"In our criminal justice system, the government retains broad discretion as to whom to prosecute."

–U.S. v. Goodwin

So long as the prosecutor has PC to believe that the accused committed and offense defined by statute, the decision whether or not to prosecute, and what charges to file or bring before a grand jury, generally rests entirely on the prosecutors discretion.

A grand jury hears criminal accusations to determine if the individual should be indicted.

The SC in US v Williams stated that the grand jury belongs to no branch of government, but rather serves as a buffer between the government and the people.

The grand jury procedure came into being early in English Common Law.

The Magna Carta provided that no free man was to be seized and imprisoned except by judgment of his peers.

Before a person could be held for trial on serious charges, the accusation had to be presented to a council composed of the accused’s peers to determine if the charges was well founded.

The council later became known as a grand jury, as opposed to a trial or petit jury.

The grand jury idea was brought into American law with the 5^th amendment, which provides that "no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury."

While the 5^th is applicable only to federal charges, states may or may not use the grand jury procedure.

Approximately half of the states use grand juries.

Some states, like California, generally use an information process, but may also use the indictment process.

Other states use an information or accusation that is presented to a judge at a preliminary hearing in lieu of a grand jury presentation.

A proposed indictment is a document prepared by the prosecuting attorney setting forth a felony charge against an accused person.

Indictments are not used in misdemeanor cases.

The document does not become an indictment until approved by vote of the grand jury.

Until that approval, it is generally called a "bill."

It informs the grand jury of the charge about which they will receive evidence during the grand jury hearing.

If the grand jury votes in favor of holding the accused to answer for the charge, the bill becomes a true bill—it is at that point that it may truly be called an indictment.

Each crime charged on the indictment is considered a separate "count."

If the accused is charged with three different crimes in the bill, then there would be three counts to the indictment.

Grand juries generally meet at regular times to hear criminal charges presented by a prosecutor.

A grand jury also may call a hearing on its own and conduct its own investigations.

As noted by the court in Williams, the grand jury is not a judicial body but an investigative body whose historical role is that of an accusatory, not adjudicatory body.

The jury meets in closed session, and the procedures remain secret.

The accused has not right to be present.

In determining whether an accused should be formally charged, jury members will question witnesses and receive evidence.

In most cases the prosecuting attorney or an assistant is present during the hearings to assist the jury in an question witnesses for the grand jury.

Non one but the jury members may be present during the deliberations and voting.

In most states a court reporter records the testimony of witnesses during the hearings.

If the grand jury decides that the accused should not stand trail, they refuse to endorse the indictment or vote a "no bill."

With a grand jury of 19 persons, generally twelve votes are required to endorse an indictment.

In most states, the prosecutor may present a "no bill" indictment to a second grand jury—there is no double jeopardy the way those states see it.

A few states do however prohibit it.

The Eighth Amendment prohibits excessive bail.

The traditional purpose of bail is to ensure the accused’s presence at trial.

Bail includes the use of bail bonds, property deposits, third-party supervision, or other conditions of release designed to ensure that the accused returns to the court for trial.

While the court didn’t directly hold that the excessive bail clause applied to the states via the 14^th Amendment, they did state that "it has been assumed to have application to the States through the 14^th Amendment."

Since the function of bail is the limited purpose of ensuring attendance at trail, the amount of bail varies as to each defendant.

Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is considered excessive under the Eighth Amendment.

Pretrial detention impedes the defendant’s ability to prepare for trial.

He or she cannot help locate witnesses and other evidence.

Incarceration disrupts the individuals life

Prior to 1985, it was generally presumed that preclusion of flight was the only constitutionally accepted groups for setting bail and pretrial detention.

Allowed federal courts to detain an arrestee pending trial if the prosecution could establish by clear and convincing evidence that pretrial detention was necessary for the protection of other persons and the community.

The term preventive detention is often used to describe this type of custody.

The constitutionality of preventive detentions was challenged and upheld in this case.

The court noted that the 8^th Amendment only requires that excessive bail not be required; it says nothing as to whether bail must be granted in the first place.

The amendment does not prohibit the government from pursuing other compelling interests through the regulation of pretrial release.

Among several other issues, the court considered whether pretrial detainees are being punished before trail because of the confinement and restriction on their rights.

The court stated that once the government ahs exercised its authority to detain a person pending trial, the government is entitled to employ devices that are calculated to effectuate this detention and that loss of freedom and privacy are inherent incidents of pretrial confinement.

Most defendants are released prior to trial.

Courts rely on a variety fo release mechanisms.

Some retain a citation release or a summons to appear.

Some are released before seeing a judge according to a bond schedule that lists amounts required for various offenses.

Often defendants are released by judges on their own recognizance.

This is merely a promise to appear in court.

Many judges will attach restrictive conditions on such releases, such as residing in the community, not using drugs or alcohol, or attending drug treatment programs.

Held that a person arrested and held for trial under a prosecutor’s information (rather than a grand jury indictment) is constitutionally entitled to a judicial determination of PC for pretrial restraint of liberty.

The Court then stated that judicial determinations of PC within 48 hours met the Gerstein promptness requirement (County of Riverside v. McLaughlin).

