9.3 Pretrial proceedings

The pretrial process in criminal cases involves crucial steps between arrest and trial. From initial appearances to bail determinations, preliminary hearings, and arraignments, this phase protects defendants' rights and allows both sides to prepare their cases.

Pretrial proceedings include motions, discovery, and evidentiary issues that shape the trial. Bail decisions, diversion programs, and grand jury proceedings also play key roles. Understanding these elements is essential for grasping how criminal cases unfold before reaching trial.

Pretrial process overview

• The pretrial process in criminal cases encompasses the stages and procedures that occur after a defendant is arrested but before the trial begins
• Key steps in the pretrial process include initial appearance, bail determination, preliminary hearings, grand jury proceedings, arraignment, pretrial motions, and discovery
• The pretrial process is designed to protect the defendant's constitutional rights, determine probable cause, and allow both the prosecution and defense to prepare their cases

Pretrial motions

Common defense motions

Top images from around the web for Common defense motions

• 

  Jurisdiction, Types of Law, and the Selection of Judges | Texas Government View original

  Is this image relevant?

• 

  1 View original

  Is this image relevant?

• 

  Beyond a Reasonable Doubt - Criminal Law Notebook View original

  Is this image relevant?

• 

  Jurisdiction, Types of Law, and the Selection of Judges | Texas Government View original

  Is this image relevant?

• 

  1 View original

  Is this image relevant?

1 of 3

Top images from around the web for Common defense motions

• 

  Jurisdiction, Types of Law, and the Selection of Judges | Texas Government View original

  Is this image relevant?

• 

  1 View original

  Is this image relevant?

• 

  Beyond a Reasonable Doubt - Criminal Law Notebook View original

  Is this image relevant?

• 

  Jurisdiction, Types of Law, and the Selection of Judges | Texas Government View original

  Is this image relevant?

• 

  1 View original

  Is this image relevant?

1 of 3

• Motion to dismiss the charges argues that the prosecution lacks sufficient evidence or that there are legal defects in the case
• Motion to suppress evidence seeks to exclude evidence obtained in violation of the defendant's constitutional rights (illegal search and seizure)
• Motion for a bill of particulars requests more detailed information about the charges to prepare an adequate defense
• Motion for a change of venue asserts that the defendant cannot receive a fair trial in the current jurisdiction due to prejudice or pretrial publicity

Common prosecution motions

• Motion to amend the complaint or indictment seeks to modify the charges based on new evidence or to correct errors
• Motion for a protective order aims to limit the disclosure of sensitive information or protect witnesses from harassment
• Motion for joinder requests that multiple charges or defendants be tried together for efficiency and consistency
• Motion for a gag order prohibits the parties, attorneys, and witnesses from discussing the case with the media to avoid prejudicial publicity

Motion hearings

• Pretrial motion hearings allow the court to consider and rule on motions filed by the prosecution and defense
• Evidentiary hearings may be held to determine the admissibility of evidence, such as in suppression hearings
• The judge's rulings on pretrial motions can significantly impact the course of the case and the evidence presented at trial
• Some motions, such as those challenging the sufficiency of the evidence, may result in the dismissal of charges if granted

Bail and pretrial release

Bail eligibility factors

• The court considers the defendant's criminal history, ties to the community, flight risk, and danger to public safety when determining bail
• The nature and severity of the alleged offense also influence bail decisions, with more serious crimes often resulting in higher bail amounts or denial of bail
• The defendant's financial resources and ability to post bail are considered to ensure that bail is not excessive or discriminatory
• In some jurisdictions, risk assessment tools are used to evaluate the defendant's likelihood of appearing in court and potential for recidivism

Bail conditions and restrictions

• If released on bail, the defendant may be subject to conditions such as electronic monitoring, travel restrictions, or contact prohibitions with victims or witnesses
• The court may require the defendant to maintain employment, attend substance abuse treatment, or comply with a curfew as conditions of release
• Violating bail conditions can result in revocation of bail and pretrial detention
• Some jurisdictions have implemented pretrial supervision programs to monitor defendants released on bail and ensure compliance with conditions

Pretrial detention vs release

• Pretrial detention may be ordered if the defendant poses a significant flight risk or danger to the community, or if the offense is particularly serious
• Defendants who are denied bail or unable to post bail remain in custody until trial or until bail conditions are modified
• Pretrial release allows defendants to continue working, caring for family members, and preparing their defense while awaiting trial
• Studies have shown that pretrial detention can have negative impacts on case outcomes, plea bargaining, and the likelihood of receiving a prison sentence

