Criminal Law for Paralegals: Chapter 6 Introduction

Tab Text Chapter 6

Arraignment and Discovery

Introduction This chapter addresses the of a in a case. Many states continue to use a grand to charge or “indict” a defendant accused of a felony (a punishable by imprisonment of more than one year). A defendant who is indicted on felony charges must appear at an arraignment hearing, which is generally scheduled several weeks after the .

At an arraignment, the court informs the defendant of the charges against him and the defendant is given the opportunity to plead guilty or not guilty. If the defendant pleads guilty, he will generally be sentenced the same day; his may be confinement, probation, fines, or all three.

If the defendant pleads not guilty, then a trial date is set and the discovery process begins. During discovery, each party is entitled to “discover” information about the other party’s case. In a criminal matter, the prosecution is required to disclose witnesses, produce and forensic reports, as well as any other about the case, including evidence that indicates that the defendant is not guilty of the crime charged.

It is generally at the arraignment that the defendant files pretrial motions, including motions to suppress evidence, motions in limine, as well as any other motions for the court to consider.

Lecture Notes

Tab Text Arraignment A defendant indicted on felony charges will be “arraigned” shortly after being indicted by the . At an arraignment, the defendant is told the charges pending against him and is given the opportunity to plead guilty or not guilty to the charges.

Procedure When a defendant is released on bond after his , he is notified by the jail of the date of his arraignment. If he fails to appear, the court has the authority to issue a bench warrant for his arrest.

Bond Most are released from custody on a bond until the time of his arraignment and/or custody. Bail is an amount determined by the court to be an appropriate incentive for the defendant to return for upcoming court dates.

Bail Bondsman

Often defendants cannot afford the entire amount of the bail determined by the court. Therefore, they pay a bail bondsman 10% of the amount of the court- ordered bail; the remaining 90% may be secured by an asset (such as a house) owned by the defendant or a family member of the defendant. Many courts are now taking the place of bail bondsmen and collecting 10% of the amount of the bail set by the judge. If the defendant appears at his subsequent court dates, the court will generally apply the amount of the bond to any fines owed by the defendant.

Plea Bargaining bargaining is an offer by the prosecution to drop charges against a defendant and/or recommend a lighter sentence if a defendant enters a plea of guilty to lesser charges.

Benefits: Plea bargaining is a necessary and important process in the system. The court and ’s overcrowded calendars are cleared for priority cases, the defendant ultimately receives some form of punishment (which, as the O.J. case demonstrated, he might not otherwise receive), and the taxpayers are saved the significant expense of a criminal trial.

Defendant’s Role The defendant, not his attorney, has the ultimate power to accept or reject a plea bargain offered by the prosecution. Most defendants, when confronted with the evidence against them, decide that it is better to accept the plea bargain than risk a trial on a more serious charge and/or face the longer jail time associated with the charged crime.

Judge’s Role The judge makes the ultimate decision of whether or not to accept a plea bargain. Because judges are political beings, they do not want to appear “soft on crime” and, therefore, may reject plea bargains that do not, in their view, appropriately sanction the defendant for the crime charged.

Example: Judge Brown is assigned a highly publicized trial of a man accused of murdering a young girl at an elementary school. The defendant is charged with 1st degree murder. The prosecution is concerned about calling the elementary school children to the witness stand during the defendant’s trial. Therefore, the prosecutor offers the defendant a plea bargain that would allow the defendant to plead guilty to 2nd degree murder and serve less jail time. The defendant accepts the plea and the prosecutor recommends the plea bargain to the court. The judge rejects the proposal, knowing that this is a highly publicized trial and he would receive severe criticism for accepting the plea bargain.

Pretrial Motions & Discovery

Discovery Discovery is limited in criminal trials. A defendant can ask for specific items or for exculpatory information (information showing the defendant’s innocence), but s/he is not permitted to make a generic request for “all information.”

State: The state must produce lists of witnesses, police reports, forensic reports, witness statements, and all exculpatory evidence (whether or not requested by the defedant).

Defendant: The defendant is required to provide minimal information, such as a list of alibi witnesses and defense witnesses.

Bill of Particulars: A defendant may request a bill of particulars in order to discover the information that the state is relying for its prosecution.

Brady Materials/Exculpatory Evidence: When the state has evidence or information tending to show the defendant is not guilty of the crime charged, the state must produce the evidence for the defense, whether or not the defense has requested it. pretrial Motions

Motion to Suppress: A Motion to Suppress evidence requests that the court rule inadmissible (“throw out”) evidence against the defendant that was obtained illegally.

Example: Mariah is known by law enforcement to pedal drugs to children at the local elementary school. A police officer receives a tip that Mariah just received a shipment of cocaine. The officer, wanting to be a local hero, enters Mariah’s home while she is out and searches the premises for the drugs. He finds large bags of a white powder substance; it is later determined to be cocaine. He seizes the bags and Mariah is charged with possession with intent to sell illegal an substance. Prior to her trial, Mariah’s attorney moves to suppress the cocaine seized by the officer on the grounds that a was necessary to conduct a search of her home. The trial court agrees and excludes the seized evidence from trial. The prosecution is forced to drop the charges against Mariah for lack of evidence to convict.

