The Pre-Trial Process

The police carry out an investigation to uncover details about the crime and gather any evidence against the suspect. The police and prosecution need evidence to establish probable cause in order to arrest the suspect, but they cannot make an arrest without a legal summons. Thus, the police or prosecution must file a complaint with the district court regarding the crime. If the crime is a felony, however, and the police have probable cause to believe that a specific person committed the crime, they can arrest the suspect without a legal summons. In this case, they file for a warrant after the arrest.

Law enforcement personnel must file an affidavit, a legal statement signed by the police that describe the nature and seriousness of the crime, time, the probable cause, and the role of the suspect, along with the complaint. After this process, the prosecutor submits a request for a warrant to the court, and a judge authorizes the Warrant for Arrest by signing it.

After making the arrest, the police book the suspect, wherein the police record a number of facts about the suspect. These facts include identification details such as physical appearance, date of birth, driver’s license number, and so on.

If the police have made the arrest based on probable cause (in the absence of an official complaint), they can hold the suspect at a local jail only for 48 hours. During these 48 hours, the victim or state must file official charges against the suspect, which is the next step in the pretrial criminal justice process. Although the laws vary across states, the police must release the suspect if the victim or the state fails to press charges within 48 hours. However, the police can arrest the suspect a second time when the victim or the state’s prosecution is ready to take the next legal step. However, the law enforcement agency and the prosecution must file a case against the suspect within the statutes of limitation; that is, within a specified period that varies depending on the seriousness of the crime. Some crimes, such as homicide, robbery, and so on, do not have a statute of limitations. In many cases, the victim is no longer available (and is either dead or incapacitated), and the prosecution must bear these legal limits in mind when filing criminal charges.

If the arrest has been made using a warrant, evidence and necessary elements of the crime have already been reviewed by the prosecutor and the signing judge. However, following an arrest based on probable cause, the prosecuting attorney first analyzes the criminal charges and the evidence collected by the police against the suspect. If the evidence is not enough to establish probable cause against the suspect, the attorney cannot press charges and the suspect is free to go. However, if the prosecuting attorney finds the charges and evidence satisfactory, the case moves ahead.

In the next step of the pretrial process, known as an initial appearance, the suspect appears before a magistrate judge. The judge studies the facts and legitimacy of the case filed against the suspect. The judge also informs the suspect of all his legal rights. If the suspect cannot afford a lawyer, the court appoints a defense attorney at no cost to the suspect. At this stage, the suspect also hears all the charges filed by the prosecutor.

At this time, the magistrate judge also decides whether to grant bail to the suspect. Bail is a sum of money that the suspect pays the court to secure release with a promise to attend all criminal proceedings in the future. The bail amount depends on the seriousness of the crime with which the police charge the suspect. The more serious the nature of the criminal act, the greater the amount of money that the suspect must pay to get the bail sanctioned. The court might even deny bail to a suspect if the person poses a threat to society or is a flight risk. The courts consider extremely violent crimes to be non-bailable offenses, and judges typically deny bail to suspects suspect of such crimes.

The next part of the pretrial process is the preliminary hearing. During this hearing, the magistrate judge discusses the case with the defense and the prosecution. The main purpose of a preliminary hearing is to establish probable cause to the judge. The prosecuting attorney must establish that the crime occurred, and then explain the law violated by the crime, the probable cause to believe that the suspect committed the crime, and the timeframe in which the suspect committed the crime. At this stage, the prosecution can drop some of the charges or include new charges against the suspect.

The defense attorney can then challenge the reliability and relevance of the evidence and witnesses presented against the defendant (the suspect). The judge may find that the evidence and witnesses are not enough for a reasonable person to believe that the suspect committed the crime. In that case, they may dismiss the charges with prejudice, which means that the prosecution cannot charge the suspect with the same crime again, or without prejudice, which means that the prosecution can file charges against the client after strengthening the case with additional evidence. The prosecution would need to re-file the case within the pertinent statutes of limitations. If the judge finds the evidence to be adequate, the pretrial process moves to the next step.

In some states, the prosecutor might present a case before a grand jury. A grand jury consists of a panel of citizens appointed by the court, and it typically serves for a year before the court dismisses it from duty and replaces it with another panel of citizens.