Preliminary hearings

Probable cause determination

• The primary purpose of a preliminary hearing is to determine whether there is probable cause to believe that the defendant committed the alleged crime
• The prosecution must present sufficient evidence to establish probable cause, which is a lower standard than the "beyond a reasonable doubt" required for conviction at trial
• The judge evaluates the evidence presented and decides whether the case should proceed to trial or be dismissed for lack of probable cause
• In some jurisdictions, the defendant may waive the right to a preliminary hearing and proceed directly to trial or enter a plea bargain

Witness testimony at prelims

• The prosecution typically calls witnesses to testify and be cross-examined by the defense during the preliminary hearing
• Law enforcement officers involved in the investigation or arrest may testify about their observations, evidence collected, and statements made by the defendant or witnesses
• Victims or eyewitnesses may also be called to provide testimony about their knowledge of the alleged crime
• The defense has the opportunity to challenge witness credibility, identify inconsistencies, and explore potential defenses through cross-examination

Prelim outcomes and next steps

• If the judge finds probable cause, the case is "bound over" to the trial court for further proceedings, such as arraignment and trial
• If probable cause is not established, the judge may dismiss the charges, and the defendant is released from custody or bail obligations
• In some cases, the prosecution may file an amended complaint or seek an indictment from a grand jury if the preliminary hearing does not result in a finding of probable cause
• The evidence and testimony presented at the preliminary hearing can provide valuable information for both the prosecution and defense in preparing for trial or negotiating a plea bargain

Grand jury proceedings

Grand jury vs preliminary hearing

• In some jurisdictions, a grand jury is used instead of or in addition to a preliminary hearing to determine whether there is sufficient evidence to charge a defendant
• Grand jury proceedings are conducted in secret, without the presence of the defendant or their attorney, unlike preliminary hearings which are typically open to the public
• The grand jury hears evidence presented by the prosecution and can subpoena witnesses and documents, but the defense does not have the right to present evidence or cross-examine witnesses
• The grand jury decides whether to issue an indictment (true bill) or a no bill, rather than making a probable cause determination like in a preliminary hearing

Grand jury secrecy rules

• Grand jury proceedings are conducted in secret to protect the integrity of the investigation, encourage witness cooperation, and prevent suspects from fleeing or tampering with evidence
• Grand jurors, prosecutors, and court personnel are prohibited from disclosing information about the proceedings, except in limited circumstances provided by law
• Witnesses who testify before the grand jury are generally not bound by secrecy rules and may discuss their testimony, unless specifically ordered otherwise
• In some cases, transcripts of grand jury proceedings may be released after the investigation concludes or upon court order, but with sensitive information redacted

Indictments and true bills

• If the grand jury finds sufficient evidence to charge the defendant, they issue an indictment or "true bill," which is a formal accusation of a crime
• The indictment typically contains the specific charges, the defendant's name, and a brief description of the alleged criminal conduct
• In some jurisdictions, the prosecution may file an information instead of an indictment, which is a similar charging document but does not involve a grand jury
• If the grand jury does not find sufficient evidence, they issue a "no bill," and the charges are not pursued, although the prosecution may present additional evidence to a new grand jury

Arraignments

Initial appearance vs arraignment

• The initial appearance is a defendant's first appearance before a judge after arrest, where they are informed of the charges and their rights, and bail is determined
• An arraignment is a later stage in the pretrial process where the defendant enters a formal plea to the charges (guilty, not guilty, or no contest)
• In some jurisdictions, the initial appearance and arraignment may be combined into a single hearing
• The timing of the arraignment varies depending on the jurisdiction and whether the defendant was indicted by a grand jury or charged by information

Entering a plea at arraignment

• At the arraignment, the defendant is asked to enter a plea to the charges
• If the defendant pleads guilty, the case proceeds to sentencing, and there is no trial
• A plea of not guilty indicates that the defendant contests the charges and requires the prosecution to prove guilt beyond a reasonable doubt at trial
• In some cases, the defendant may enter a no contest (nolo contendere) plea, which is not an admission of guilt but is treated as a conviction for sentencing purposes

Arraignment and speedy trial rights

• The arraignment triggers the defendant's speedy trial rights, which require that the trial be held within a specified time frame (varies by jurisdiction)
• Speedy trial rights are designed to prevent unnecessary delays and protect the defendant's right to a fair and timely resolution of the case
• If the defendant is not brought to trial within the required time frame, they may move to dismiss the charges based on a speedy trial violation
• In some cases, the defendant may waive their speedy trial rights to allow more time for trial preparation or plea negotiations

