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NCJRS Abstract

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NCJ Number: 69789 Find in a Library
Title: Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction Without Adjudication
Journal: Michigan Law Review  Volume:78  Issue:4  Dated:(February 1980)  Pages:463-585
Author(s): P Arenella
Date Published: 1980
Page Count: 123
Format: Article
Language: English
Country: United States of America
Annotation: The substitution of plea bargaining for the criminal trial as a primary method for determining legal guilt requires a fundamental reassessment of pretrial screening processes.
Abstract: It no longer makes sense to rely primarily on the trial to safeguard essential accusatorial principles when pretrial screening devices, such as the preliminary hearing and the grand jury, usually provide the only independent adjudication of the defendant's guilt before conviction. A fair accusatorial process reliably adjudicates defendants' factual guilt while safeguarding their individual rights. In view of this argument, this text examines the present pretrial screening process. Screening standards used to evaluate factual guilt and legal guilt are identified; and formal stages of pretrial review are assessed, to determine whether they screen out cases where substantial doubt exists concerning a defendant's factual guilt. Since the pretrial process does not require the government to present compelling evidence of factual guilt, prosecutors can and sometimes do get indictments despite insufficient evidence to support a conviction at the time of indictment. The balance of advantage between the State and the accused during plea bargaining is examined; the conclusion reached is that the pretrial process dilutes the system's capacity to protect accusatorial values by confining most legal guilt requirements to a part of the process that few defendants reach. The pretrial process must be reformed to ensure greater protection of the accusatorial values embodied in legal guilt requirements. Finally, the grand jury's present tendency to rubberstamp the prosecutor's decisions stems far more from the limited role the Supreme Court has assigned to it than from any institutional incapacity. Extensive footnotes are provided, and model reform statutes are appended.
Index Term(s): Grand juries; Investigative powers; Laws and Statutes; Plea negotiations; Pretrial procedures; Prosecutorial screening
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