At an arraignment the defendant is informed of the charges and given an opportunity to enter a plea to the charge or charges alleged in the complaint or indictment.

The defendant may enter a plea at that time or request time to consider the plea to enter.

If the defendant stands mute—refuses to enter a plea—a plea of not guilty will be entered by the judge.

In early English common law, a defendant was not permitted to enter a guilty plea since it was thought that the only way justice could be accomplished was through the adversarial trial process.

Some states will not allow a guilty plea in capital trials since it would be tantamount to committing suicide.

A plea of guild is an admission to every element of an offense and is equivalent to and is considered a conviction.

In most jurisdictions, a plea of guilty must be made in open court personally by the defendant.

Before a judge can accept the plea, the judge is required to inform the defendant of his or her rights, the elements of the offense, the rights waived by a plea of guilty, and the maximum penalty for the crime.

The record of the trial must reflect that the judge advised the accused of the significance of the guilty plea and made a finding that the accused understood the significance of the plea.

A guilty plea may be accepted in most jurisdictions even though accompanied by a claim of innocence.

A judge can refuse to accept a guilty plea—there is no constitutional right to have a guilty plea accepted.

After a plea is accepted, the next step is to sentence the defendant.

If the charge is a misdemeanor, generally the sentence is announced at that time.

If the charge is a felony, the judge may set a sentencing date and order a pre-sentence investigation (PSI) to provide the judge with information regarding the appropriate sentence.

If the accused pleads not guilty at the arraignment, generally the court will allow the defendant to change his or her plea to guilty.

Often the change in plea is the result of a plea bargain agreement reached between the defendant and the prosecutor.

Once a change of plea is entered, the judge will proceed with the case as with any other guilty plea.

A plea of nolo contendere means that ‘I will not contest it’.

The nolo plea is essentially a guilty plea, but limits future civil liability since there is no admission of guilt.

There is no constitutional right to enter a nolo plea—some jurisdictions do not allow it.

The defendant admits committing the crime, but was not sane at the time of the act.

Usually the defendant must prove this lack of sanity at the time of the act.

Some states do not recognize this plea; still they may plead not guilty and raise insanity as an affirmative defense at trail.

The former jeopardy plea is of ancient origin: it was a part of the ancient Roman law, as well as a part of the English Common Law.

The plea is used to invoke the right against double jeopardy.

The right provides that no person may be placed in jeopardy of his life or liberty more than one for the same offense.

In most jurisdictions, the right is waived unless pleaded at arraignment.

1. a defendant who appeals a conviction and wins may generally be tried again

2. If there is a mistrial or a hung jury, the defendant may generally be charged again.

3. A defendant tried in state court may generally be tried for the same offense in federal court if it is a federal crime.

Jeopardy is generally considered to begin with the trial.

About ½ of the states use a preliminary hearing rather than a grand jury.

At the preliminary hearing, a magistrate decides whether there is adequate cause to require an accused to stand trial for the offense or offenses charged.

Before the preliminary hearing may be held, the defendant must have a complaint fined against him charging him with a felony.

In some jurisdictions, the complaint is known as an information.

Like a grand jury hearing, the purpose of the preliminary hearing is to determine if the accused should be held for trial in the felony trial court.

If the magistrate rules that the defendant should be bound over for trial, the prosecution must prepare the formal charges that are then filed with the felony trial court.

In most jurisdictions, if there is a grand jury indictment, no preliminary hearing is required.

The purpose of pretrial motions is to request that the judge take some action on a particular matter.

Typically, pretrial motions may include motion for discovery, motions to suppress evidence, motion to dismiss charges, motion for a change of venue, motion for continuance, motion for severance of offenses, and motion for severance.

The right of pretrial discovery in criminal cases is of comparatively recent origin.

It was unknown at common law.

The motion for discovery is the right of the adversary to inspect, review, and copy materials held by the opposing party.

What can be discovered: e.g., List of witnesses expected to be called, Notice of any alibi defenses

The right of discovery was created primarily for the benefit of the defendant—the theory being that the right would assist the defendant in case preparation and aid in getting a fair trial.

A motion to suppress evidence is generally a defense motion whereby the defense requests that the judge rule that certain items of evidence are not admissible at trial.

This is where the suppression of evidence made illegal under the exclusionary rule or the fruit of the poisonous tree doctrine is considered.

In some jurisdictions rather than a motion to suppress, the issue as to the admissibility of evidence is decided at the time that the item or statement is offered into evidence.

Other jurisdictions allow both a motion to suppress and the right to object when the item is offered into evidence.

The advantage of hearing a motion to suppress prior to trial is that the judge is not required to stop the trial for a hearing on any objections to evidence.

Often the defense will make a motion to dismiss charges.

While there are various grounds to that may be used as the basis for the motion, the most common include failure of the indictment to allege and offense, lack of a speedy trial, and a plea of former jeopardy.

A motion for severance of offenses may be made when the accused is charged with more than one offense and wants to be tried for each separately.

A motion for severance is commonly made when two or more defendants are being tried jointly.

The motion for severance may be based on the fact that allowing the defendant to be tried jointly with another defendant may deprive him or her of the right to a fair trial.