Individual Portion:

Each individual will share 3 deliverables with each other in the group and will provide a copy for the instructor for accountability of participation in the group. The following are the deliverables:

•A 1-page bulleted list of 10 points that are the more important in your view on properly processing a defendant in a federal investigation.
•A 1-page outline on the best way to format and present the federal criminal pretrial process, which includes jury selection, evidence and jury instructions. Please provide examples in your outline of your recommended format for presenting the process.
•A 1-page draft of how to present the processing requirements and the mandated pretrial measures required by law

While many citizens think the real action in the criminal courts happens during trials, they are wrong in that assessment. Ninety percent of criminal cases are disposed of by guilty pleas rather than trials. Most of those guilty pleas are the result of agreements between prosecutors and defense attorneys. Plea bargaining is a process in which a prosecutor makes a concession to a defendant (for example, reducing charges or recommending a lighter sentence) in exchange for the defendant's pleading guilty. Even cases that go to trial are sometimes decided before the trial begins. Some experts think that the O.J. Simpson case, for example, was won outside the courtroom through early forensic work by experts and through a legal strategy that forced the prosecution to present its evidence at a preliminary hearing rather than a grand jury proceeding.
In the landmark case Gideon v. Wainwright (1963), the U.S. Supreme Court held that the Sixth Amendment guarantees access to qualified counsel, which is fundamental to a fair trial. Gideon was entitled to a retrial because Florida failed to provide him with an attorney. After this decision, states were required to furnish public defenders for indigent defendants in felony cases. In Argersinger v. Hamlin (1972), the Court extended the right to a lawyer to all cases that might result in imprisonment.

A person accused of a crime, the Court has said, “requires the guiding hand of counsel at every step.” “Without it,” as New York Times columnist Anthony Lewis says, “she may be overborne by what she does not understand.”

The prosecutor's decision to charge

Following the arrest of a suspect by the police, a prosecutor decides whether or not to press charges. The prosecutor is the government's lawyer. If the prosecutor decides to proceed, he or she files a charging document with a lower court. A charging document accuses the arrestee of committing a crime. The most common charging documents used are the information and the indictment. Although the information and indictment differ in some respects, each of these contains a statement of the charge.

Reviewing the charge

Although the charge is filed in a lower court, the judge in such a court doesn't have the authority to hold a trial. Before transferring the case to a trial court, a judge in the lower court reviews the complaint and determines whether there are legal grounds to support the arrest under which the defendant is being held in custody. If the judge finds that the facts alleged establish probable cause, the judge sets a date for the defendant's first appearance in court.

The first court appearance

For the first appearance, the defendant is taken from jail and brought before the lower court judge. The judge informs the defendant of the charge in the complaint, explains to the defendant that he or she has certain rights, offers to appoint counsel at the expense of the government if the defendant is indigent (too poor to afford a lawyer), and sets bail.

Bail

Traditionally, bail has consisted of cash or other property that a defendant deposits with the court in order to be released from custody. The cash or property serves as a guarantee that the accused will show up for the trial. If the defendant skips bail, the cash or property is forfeited to the government. Often, a court does not require persons to post cash or property and releases those accused of crimes on their own recognizance (on their personal promise to appear). About 10 to 20 percent of all felony defendants don't get pretrial release because the judge finds them too dangerous to be released or because they can't make bail.
Bail discriminates against the poor. When a judge sets cash bail at a high level, it causes the pretrial confinement of many low-risk defendants who don't have the funds to either post bonds or retain a bonds agent. Another problem with bail is that it is totally discretionary. Factors considered in bail setting include the seriousness of the crime, the defendant's prior criminal record, and the strength of the government's case.

Preventive detention

Thirty states have passed preventive detention laws permitting judges to deny bail to suspects with prior records of violence or nonappearance for trial. Similarly, the Bail Reform Act (1984) gives federal judges the power to hold offenders without bail to ensure public safety. Critics charge that these laws violate citizens' rights under the U.S. Constitution because they authorize punishment of citizens in jail before a court has found them guilty. A related problem is false positives—erroneous predictions by judges that a defendant, if released before trial, will commit a crime. The trouble with trying to prevent crime by denying bail to suspects who are predicted to be dangerous is that it presumes an ability to predict future criminal activity. The truth is that predictions about violent criminal behavior are more likely to be wrong than right.

Grand jury review

Just because the police arrest someone and the government charges him or her with a crime doesn't mean that the accused will have to stand trial. Either a judge or a panel of citizens decides if there is enough evidence to have a trial. The federal government and half of the states provide for a panel of citizens, known as a grand jury, to decide if there is probable cause for believing that the accused committed the crime he or she is charged with. Grand juries are often larger than trial juries, consisting of 12 to 23 members. If a majority of the grand jurors finds there is probable cause to support the criminal charge, the grand jury approves an indictment.

