Free Custom «Pretrial Process» Essay Paper

Free Custom «Pretrial Process» Essay Paper

The organization of courts has remained unique in various countries. Therefore, it is never easy to find two or more countries that exhibit similar judicial structures. This means that various countries might only share some aspects of the judicial processes. For example, in the USA, a given state can formulate its judicial structure according to its own desire and organizational scheme. For instance, a state may have numerous courts with different jurisdictions. Thus, “the organization of state courts does not necessarily resemble the clear-cut, three-tier system found at the federal level” (Posner, 1972).

The Pretrial Process

The pretrial process is a crucial aspect of any court proceeding. This is because the pretrial process serves a number of purposes, which are necessary for a court case. For example, it enables an accused to organize his defense against any allegation leveled against him. On the other hand, the prosecutors also have the opportunity to collect relevant information and evidence, which would assist them in prosecuting the defendant. Therefore, the success of any case is determined by how it is handled right from the pretrial stage. The following are the significant aspects of the pretrial process.

Arrest Stage

An arrest refers “to a situation whereby a person is brought under the custody of police officers” (Samaha, 2004). An arrest can be made if a person is found in the process of committing an offence, or if the police officers have information that somebody has done something that warrants an arrest. After this stage, the suspect enters the booking stage.

The booking stage is always conducted for the following reasons. At this stage information is collected from the suspect, and it is used for legal procedures. The information collected includes the details of the offence, and the personal details of the suspect.  After that, a date is set when the suspect will be arraigned in court. “For misdemeanors, which are less serious than felonies, the defendant may be released with the posting of a cash bond and a promise to appear before a magistrate” (Sheppard & Farnsworth, 2010). This stage is followed by arraignment of the suspect.

Arraignment Stage

The term arraignment, “refers to the process in which the accused appears in court and enters a ‘not guilty’ or ‘guilty’ plea” (John, 2009). “If the accused pleas that he or she is not guilty, a trial date will be set” (John, 2009). Another important process at this stage is the setting of the bail. The suspect is allowed to go back to his residence after paying a bail. The amount paid for a bail varies depending on the crime. This means that a bail is set based on the discretion of the law officials. Apart from money, a court may accept a property deposit. The bail imposed on a given defendant acts as an assurance that the suspect will attend his or her trial in court.

The property or money that is deposited for a bail is usually forfeited and taken by the government, if the defendant contradicts the bail requirements. For instance, failure to attend a court trial can lead to termination of a defendant’s bail. It is always not the wish of the court to release a person on bond, and they only do so out of the accused own recognizance. The bail charges are not always favoring the poor. Hence, they discriminate against the poor accused individuals. In this case, a minor offender who cannot raise cash to offset the bail requirements has to remain in custody until the day he or she will be arraigned in court.

Pretrial Detention

Pretrial detention can be applied to a suspect who fails to meet the requirements of a bail. For instance, a suspect who has engaged in gross miss conduct cannot be released from custody on bail terms. Another factor that can lead to preventive detention is when a suspect fails to go for trial. In addition to this, “the Bail Reform Act that was passed in 1984 in the USA gives judges the power to hold offenders without bail to ensure public safety” (Sheppard & Farnsworth, 2010). Nonetheless, this law has faced much criticism from individuals who contend that it leads to punishment of an individual, who has not yet been declared guilty by court. Such individuals, therefore, argue that the Bail Reforms contradict the constitution. Another challenge that leads to preventive detention is erroneous predictions, which are often made by judges who feel that if they release a defendant, he or she will engage in another offence even before he or she is tried. The fact is that such predictions are mostly wrong than correct.

Preliminary Examination

An individual who has been arraigned has the chance or right to seek a preliminary examination within a period not exceeding two weeks. However, a defendant can choose to waive the fourteen day guideline to enable him or her conduct the preliminary examination beyond the specified duration. A preliminary trial always precedes the main trial. Preliminary examination is mainly characterized by a contested hearing. Therefore, it is sometimes referred to as a potential cause examination. The judge who handles the preliminary trial has the capacity to decide whether a person should be tried or not. For a case to proceed to the main trial, the prosecutor has to give the judge the necessary information and evidence that will be used against the suspected criminal. If he or she fails to do so, the case can be terminated and another process can be used to discipline the suspect. “For example, he or she can be put on probation for some time” (John, 2009).

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However, “due to this low burden of proof, a prosecutor generally does not call all witnesses to testify at the Preliminary Examination that he or she would call at a trial” (Sheppard & Farnsworth, 2010). A defendant can also engage his attorney to interrogate the witnesses that the prosecutor has presented and provide his testimony (including witnesses).

Prosecutorial Misconduct

Prosecutorial misconduct is a terminology applied in jurisprudence, and it is a technical defense through which an accused can contend that he should not be penalized for breaching the law, due to the prosecutor’s unethical conduct or unfairness. “Prosecutorial misconduct can be defined as conduct, which violates court rules or ethical standards of law practice” (Samaha, 2004). For example, the defendant may raise an allegation that the prosecutor interfered with some evidence or deliberately allowed false testimony. Prosecutorial misconduct also occurs in case whereby the prosecutors fail to provide information, which may try to acquit the accused. Violation of specified court procedures by the prosecutors also qualifies to be treated as prosecutorial misconduct. This can be compared to selective prosecution. For instance, Duke Lacrosse case that occurred in 2006 was characterized by prosecutorial misconduct.

Grand Jury/ Main Trial

At this level the suspect is always scrutinized by the jury. “It is an opportunity to the government to argue its case in the hope of obtaining a guilty verdict and a conviction of the defendant” (Samaha, 2004). If the suspect cannot provide enough evidence, he is automatically sentenced. The similarity between preliminary trial and a major trial is that they both aim at finding information related to the crime. “They also enable the accused to defend himself” (John, 2009). The only difference is that the main trial gives the final decision on the dispute.


The manner cases are handled by the judiciary is not static in the sense that various factors determine how they are treated at each level of a judicial proceeding (Walker 1997). For instance, in most cases, a jury is usually formed to conduct criminal case trials. On the other hand, a civil case is mainly handled by a judge, but it may also be handled by a jury. Moreover, the conducts of both the defendant and the prosecutors also determine the general outcome of a given court trial. Consequently, prosecutors should maintain high standards of integrity and competence in order to facilitate fair trials. “The above discussion, therefore, reveals that there are quite a number of distinct proceedings and procedures that take place at the pretrial stage” (Posner, 1972).



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