Pretrial discovery

Prosecution's discovery obligations

• The prosecution has a constitutional duty to disclose exculpatory evidence (Brady material) that is favorable to the defendant and material to guilt or punishment
• Under discovery rules, the prosecution must provide the defense with copies of police reports, witness statements, expert reports, and other relevant evidence
• The prosecution must also disclose any plea agreements or promises made to witnesses in exchange for their testimony
• Failure to comply with discovery obligations can result in sanctions, exclusion of evidence, or dismissal of charges

Defense discovery requests

• The defense may file discovery motions to obtain specific evidence or information from the prosecution
• Common defense discovery requests include witness lists, criminal records of prosecution witnesses, and any evidence that may support defenses or mitigate punishment
• The defense may also seek to interview prosecution witnesses or conduct its own investigation to prepare for trial
• In some jurisdictions, the defense must provide reciprocal discovery to the prosecution, such as notice of alibi defenses or expert witness testimony

Reciprocal discovery requirements

• Many jurisdictions have adopted reciprocal discovery rules that require the defense to share certain evidence with the prosecution
• Reciprocal discovery may include notice of defenses (alibi, insanity, self-defense), witness lists, expert reports, and any evidence the defense intends to introduce at trial
• The purpose of reciprocal discovery is to prevent "trial by ambush" and ensure that both sides have access to relevant evidence before trial
• Failure to comply with reciprocal discovery requirements can result in exclusion of evidence or other sanctions against the defense

Pretrial diversion programs

Diversion eligibility and conditions

• Pretrial diversion programs offer eligible defendants an opportunity to avoid criminal conviction by completing certain conditions and requirements
• Eligibility for diversion varies by jurisdiction and program but often depends on factors such as the nature of the offense, criminal history, and victim consent
• Common diversion conditions include community service, restitution, counseling, substance abuse treatment, and education or job training programs
• Participants in diversion programs are typically supervised by probation officers or program staff to ensure compliance with conditions

Diversion and dismissal of charges

• If the defendant successfully completes the diversion program and all required conditions, the criminal charges are typically dismissed
• Dismissal of charges through diversion allows the defendant to avoid a criminal record and the collateral consequences of a conviction
• In some cases, the defendant may be required to admit responsibility or enter a conditional plea before entering a diversion program, which can be used against them if they fail to complete the program
• Some jurisdictions offer post-plea diversion programs, where the defendant enters a guilty plea but the conviction is withheld pending completion of the program

Diversion vs traditional prosecution

• Pretrial diversion programs offer an alternative to traditional criminal prosecution and can benefit both the defendant and the criminal justice system
• Diversion can reduce court caseloads, save resources, and reduce recidivism by addressing underlying issues that contribute to criminal behavior
• Critics argue that diversion programs may be inconsistently applied, favor certain defendants, or lack sufficient oversight and accountability
• In some cases, defendants may prefer to fight the charges through traditional prosecution rather than admit responsibility and complete diversion requirements

Pretrial evidentiary issues

Admissibility of evidence at trial

• Pretrial evidentiary issues often focus on the admissibility of evidence at trial, which is governed by rules of evidence and constitutional principles
• The prosecution and defense may file motions to exclude or admit specific pieces of evidence based on relevance, reliability, and potential prejudice
• Common evidentiary issues include the admissibility of confessions, eyewitness identifications, expert testimony, and character evidence
• The court may hold evidentiary hearings to determine the admissibility of evidence and hear arguments from both sides

Motions to suppress evidence

• Motions to suppress evidence are filed by the defense to exclude evidence obtained in violation of the defendant's constitutional rights
• Common grounds for suppression include illegal searches and seizures (Fourth Amendment), coerced confessions (Fifth Amendment), and violation of the right to counsel (Sixth Amendment)
• If the court grants a motion to suppress, the evidence is excluded from trial and cannot be used by the prosecution
• The exclusion of key evidence through suppression motions can significantly weaken the prosecution's case and may lead to dismissal of charges or a more favorable plea bargain for the defendant

Pretrial rulings on evidence

• The court's pretrial rulings on evidentiary issues shape the evidence that will be presented at trial and can have a significant impact on the outcome of the case
• Pretrial rulings may exclude or limit the use of certain evidence, such as hearsay statements, character evidence, or expert testimony
• In some cases, pretrial rulings may require the prosecution to disclose additional evidence or provide more specific information to the defense
• Adverse pretrial rulings on evidentiary issues may lead the prosecution or defense to reevaluate their case strategy, consider a plea bargain, or file an interlocutory appeal to challenge the ruling before trial.