The future abolition of grand juries

It is a safe bet that, sometime in the near or distant future, grand juries will be abolished because they are the antithesis of due process. Unlike trials, grand jury proceedings are private and secret, and hearsay evidence (evidence that is not first-hand) is admissible (it is inadmissible in criminal trials). The defendant has no right to be present at grand jury proceedings and no right to cross-examine witnesses. The concept of “innocent until proven guilty” doesn't apply. Only the prosecution presents evidence in these ex parte (one-party) proceedings, and it doesn't have to prove that the accused committed the crime.

Historically, the grand jury was created to serve as a shield to protect citizens from unfounded charges made by overzealous and/or politically motivated prosecutors. Critics charge, however, that the grand jury has become a tool for the very prosecutorial misconduct that it was intended to prevent. Procedural rules of the grand jury favor the prosecution. The exclusionary rule doesn't apply. Because the grand jury gets only the prosecution's version of the evidence, it is likely to find probable cause that the suspect committed the crime charged. Grand juries indict defendants at a rate of 99.9 percent, suggesting that they are rubber stamps for the prosecutor.

The preliminary hearing

In contrast to a grand jury hearing, a preliminary hearing takes place in public, with the defendant and the attorneys for both sides present. At this stage, a lower court judge reviews the prosecution's evidence to see if there is enough evidence to support the criminal charges. The standard for testing the evidence is probable cause.

Because both the prosecution and the defense are represented in a preliminary hearing, it is considered an adversary proceeding. The defendant has counsel who challenges the prosecution's evidence and introduces evidence on behalf of the accused. If the judge finds probable cause, the judge sends the case forward to the trial court.

If a case survives the screening of the preliminary hearing or the grand jury review, it goes to a trial court. At the arraignment, the judge informs the defendant of the charge and asks for a plea. The defendant pleads not guilty, guilty, or nolo contendere (no contest). A no-contest plea has the same effect as a guilty plea, except there is no formal admission of guilt. If the defendant pleads not guilty, the judge sets the case for trial.

Pretrial motions

Prior to the trial, both the prosecution and the defense can make motions. A motion for discovery is a request for the prosecution to make available to the defense evidence the prosecution plans to introduce at the trial. The prosecutor is also obligated to turn over any exculpatory evidence—that is, evidence that might establish the defendant's innocence. A motion to suppress is a request to bar certain evidence (for example, a forced confession) that either the prosecution or defense intends to use during the trial.
What is a Federal Prosecutor?

A “federal prosecutor” plays a very important role in the criminal justice system. They are attorneys who represent the Federal government in a court of law and attempt to prove that a person or company committed a crime. In doing so, each prosecutor must always remember that he/she is a representative of the court and must behave fairly and provide justice to the country's citizens.

What is a United States Attorney?

Some federal prosecutors are called the “United States Attorney”. United States Attorneys serve for a period of four years.
There are 93 United States Attorneys. Each is Presidentially-appointed, Congressionally approved, and confirmed by the Senate.

What is a District?

Sometimes, depending on the size of the state, it may be divided into several different areas, or “districts”, with one presidentially appointed United States Attorney for each. The United States Attorney has other attorneys who assist them in prosecuting cases.

What is a Assistant United States Attorney?
These other attorneys, are called “Assistant United States Attorneys” (“AUSAs”) and they are not presidentially appointed. The Assistant United States Attorney’s main job is to present a set of facts to a judge or jury in a court of law and attempt to prove that an individual or company committed a crime. In order to do this, they rely on many people to get their job done—some collect information, interview people about crimes, or simply help them in court.

To give you a better understanding of the work of the Federal prosecutor, the Department of Justice uses facts from a case in Chicago, Illinois, several years ago. Throughout the story, there are definitions of legal terms and descriptions of the prosecutor’s role in each step of the criminal justice system process.

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Step 1 - Investigation

Often, prosecutors are called immediately after a crime and consulted about what should be done. One of the first things the Assistant United States Attorney does is contact an “investigating agency,” so that an investigator can be assigned to the case to assist in obtaining information about a person, place, or events related to the crime. In the Federal Government, there are agencies that employ investigators to collect and provide information to prosecutors. You may already know some of the agencies, such as: the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA),and the United States Secret Service (USSS), to name a few.

The investigators at these agencies explain what happened at the scene of a crime and who may have seen it, and help prosecutors understand the details of the case. The prosecutor may work with just one agency but, many times, several investigating agencies are involved.

Case
Remember our prosecutor? At this point, after the neighborhood boys were arrested, the prosecutor got a phone call asking whether there was a “case” against them. A “case” is simply a group of facts to show that a person may have committed a crime.

Civil Rights
After the phone call, our prosecutor called an investigating agency involved in civil rights violations. “Civil rights” include things like the right to vote, the right to be happy, and the right to live in any part of town and attend any school, regardless of your nationality, gender, or appearance. The investigating agency assigned an investigator to the case who specializes in these types of cases. To seek out the truth and search for information relating to the crime, the investigator talked to the parents of the neighborhood boys, visited their school to talk to their teachers, and spoke with as many people as possible in order to create a clear picture of what happened for the prosecutor. The prosecutor may even choose to talk to some of the same people that the investigator talked to, just to make sure he has the best understanding of exactly what happened.

