Pretrial & Trial

What happens after the police arrest someone? The prosecutor must decide whether to charge the defendant and with what, a grand jury must decide to permit the prosecutor to proceed, discovery and further investigation occurs, pre-trial motions on a variety topics, such as the exclusion of evidence must be filed and decided, a plea bargain might be offered and accepted, and, if not, the case goes to trial, where a jury is selected, evidence is presented, and the jury decides whether the government has proved its case beyond a reasonable doubt that the defendant committed a crime. This portion of the criminal justice process is especially prone to human bias and error because the prosecutor has significant power and wide discretion to use it, or not.

The prosecutor gets to determine whether or not to charge a defendant or offer a plea bargain, the terms of which he gets to set. Ninety-five percent of people charged with criminal offenses take a plea deal and never make it to trial. The fairness of the pretrial and trial process may be affected by lack of funding for the numerous indigent defendants brought through the system, restrictions on pretrial discovery, and the use of forensic evidence found to be scientifically unsound. These and other issues have contributed to wrongful convictions of innocent individuals. Crime victims’ interests must also be considered during this phase of the process, and as with every aspect of the criminal justice system, racial disparities abound.

The academic research collected here raises and then answers essential questions about the pre-trial and trial aspects of the criminal justice system.

The Criminal Justice System Punishment & Sentencing Policing Prison, Release& Reentry Punishable Crimes Pretrial & Trial

Subtopics

The prosecutor represents the government and has the sole authority to criminally charge a civilian and seek punishment. In addition to deciding whether to prosecute, they must also decide what charges to seek. The evidence may support charging many crimes, and there may be incentives to “throw the book” at someone, which increases leverage later when negotiating a plea bargain. Alternatively, the prosecutor could decide not to prosecute, letting the person go free. This power belongs to no one else; not to judges, not to legislators, not to citizens.

The prosecutor’s discretion is not unlimited. In most jurisdictions, the prosecutor must convince a grand jury—made up of citizens—that the evidence supports charging the crimes the prosecutor seeks to pursue. Because the question for the grand jury is simply whether to move forward, defendants typically have no role at this stage, so grand juries only hear one side. The standard of proof needed to move forward is also usually quite low. If the grand jury approves the charges proposed, the defendant will have the opportunity to contest them at trial, and the prosecution will have to meet a much more stringent standard.

This aspect of the process can raise significant questions about prosecutorial discretion and how it is exercised, in particular with decisions about whom to charge, what charges to bring, and how prosecutors are evaluated for the decisions they make. The research presented here seeks to answer these questions and suggest reforms that will provide better guidelines for prosecutorial decision making.

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The process begins with a “first appearance,” at which a judge informs the defendant of the reason for his arrest, informs the defendant of his rights, and appoints counsel if appropriate. If the defendant has not already hired an attorney, the court typically assigns a public defender to represent the defendant if the defendant cannot afford their own. A number of states do not provide attorneys if the crime charged is under a certain threshold. Once the decision to charge has been made, the defendant attends an arraignment, in which he is advised of the charges against him and given the opportunity to plead guilty or not guilty.

Key issues that arise during this phase of the pre-trial process include whether all defendants should be represented and whether and at what level to set bail (discussed below).

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After arraignment, the court considers whether the crime is so severe that the charged defendant should be kept in jail until trial. Sometimes, the court will release the defendant on his promise to show up for trial. In other cases, the question will be whether and at what level to set bail, a financial guarantee that the defendant will appear in court, is not a flight risk, and is not a danger to the community. If the court sets bail and the defendant can pay it, the defendant will be released from jail until trial. Many people cannot afford bail set for them by courts and must remain in jail until their trial even though they have not been found guilty and indeed may be innocent. In some cases, where the defendant is deemed a flight risk or dangerous, the court will deny bail, and the defendant will have to stay in jail until the trial. The research presented here seeks to identify problems with the bail system and suggest reforms that will protect the constitutional rights of defendants, while still protecting the public and ensuring that defendants comply with their obligations.

