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Dear students.

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I am delighted to meet you again
for the second lesson on pretrial

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proceedings.

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We will be looking at bail,
grand juries, arraignment and plea

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bargaining.

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And these will be a lot less familiar
to you than the previous class.

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What is also to be borne in mind
is that proceedings are often a

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bit more complex than what we teach
you and also depend a lot on states.

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So the cases we'll see together
are mainly federal cases and not

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state cases.

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In the first part, we'll be discussing
first appearance and bail.

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So once a suspect is arrested and
placed in custody, so detained,

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the next move is an appearance in court.

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Do you remember our last lesson
with the pronunciation of the schwa

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sound?

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You know, the m' sound?

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The very weak vowel followed by
a stressed syllable.

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Listen.

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Appearance.

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Arrests.

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In the event of a lawful arrest,
the judge will again read the arrest to the suspect, so

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their rights and provide them with
a lawyer if they cannot afford one.

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The judge will also set the date
for a preliminary hearing and decide

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whether to set bail or leave the
arrestee in custody.

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Bail is the money posted, secured,
as a guarantee that a defendant

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in a criminal trial will turn up
on the day of the hearing and not flee.

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If the defendant shows up,
the money is returned.

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If not, the money is kept by the
institution and a fresh arrest

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warrant is issued.

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In order to secure the amount,
the defendant can pledge their house,

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car or give a lump sum of money.

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There are also professional bail
bond persons that may post pay

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bail on behalf of the defendant
and keep 10% as a commission.

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The decision to grant,

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(so that's a nice way of saying
to give) or to deny, which means

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to refuse bail, relies on the judge's
assessment of the likelihood of

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the defendant showing up to their
trial and the danger to society

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if they are left to roam freely
pending their trial.

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The Eighth Amendment to the US
Constitution does state that bail

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must not be excessive.

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So in so many words,
judges must take into account the

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financial means of the defendant
when setting the amount of the bail.

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It is unclear whether this portion
of the Eighth Amendment has been

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incorporated and applies to the
states as it does to the federal

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government.

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Now let's move to information and
grand jury.

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Formal charges, information and
grand jury.

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If the charges have not been dropped,
the defendant will be formally charged.

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In this class, we will focus on
grand juries.

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But let's first stress that only
22 states out of 50 require that

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defendants be indicted by grand juries.

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The other states merely provide
for the possibility to summon, so

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to convene, to assemble, a grand jury.

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Please bear with me for a short
pronunciation session.

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Indictment is really tricky to
pronounce, say in-die-te-ment.

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And then with the stress on the
second syllable indictment,

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the Fifth Amendment to the Constitution
provides for an indictment by grand

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jury.

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But the US Supreme Court has refused
to incorporate this section of

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the amendment.

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Also, the right to a grand jury
indictment can be waived,

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renounced, by the defendant in cases
where they risk a short prison

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sentence.

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So the not very serious offenses.

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But basically, what is a grand jury?

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I am looking for a clear explanation and mumbling (sorry ;-).

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Let me be clear about this.

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A grand jury can be compared to
the first step before what you know

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as a trial jury or a petit jury.

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Okay.

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So basically, the grand jury is
a gathering, a meeting of citizens

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who decide if the defendant should
be charged or not, contrary to

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the petit or trial jury,
which decides if the defendant

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is guilty or not.

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The grand jury decides if the charges
should be pressed or dropped.

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So basically, the petite jury cannot
take place and deliver a guilty

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or not guilty verdict unless the
grand jury has decided to indict

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the defendant in the first place.

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So a grand jury will

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hear

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witnesses, examine evidence and
determine if charges should be

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pressed or not.

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Another short pronunciation stop here.

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Although it is bizarre and illogical.

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Examine and determine or pronounced
ee and not I.

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So you say the phone is mine.

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You say electoral fraud undermines
democracy.

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Okay, but you say examine and
determine.

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Please remember this as these two
words and verbs are used constantly

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in legal English.

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But let's go back to grand juries.

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Congressional laws and the US Supreme
Court have clarified what they

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must look like.

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A grand jury is composed of 16
to 23 members who decide

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vote using the probable cause standard.

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They are supposed to represent
a fair cross-section of the community.

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It is not an adversarial process
in that only the prosecution presents

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its case.

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Now this is of crucial importance,
as it means that the defense has

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no right to make its own case or
to make a statement.

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The rules of evidence are not as
strict as at trial.

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Evidence that may be inadmissible
at trial can be introduced before

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grand jury, and the defense will
get no chance to challenge it.

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But remember, this is not the jury
that decides guilt.

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Only the jury that decides if the
prosecution should go ahead or not.

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Grand juries are closed to the public.

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It's called in-camera.

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Whatever is discussed must remain
secret.

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The defendant has no right to know
what evidence the prosecution is

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presenting, and witnesses cannot
have their lawyers present as whatever

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witnesses say they can be used
against them.

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In later proceedings,
witnesses are allowed to take the

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Fifth and remain silent,
although they can be forced to

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testify if there is an order granting
them immunity.

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In theory, grand jurors have the
right to subpoena any document

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and summon any witness they deem
necessary to their inquiries,

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their investigation,
and they have discretion to vary

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so to change, to modify, the charges
presented by the prosecution.