Direct Evidence

After the prosecutor determines that there is a case, he uses all the statements and information he has to determine if the Government has a “strong case”—one in which all the facts lead to a specific person or persons who committed the crime. In our case, the facts lead the prosecutor to believe that the neighborhood boys beat the lost boys because they didn’t want the boys in their neighborhood. However, before the prosecutor made that conclusion, he looked at both direct and circumstantial evidence. “Direct evidence/testimony” is information provided by a witness who saw or heard the beating, or is a videotape or audiotape of someone committing a crime. In our case, the direct evidence was the statements by the lost boys who said that the neighborhood boys beat them for no reason. Additionally, a four-year old girl who watched the beating from her grandmother’s window overlooking the street, also would testify that she watched the neighborhood boys beat the other two for no reason.

Circumstantial Evidence
The second type of evidence is “circumstantial evidence”—statement(s) or information obtained indirectly or not based on first-hand experience by a person. Circumstantial evidence includes people’s impressions about an event that happened which they didn’t see. For example, if you went to bed at night and there was no snow on the ground but you awoke to snow, while you didn’t actually see it snowing, you assume that it snowed while you slept.

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Step 2 - Decision to Charge

After the prosecutor studies the information from investigators and the information he gathers from talking with the individuals involved, he decides whether to “charge” or “indict” the case. When a person is charged or indicted, he is given formal notice that it is believed that he committed a crime. The indictment contains information that helps the person understand the crime he committed.

In our case, the neighborhood boys were charged with beating the lost boys in violation of their civil rights. Once charged, the neighborhood boys became the “defendants” in the case.

Sometimes, a prosecutor will present the evidence to an impartial group of citizens, called “Grand Jurors.” Witnesses may be called to testify, evidence shown to the Grand Jury and a simplified outline of the case presented to the Grand Jury members. What the Grand Jury does is listen to the prosectuor. The members then meet secretly and vote on whether they believe that enough evidence exists to charge the person with a crime. A Grand Jury also has the option of telling the prosecutor that the evidence and witnesses that he/she presented was insufficient to trigger an appearance of a crime, and as a result “no indictment” would come from the Grand Jury. All proceedings and statements made before a Grand Jury are sealed, meaning that only the people in the room have knowledge about who said what about whom. The Grand Jury is a constitutional requirement, (meaning it is written in our constitution) that exists so that a group of citizens, who do not know the defendant, the judge, the prosecutor or anyone else in the room can make an unbias decision as to the existence of enough evidence to charge a defendant with a crime.

After the defendant is charged, he can either hire an attorney or choose to be represented by an attorney provided by the Government—a “public defender”—at no charge. The defendant’s attorney is referred to as the “defense attorney”. He assists the defendant in understanding the law and the facts of the case, and represents the “charged person” just as the prosecutor will represent the Government.

Venue

The location where the trial is held is called the “venue,” and Federal cases are tried in “United States District Courts”. There are more than 100 District Courts in the United States. See if you can find the one closest to your neighborhood.

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Step 3 - Initial Hearing

Magistrate Judge and Bail

Either the same day or the day after a defendant is arrested and charged, he is brought before a "magistrate judge" for an initial hearing on the case. At that time, the defendant learns more about his rights and the charges against him, arrangements are made for his attorney, and the judge decides if the defendant will be held in prison or released until the trial.

In many cases, the law allows the defendant to be released from prison before a trial if he promises or guarantees to come to court when told. This promise or guarantee is called “bail.” Before the judge makes the decision whether to offer bail, he may hold a hearing to determine how long the defendant has lived in the area; if he has family close by; if he has ever been arrested before and, if so, if he has appeared in court as told; and, finally, if he has threatened any witnesses in the case. The judge also considers the defendant’s potential danger to the community.

If the defendant cannot “post bail” —or pay the money—then the judge orders him to stay in prison until after the trial. After the judge decides where the defendant will be before trial, the prosecutor’s substantial work begins.

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Step 4 - Pre-trial

Not only do prosecutors give advice but, more importantly, they try to prove a defendant’s guilt in a court of law. When a case goes to trial, the prosecutor’s goal is to convince the jury—a group of citizens—that the defendant committed a crime and should be punished.

Before a prosecutor begins a trial, there are many weeks or months of work to be done. The “pre-trial” stage of a case can be compared to homework!

The prosecutor has to become familiar with the facts of the crime, talk to the witnesses, study the evidence, anticipate problems that could arise during trial, and develop a strategy.

The prosecutor may even practice certain statements he will say during trial. This is called “moot court.”

One of the first steps in preparing for trial is talking to witnesses who could be called to testify in court. As we’ve discussed earlier, a “witness” is a person who saw or heard the crime take place or may have important information about the crime or the defendant. In our case, the witnesses are the two boys who were beaten and the young girl who watched the beating. The boys are also the victims of the crime.