Motion in Limine A Motion in Limine seeks to exclude specific evidence from trial.

Example: Dean is charged with the of a 17-year-old female named Rita. Sally is called as a witness against him. She intends to testify that Dean engaged in repeated instances of sexual intercourse with her while she was a minor, even though he was aware of her age. Dean’s attorney files a Motion in Limine to exclude Sally’s testimony, on grounds that it is not relevant to the charges pending against Rita. The court grants the Motion, ruling that the testimony is irrelevant to the pending charges and would tend to prejudice the jury.

Motion to “Reveal the Deal” Often the prosecution will offer a witness immunity or other benefit in exchange for his (favorable) testimony against a defendant. The defendant is entitled to be informed of any such arrangements.

Motion for Change of Venue In highly publicized trials, the defendant may move for a change of venue/location of the trial in order to receive a fair trial by an impartial jury panel.

Example: Timothy McVeigh filed a Motion for Change of Venue to move his trial for the Oklahoma City bombing out of Oklahoma City.

Paralegal Practice Tip: When filing a motion for the court, it is good form to prepare an accompanying Order Granting Motion for the court. These are simple orders that essentially rephrase the Motion into an Order, omitting the legal argument.

Chapter Review

Tab Text 1. What happens at an arraignment?

2. What are bench warrants? When are they issued?

3. Explain how plea bargaining works. Why would the state offer to allow a defendant to plead guilty to a lighter sentence through a plea bargain?

4. Describe the process of entering a plea of guilty. What role does the judge play in the sentencing phase?

5. Criminal discovery has undergone drastic changes in recent years. What are some examples of the kinds of these changes? Has your state modified its discovery statutes? If so, what information do in your state now have to turn over to the defendant?

6. The Brady decision is extremely important in criminal discovery. What is the Brady decision and why is it important?

7. Describe the process involved in bringing a motion to suppress.

Chapter Review Answers

Tab Text 1. What happens at an arraignment?

In a typical arraignment procedure, the defendant appears in court and is officially told what the charges are. If the defendant has been indicted, he or she is given a copy of the indictment. If the case is proceeding on an accusation (or information), he or she will be given a copy of that document. In cases where discovery statutes have been modified, the defendant will also often receive copies of additional information such as police reports, crime lab reports, witness statements, etc.

2. What are bench warrants? When are they issued?

A bench warrant is a warrant issued by a sitting judge who authorizes the arrest of a person who has failed to appear for a scheduled court date. The warrant empowers the police to find this person and hold this person at the jail until the next court date.

3. Explain how plea bargaining works. Why would the state offer to allow a defendant to plead guilty to a lighter sentence through a plea bargain?

In a typical plea bargain arrangement, the government offers a defendant a sentence recommendation that is lower than what the state would normally seek in exchange for the defendant’s waver of a and an entry of a guilty plea. The state normally makes such an offer to clear some of the many cases pending on the court docket. Since there are so many cases, the only effective way of disposing of many of them is to offer the defendant a lighter sentence to avoid having a jury trial on every pending case.

4. Describe the process of entering a plea of guilty. What role does the judge play in the sentencing phase?

When a guilty plea is offered to the court, the government normally lays out the facts of the case, and then states its sentence recommendation to the court. After that, the judge announces whether or not he or she will accept the state’s recommendation, then the defendant’s attorney will give a brief statement about the defendant and then the judge will enter a disposition of guilty against the defendant and impose a sentence in line with the prosecutor’s recommendation.

5. Criminal discovery has undergone drastic changes in recent years. What are some examples of the kinds of these changes? Has your state modified its discovery statutes? If so, what information do prosecutors in your state now have to turn over to the defendant?

In general, the most prominent changes to discovery rules include a dramatic expansion of the material that must be turned over to the defendant prior to trial. This information includes witness statements, police and investigative reports, etc. The remainder of this answer varies depending on the discovery statutes in your state. You may wish to provide samples of these statutes to your students.

6. The Brady decision is extremely important in criminal discovery. What is the Brady decision and why is it important?

The Brady case is a decision by the United States Supreme Court that requires the government to turn over to defendants any information in the government’s possession that is considered exculpatory. Such information could include evidence that the defendant had a motive or that another person was involved in the crime. The Brady decision has been applied to evidence that mitigates a defendant’s sentence as well.

7. Describe the process involved in bringing a motion to suppress.

A motion to suppress is a defense motion that challenges the government’s plan of admitting specific evidence at trial, such as the defendant’s statement. The basis of this challenge is that the evidence was procured in some improper or illegal way, or that the evidence is inherently prejudicial, such as autopsy photographs of the victim.

Chapter Quiz

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