuse bail if there is no amount of
money that will ensure the defendant will appear for trial.
4. For some poor defendants, any amount is too much to pay.
(1) Due process of law because detained defendants can’t help with their own
defense.
(3) The right against excessive bail, because they can’t raise the amount required.
G. Preventive detention
1. The Constitution permits preventive detention.
3. The Bail Reform Act (BRA) of 1984 authorized federal courts to jail defendants
when no condition of release would guarantee appearance and safety of the
community.
a. The BRA guarantees defendants’ the following rights at preventive detention
hearings:
(1) To have an appointed lawyer
(3) To present evidence
4. The standard of proof at these hearings is clear and convincing evidence.
6. Preventive detention doesn’t violate the due process rights of defendants even though
they’re presumed innocent.
7. Conditions of pretrial confinement
a. Jailed defendants awaiting trial have constitutional rights, but they are severely
limited.
V. The Right to Counsel
Learning Objective 4: Know the types of defense counsel; understand the scope and limits of
the right to counsel; and appreciate the differences between the rights of those who can afford
lawyers and those who can’t.
See Assignment 2
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Media Tool
“The Right to Counsel: Badly Battered at 50”
http://www.nytimes.com/2013/03/10/opinion/sunday/the-right-to-counsel-badly-
battered-at-50.html?_r=0
o Discussion of changes related to the right to counsel since the Gideon
case.
o Discussion: How has the right to counsel evolved since Gideon? What has
affected this right?
Class Discussion/Activity
Have students research the two standards of “mockery of justice” and
“reasonably competent attorney.” In what ways is the second standard an
improvement over the first? In what ways is it still lacking? How might
this standard be improved?
What If Scenario
What if lawyers were required to take a test to determine competence on a regular
basis? Given the responsibilities of lawyers and the gravity of outcomes in criminal
law why aren’t standards higher?
A. U.S. courts have always recognized the right to retained counsel for criminal defendants
but they didn’t recognize the right to appointed counsel until the 1900s.
2. Although some jurisdictions still rely on pro bono lawyers to represent poor
defendants, large jurisdictions have public defenders.
4. Betts v. Brady (1942): the due process clause does not incorporate the Sixth
Amendment right to counsel.
6. State and federal governments now spend large sums of money to try defendants
accused of crime: prosecutors and public defenders.
B. When the right to counsel attaches
1. The right attaches to all “critical stages” in criminal proceedings.
a. When a general investigation focused on a specific suspect.
C. The meaning of “all criminal prosecutions”
1. States have to provide a lawyer for defendants charged with any offense punishable
by incarceration.
a. Does not apply to cases where incarceration is authorized but not
D. The standard of indigence
1. The U.S. Supreme Court has never defined indigence
2. U.S Courts of Appeals have established some general guideline
a. Poor defendants don’t have to be completely destitute.
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c. Actual, not potential, earnings are the measure.
d. The state can tap defendants’ future earnings to get reimbursement for the costs of
counsel, transcripts, and fees for expert witnesses and investigators.
E. The right to the counsel of your choice
1. Defendants have “…the right to be represented by an otherwise qualified attorney
whom that defendant can afford to hire, or who is willing to represent the defendant
even though he is without funds” (U.S. v. Gonzalez 2006, 144).
F. The right to “effective” counsel
1. Defendants have a right to “effective” counsel.
a. Mockery of justice standard: if a lawyer is breathing, he/she is “effective.”
(1) Judges resist getting involved because they do not want to damage
professional relationships, the independence of defense lawyers, the adversary
(1) Reasonableness prong: Defendants have to prove their lawyer’s performance
(2) Prejudice prong: Defendants have to prove their lawyer’s incompetence was
probably responsible for their conviction.
VI. Testing the Government’s Case
Learning Objective 5: Understand preliminary hearings and grand jury reviews and how they
differ from trials.
Media Tool
“Grand Jury Resistance Project” http://grandjuryresistance.org/
o Website for grand jury resistance project with information on grand juries.
o Discussion: What abuses of grand juries is the project trying to end? Does
the website provide good evidence to support its arguments? Do you agree
with the website arguments? Why/why not?
What If Scenario
What if you were charged with a serious felony? Would you prefer to have a
preliminary hearing or a grand jury? What are the reasons for your preference?
A. After the decision to charge, the case moves from the prosecutor’s office to the court.
B. Two procedures test the government’s case (determine whether there’s enough evidence
to go to trial).
1. A preliminary hearing is public.
See Assignment 1
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a. Criminal information
2. A grand jury review is secret.
a. Indictment
b. The grand jury hears only the government’s case.
c. A prosecutor presides.
d. Grand jurors decide whether the government’s case passes the test (indictment).
e. Neither defendants nor their lawyers may attend.
