The Pre-Trial Process
Arrest
Arrest is an actual or constructive seizure or detention of a person, usually by police officers, with the intent to effect an arrest. Once arrested, a citizen has a number of rights afforded to him, such as the right to be advised of his rights, the right to make a telephone call, and the right to a lawyer. Determining the actual moment of arrest can, therefore, be critical in defending the accused. A person is not necessarily under arrest because he voluntarily accompanies the police to the police station or submits to police interrogation.
The police officers or detectives interrogating a suspect will often postpone an arrest in an effort to thwart the individual’s exercise of his rights. Arrest is the most common form of bringing persons accused of crimes to court. Under Massachusetts law, the police are empowered to make warrantless arrests for misdemeanors occurring in their presence, certain misdemeanors occurring outside their presence, and felonies.
Indictment and the Grand Jury
In Massachusetts, with certain limited exceptions, to prosecute a citizen in Superior Court, a prosecutor must first secure an indictment. The grand jury is investigatory and accusatory body acting under the authority of the court. The prosecutor presents witness testimony and other forms of evidence before the grand jury for their consideration. The imposition of the grand jury into the accusatory process was designed as a check on unbridled government power to prosecute. Unfortunately, there is little to no judicial oversight of the grand jury process. The prosecutor, in reality, controls the entire process.
The prosecutor conducts direct examination of the witnesses he chooses to present. No criminal defense lawyer is present to cross-examine the witnesses. The prosecutor is not necessarily obligated to present exculpatory evidence before the grand jury. Following the prosecution’s presentation, the grand jury votes on whether there is “probable cause” to believe that the accused has committed the crime or crimes charged. The grand jurors do not determine guilt or innocence. The grand jury process offers dubious protection from unwarranted prosecutions. Defense lawyers often joke that “A competent prosecutor could indict a ham sandwich.” The Fifth Amendment to the U.S. Constitution – which does not apply to the state prosecutions – an indictment is a prerequisite to federal prosecution.
Arraignment
With few exceptions, arraignments are formal in-court proceedings. At arraignment, the clerk will read the charges pending against the accused. While the practice can vary from court to court, most clerks automatically enter a plea of not guilty to the charges on behalf of the accused. The prosecutor can ask the court to set bail (see below) or to hold the defendant without bail. Additionally, a prosecutor can file a motion asking the court to hold a person as a “dangerous person.”
Bail and Recognizance
“Bail” refers to the means for procuring the release of one formally charged with an offense. More simply put, the court, usually at the prosecutor’s request, sets bail at a certain monetary figure to ensure that the accused returns to court to answer to the criminal charges. The accused, who enjoys the presumption of innocence, cannot be released until he – or someone on his behalf – posts his bail with the clerk. Those incapable of raising their bail can petition the Superior Court for review of the bail. At such a hearing, the Superior Court judge can eliminate the bail, lower the bail, or raise the bail. Those individuals who cannot make bail are confined to the county jail until their case is resolved. Some unfortunates, because of jail overcrowding, will be transferred to the House of Correction.
A court can revoke a person’s bail if he commits another criminal offense while released on bail, violates a provision of his release (such as a stay away order) or fails to appear at court on his next scheduled court date. The bail, if not forfeited, will be returned to the defendant or the person who posted the bail at the conclusion of the case.
Pre-Trial Conferences
Following arraignment, the case is normally scheduled within a month or two for a pre-trial conference. At the pre-trial conference, defense lawyers and prosecutors may enter into discovery agreements, complete a pre-trial conference report, begin and/or finalize plea negotiations, and exchange discovery. The Defense lawyer may file and argue non-evidentiary motions, such as discovery motions. At the conclusion of the pre-trial conference, the defense lawyer and prosecutor may set the case down for a “status” date, set a date for an evidentiary hearing on a motion, or for trial. Normally, neither alleged victims, witnesses nor police officers are usually present at a pre-trial conference.
Evidentiary Hearings
At an evidentiary hearing, usually on a motion to suppress filed by a defense lawyer, a prosecutor conducts direct examination of witnesses – usually police officers or detectives – whose testimony he anticipates will demonstrate to the court that the motion should be denied. The defense lawyer is given an opportunity to cross-examine the witness. While the goal of the defense lawyer filing such a motion is win the motion, the hearing provides the defense lawyer with, more than likely, the only pre-trial opportunity he will have to cross-examine these witnesses. If the defense lawyer skillfully exploits this potential gold mine of evidence favorable to the defendant, the transcripts of the hearing will prove in invaluable cross-examination tool at trial.