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The next phase of the pre-trial phase is discovery. State rules requiring prosecutors to give discovery to defense attorneys differ. Some prosecutors have an “open file” policy that allow defense attorneys to see all relevant information. In other cases, prosecutors disclose information only if the defense attorney specifically asks for it. Prosecutors must turn over any evidence that could substantially support a finding that the defendant is not guilty. However, a lot of evidence falls in the gray area, giving prosecutors significant discretion regarding what to turn over.

Defense attorneys will look closely at the evidence to decide whether to challenge the reliability or validity of the prosecutor’s evidence. For example, if the charge is possession of cocaine, the defense attorney may challenge whether the powder is actually cocaine, or challenge whether the police appropriately found the powder on their client. Improper police behavior may lead to the charges being dismissed – even if the substance actually is cocaine. Defense attorneys frequently challenge evidence in hearings before trial, seeking to keep prosecutors from introducing it at trial.

The research presented here seeks to identify problems such as these, and suggest reforms that will protect the constitutional rights of the defendant while still maintaining credibility of the system.

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Much of the back and forth with sharing of evidence between the prosecutor and defense attorney, takes place at hearings scheduled before the judge, including status hearings, evidentiary hearings, mental health evaluations, and ultimately a trial or plea “colloquy,” where the defendant pleads guilty in court. Each hearing is a “check-in” with the court. The research presented here seeks to identify problems that can arise with this drawn out process, and suggest reforms.

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In a large number of cases, prosecutors offer the defendant a “plea deal,” that is, an agreement to charge fewer or less serious criminal offenses or ask the court to impose a lower sentence in exchange for the defendant pleading guilty to those charges. Plea deals may or may not require jail time, and they may be offered at any time during the pre-trial process.

Many reformers argue that the less severe consequences offered as part of a plea bargain amount to a trial “penalty” or “tax” in that the defendant is penalized if he chooses to go to trial and face the full charges. This disparity, along with the costs of going to trial, can create a strong incentive for defendants to sign these agreements, whether or not they committed the crimes. The research presented here seeks to explore these issues and suggest reforms.

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Racial disparities permeate the pretrial and trial portion of the criminal justice system. Black defendants are less likely to be granted release on bail than white defendants and are usually saddled with higher amounts of bail, even for the same offense. Black and Latinx defendants typically face more serious criminal charges from prosecutors than similarly situated white defendants. Black and Latinx defendants also frequently receive worse plea deals than white defendants for the same crimes. At trial, Black and Latinx defendants are more frequently stereotyped as criminals and face discrimination from a jury – while at the same time Black and Latinx jurors are more likely to be removed from the jury than white jurors. Finally, Black and Latinx defendants are typically more harshly sentenced and punished by judges than white defendants. Documenting these disparities and proposing reforms to reduce bias is a core goal of academic researchers.

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Experts and Affiliates on Pretrial & Trial

Valena Beety

Professor of Law and Deputy Director - Academy for Justice
Arizona State University

Bennett Capers

Professor of Law
Fordham University

Gabriel J. Chin

Edward L. Barrett Chair in Law and Martin Luther King, Jr. Professor of Law
University of California, Davis

Angela J. Davis

Distinguished Professor of Law
American University

Barry Friedman

Jacob D. Fuchsberg Professor of Law, Affiliated Professor of Politics, and Director of the Policing Project
New York University

Brandon L. Garrett

L. Neil Williams, Jr. Professor of Law and Faculty Director of the Center for Science and Justice
Duke University

Rachel A. Harmon

F.D.G. Ribble Professor of Law
University of Virginia

Alexandra Natapoff

Lee S. Kreindler Professor of Law
Harvard Law School

L. Song Richardson

Dean and Chancellor’s Professor of Law
University of California, Irvine

Christopher Slobogin

Milton Underwood Professor of Law, Affiliate Professor of Psychiatry, and Director of the Criminal Justice Program
Vanderbilt University

Jenia I. Turner

Amy Abboud Ware Centennial Professor in Criminal Law
Southern Methodist University

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