C. The Preliminary Hearing
1. Held after the first appearance.
3. No constitutional right to a preliminary hearing.
a. If provided for by state, Sixth Amendment guarantees right to a lawyer.
4. Adversarial proceeding
(2) Prima facie case rule
(3) Directed verdict rule
D. Grand jury review
1. Originally an investigating body.
2. Now screens criminal cases to protect individuals from malicious and unfounded
3. The members of the grand jury and proceeding differ from state to state
(1) Sixteen to 23 jurors
(3) Reside in the jurisdiction
(5) Speak, write, and read English
5. Grand jury proceedings
a. Swearing in
b. Charging
c. Secrecy severely restricts who can attend the proceedings
d. Rarely disagree with prosecutors
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E. The debate over the grand jury
a. Criticized for many years
b. Should be “trained experts” who can weigh evidence
c. Rubber stamp for prosecutors
d. Critics condemn the non-adversarial nature of the grand jury
e. Inefficient
f. Costly
g. Time-consuming
VII. Arraignment
Learning Objective 2: Understand the objective basis requirements to detain a suspect and go to
trial. Know the difference between criminal complaints, first appearances, and arraignments.
A. Arraignment brings defendants to court to hear and answer (plead to) charges.
B. Defendants can enter four possible pleas (answers):
1. Not guilty
3. Nolo contendere (no contest)
4. Guilty
VIII. Pretrial motions
Learning Objective 6: Understand and appreciate the importance of pretrial motions and why
counsel devotes so much time to preparing them. Pretrial motions may include arguments to
prove double jeopardy and requests for a speedy trial, a change of venue and the suppression of
evidence.
A. Pretrial motions decide questions before trial that don’t require a trial to answer.
B. Double jeopardy
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(1) For governments, it:
(2) For defendants, it:
(a) Limits the government’s advantage of greater resources
2. Jeopardy begins:
See Assignment 5
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except for use as permitted in a license distributed with a certain product or service or otherwise on a password–
protected website for classroom use.
b. In a bench trial (by the judge without a jury) when the judge begins to hear
evidence
3. Double jeopardy prohibits
4. Double jeopardy doesn’t prevent a second prosecution if
5. Double jeopardy clause bans both multiple punishments and multiple prosecutions.
a. But it is not double jeopardy to prosecute/punish a defendant for the same acts in
separate jurisdictions.
b. It doesn’t put defendants in double jeopardy to prosecute them in multiple trials
for separate offenses arising out of the same incident.
A. A speedy trial
1. The Sixth Amendment requires a speedy trial.
2. Promotes and balances several interests
a. For the accused it prevents long detention before trial; reduces the anxiety and
3. The requirement begins when the government formally charges suspects.
4. The ban is only on undue delays.
a. The balancing test looks at several factors:
(2) The reason for the delay
(4) Prejudice (harm) the delay causes to the defendant’s case
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(1) Dismissal without prejudice allows new prosecution.
(2) Dismissal with prejudice bars new prosecution.
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(2) Arraignment has to take place within 10 days after the indictment or the
information is filed.
(3) The trial has to begin within 60 days of the arraignment.
B. A change of venue
1. The change-of-venue motion seeks to move the case to another community.
a. This motion waives the defendant’s Sixth Amendment right to trial in the district
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b. Only defendants can file a motion to change the venue.
c. Trying the case in the community where the crime was committed protects the
interests of both the defendant and the community.
(1) It protects the defendant’s right to a fair and impartial trial.
(2) It protects the community’s interest in administering justice where the crime
(1) The reasonable-likelihood-of-prejudice test, used by a minority of courts,
balances:
(a) The kind and amount of bias
1. The motion to suppress evidence tries to let defendants keep out damaging
information.
a. An inquiry regarding the exclusionary rule triggers the motion.
b. Exclusion is a legal question decided by judges.
Lecture Notes
first appearance (probable cause) hearing. In County of Riverside v. McLaughlin, the Supreme Court
ruled that a judge’s determination that there is probable cause to detain a suspect must happen within
48 hours of arrest. If the first appearance does not happen within 48 hours, the government must
provide evidence of an extraordinary circumstance that caused the delay. Probable cause to detain is
a higher standard than probable cause to arrest.
© 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part,
except for use as permitted in a license distributed with a certain product or service or otherwise on a password–
protected website for classroom use.
those who are indigent. Felony defendants generally do not enter a plea at this time, however,
misdemeanor defendants most often enter a plea at first appearance. At an arraignment, felony
defendants are required to appear in court to enter a plea.