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In practice, though,
the prosecutor very often leads

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the proceedings and obtains an
indictment.

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A former New York state chief judge
famously declared in an interview

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that a prosecutor could get a grand
jury to indict a ham sandwich.

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There are cases where grand juries
somehow go beyond the supervision

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of the prosecution and end up doing
an amazing job.

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This is what happened in Detroit
in 2010 when a federal grand jury

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indicted the Democratic mayor,
Kwame Kilpatrick, in a large corruption

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case which resulted in a sentence
of 28 years in prison.

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After seven years of imprisonment,
Kwame Kilpatrick had his sentence

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commuted in the wave of pardons
of President Trump in the very

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last days of his presidency and
was released in January 2021.

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But that is another story.

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If you have a bit of time,
you can look it up on Google or

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Qwant or DuckDuckGo.

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Anyway, our last tricky bit of
pronunciation here, an important

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piece of vocabulary is subpoena.

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It is an order of the court for
a witness to appear at a particular

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time and place to testify or produce
certain documents.

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It is a nuclear weapon in the
litigation arsenal.

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One cannot escape a subpoena,
and they exist in several cases

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as well without being in contempt
of the court, which entails very

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serious consequences. Anyway,
when pronounced, say seu pee na 

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with the stress in the second syllable
subpoena.

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So all in all, grand juries is
a controversial issue, huh are 

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a controversial issue.

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I am correcting myself here, if they
merely rubberstamp, an expression

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to say that you validate whatever
you're given without even looking at it.

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If they merely rubberstamp what
is asked of them by the prosecution,

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It's a it's a complete waste of
time and money.

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But if it creates an interest in
justice for the average citizen

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and they are not manipulated by
the prosecution, it can be an

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interesting mechanism.

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Once the defendant is charged or
indicted.

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The next step is that

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of an arraignment.

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And we'll get to our final part.

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Arraignment and plea bargaining.

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Arraignment means appearing before
a judge who will read the charges

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filed against the defendant.

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Then the defendant will be asked
to enter a plea.

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A plea is basically when
you state as the defendant,

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where you stand in the trial,
how you intend to respond to the

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charges.

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There are three main pleas available
to a defendant, a not guilty plea,

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which means the case will proceed
to trial, a guilty plea,

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which means that the defendant
admits to all the charges in the

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indictment or information.

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In this situation, there will be
no trial but a pre sentencing phase

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and or a sentencing hearing.

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And nolo contenderere or no contest
plea, meaning that the defendant

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neither admits to nor denies the
charges against them.

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The one difference between a guilty
plea and nolo contendere is that

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the nolo contentere cannot be used
in civil proceedings to claim damages

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against the defendant.

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What you must bear in mind is that
the vast majority of criminal cases

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do not go to trial.

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90 to 97% of criminal cases,
depending on the sources and whether

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you focus on the state or federal
level end up with guilty pleas,

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the majority of which are the result
of plea bargaining.

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Bargaining means negotiation.

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When you bargain, you negotiate.

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This is why when something is a
bargain, it's usually something

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cheap that you negotiated.

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When a plea bargain is agreed on
between the prosecution and the

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defense.

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The defendant accepts to plead
guilty or nolo contendere in exchange

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for the prosecution reducing the
charge or dismissing some of the

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charges, requesting a reduced sentence,
etcetera.

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Plea bargaining may also involve
charges being dropped or lowered

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in exchange for the accused testifying
against a co-defendant.

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Whatever deal is reached,
it has to be entered in court and

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accepted by a judge in order to
be valid.

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The defendant gives up several
constitutional rights when entering

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into a plea bargain.

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The protection against
self-incrimination of the Fifth

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Amendment and the right to trial
by jury and the right to confront

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witnesses of the Sixth Amendment.

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Therefore, it's no surprise that
the US Supreme Court has stated

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in Boykin v Alabama and Bradley
United States that waiver of

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constitutional rights not only
must be voluntary, but must be knowing,

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intelligent acts done with sufficient
awareness of the relevant circumstances

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and likely consequences.

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A guilty plea generally entails
waiving your rights to appeal the

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conviction and the sentence unless
it is excluded from the deal.

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Please note that plea bargaining
has become so central to criminal

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proceedings that in 2012 the Supreme
Court ruled in Missouri v Frye

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and in LaFleur v Cooper that defendants
have a right to effective assistance

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of counsel at the plea bargaining
stage.

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There is so much to be said about
plea bargaining.

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On the one hand, it can be mutually
beneficial arrangement for the

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prosecution and defense,
which saves money and time for

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everyone.

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The defendant takes responsibility
for what they've done.

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Society does not have to pay lengthy
legal costs.

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If the defendant is indigent,
the prosecution gets an easy

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conviction.

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On the other hand, the victims
are denied the psychological process

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of attending trial, hearing the
evidence and witnesses.

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Also, such practices result in
the prosecution overcharging the

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suspect in order to later drop
charges that were not solid in

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the first place.

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Sentences are not coherent because
they depend on the aggressiveness of

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the prosecution and the skills
of the attorney.

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Having said this, I am saying goodbye
to you, dear students,

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after this long, long lesson and
see you next week.

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Take care.

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Bye bye.