Most defendants are released from jail prior to trial. Those that are not released often spend significant
amounts of time in jail at considerable public expense. Judges rely on a number of ways to release
defendants. Pretrial release and bail take a variety of forms such as citation release, release on
recognizance, and release on money bonds. There is no constitutional right to bail. The Eighth
Amendment only prohibits excessive bail. What is excessive is the subject of interpretation. How much
bail is excessive is determined by the severity of the offense and the suspect’s ability to pay.
Constitutional rights that affect bail include due process because being in jail could prevent suspects from
preparing a defense and equal protection because being poor could affect whether a suspect is freed.
Preventive detention allows judges to deny bail to defendants who are dangerous or flight risks
after they have been given the right to an appointed lawyer, to testify at the preventive detention
The right to counsel attaches to all critical stages of the criminal process, including custodial
interrogation, lineups after formal charges, Grand Jury appearances and arraignments. The right is
not attached to investigative stops, frisks, and first appearances at trial. The right to appointed counsel
applies to poor defendants where conviction would result in actual incarceration, even if they face
only misdemeanor charges.
if there is sufficient evidence to go to trial. Grand jury proceedings are held in private and only the
prosecution’s case is presented to a group of jurors who decide if the matter should be tried. Defense
counsel is not permitted to attend. Debate exists as to whether the grand jury is effective and fair.
Arraignments bring defendants to court to hear and answer charges against them. Defendants enter
one of four possible pleas: guilty, not guilty, not guilty by reason of insanity, or nolo contendere.
Pretrial motions ask courts to decide important matters that do not require a trial. These matters
include double jeopardy, speedy trial, change of venue, and suppression of evidence. The Fifth
Amendment protection against double jeopardy ensures the prosecution has “one fair shot” at
Key Terms
officers of the court: In addition to representing the public in prosecuting cases, prosecutors must
“do justice,” which may mean not charging or prosecuting a suspect in a particular case. (p. 450)
diversion cases: Cases in which prosecutors agree to drop cases before formal proceedings are
commenced in return for the suspect agreeing to seek and complete certain public service and/or
treatment programs. (p. 451)
decision to charge: The decision to start formal criminal proceedings against a person. (p. 451)
selective prosecution: Prosecutors are not able to prosecute every crime due to a lack of
resources which necessitates setting priorities. (p. 451)
probable cause to go to trial: The standard of proof that must be met by prosecutors in either a
grand jury or preliminary hearing in order to have a case proceed to trial. (p. 453)
class action: An action in which one person or a small group of people represents the interests of
a larger group. (p. 453)
money bonds: Allows defendants to be released prior to trial if they put up a certain amount of
money. They can take several forms, including an unsecured bond. (p. 458)
preventive detention: This allows judges to deny bail to defendants who might pose a safety
critical stages of criminal proceedings: Those stages of a criminal prosecution where a
defendant has the right to be represented by counsel. These stages do not include preliminary
investigatory stages, and only include stages after the state has committed itself to prosecuting a
suspect—who now becomes the accused. (p. 468)
authorized imprisonment standard: A standard that would extend the right to counsel under
two-pronged effective counsel test: The U.S. Supreme court’s test for deciding whether a lawyer
has provided effective assistance of counsel; this test contains a reasonableness and a prejudice prong,
both of which must be satisfied before counsel will be declared ineffective. (p. 472)
reasonableness prong: This requires defendants to prove their counsel wasn’t reasonably
competent, meaning that the lawyer was so deficient, he/she was “not functioning as the
binds over: Send a criminal case on for trial. (p. 479)
bind-over standard: Standard used to decide if there’s enough proof to send a criminal case on
for trial. (p. 480)
probable cause to bind over: The standard of proof that must be met by prosecutors in either a
grand jury or preliminary hearing in order to have a case proceed to trial. (p. 480)
pretrial motions: Written or oral request to the court to decide a question before trial begins. (p. 484)
double jeopardy: Right guaranteed by the Fifth Amendment to not be tried or punished more
than once for the same offense. (p. 484)
bench trials: A trial before a judge without a jury. (p. 485)
manifest necessity doctrine: A circumstance that requires the termination of trial proceedings
before reaching a verdict. (p. 485)
hung jury: A jury that is unable to reach a verdict after protracted deliberations. (p. 485)
dual sovereignty doctrine: The principle which holds that a crime arising out of the same facts
in one state is not the same crime in another state. (p. 489)
change of venue: Move the location where the trial is held. (p. 492)
reasonable-likelihood-of-prejudice test: The determination that circumstances may prevent a
fair trial. (p. 493)
Assignments
1. Have students research their state’s code of criminal procedure to see how grand juries or
preliminary hearing are conducted in their state. The code of criminal procedure will detail,
2. The right to effective assistance of counsel is important in all criminal proceedings but it’s
3. The prosecutors’ power to charge is almost unlimited. Have students research this power and