When using a grand jury system, the prosecution needs to convince the grand jury that the evidence and witnesses are sufficient to prove to a reasonable person that the suspect committed the crime. After hearing the facts of the case, the grand jury decides whether there is probable cause to believe that the suspect committed the crime. The grand jury’s decision reflects a majority of votes against or in favor of the suspect with regard to probable cause. If a majority of the grand jury votes is against the suspect, it “returns a true bill.” In such a case, the charges take the form of a legal document known as an indictment, which goes to the court. After an indictment, the pretrial process moves forward with the arrest of the suspect (if the police did not arrest the suspect based on the outcome of an initial appearance).

On the other hand, if a majority of the grand jury votes is in favor of the suspect, it “returns a no bill.” In this case, since an indictment does not go to the court, the pretrial process does not move forward. However, the prosecution still has the right to seek criminal charges and proceed to a preliminary hearing.

A major distinction between a preliminary hearing and a grand jury hearing is that the defense attorney is not part of the grand jury system. In such a case, until the court issues an arrest warrant against the suspect, the lawyer is not aware of the charges and indictments. The law forbids members of the grand jury from discussing the case outside the courtroom. Thus, the state bases the grand jury system on confidentiality.

The grand jury system can prove helpful in cases with multiple suspects. For instance, a drug trafficking case might involve several people. Since the grand jury operates secretly, the suspects may not be aware that law enforcement is charging them with a crime until the grand jury returns an indictment. Since the suspects are unaware that they may be arrested, it’s easier for the police to trace them and take them into custody.

An arraignment is a hearing that takes place in a courtroom, before the trial begins. A magistrate judge presides over this, and oversees the arguments of the defense and the prosecution. At this stage, the state has legally charged the suspect with the crime, and the suspect officially becomes the defendant in criminal proceedings. During an arraignment, the judge informs the defendant of the number and nature of the charges filed by the prosecution. These charges might not be the same as they were at the beginning of the pretrial process. For example, the prosecuting attorney might reduce a charge of burglary to trespassing. Alternatively, if the state accuses the defendant of committing several crimes at the beginning of the pretrial process, the prosecutor might only charge the defendant with one crime during the arraignment. The prosecution reduces or modifies criminal charges based on the most valid and useful evidence that the police have against the defendant. This helps the prosecution build a stronger case to gain a conviction. After an arraignment, the prosecution cannot modify the charges against the defendant. In some states, the arraignment is clubbed with the initial appearance. 

During the arraignment, the magistrate judge asks the defendant to enter a plea. A plea is a statement that the defendant or the defense attorney makes regarding guilt or responsibility for the crime. The defense can make one of three pleas—not guilty, guilty, or no contest. If the defendant pleads not guilty, the judge sets the trial date, and the pretrial process moves to its next stage.

Even if the defendant refuses to answer when asked for a plea, the judge fixes a trial date, assuming that no response is a not guilty plea. In addition, if the judge believes that the defendant is incapable of understanding the charges filed by the state, the judge has the right to enter a not guilty plea on the defendant’s behalf and set a trial date for the future. In either case, the judge must set a trial date in accordance with the Speedy Trial Act of 1974. The US Supreme Court passed this act to end long delays in criminal cases going to trial. Federal prosecutors would neglect a few cases for some time, focusing on cases of greater importance. The Speedy Trial Act of 1974 established a time limit between filing charges against the defendant and the beginning of the defendant’s trial. According to the Act, the prosecutor has 30 days to obtain an indictment after charging the defendant with a crime. The Act also states that a prosecutor has 70 days to begin the trial after obtaining an indictment. Thus, the Act stated that the period between the defendant’s arrest and trial should not be more than 100 days. However, the government later increased the maximum number of days (considering unavoidable delays and other reasons) to 180 days.

If the defendant enters a guilty plea, it means that the defendant accepts responsibility for the crimes. In such cases, the justice system does not require a trial. The court conducts a pre-sentence investigation, unless the crime involved is minor, such as littering or disorderly conduct. After the investigation, the criminal justice process reaches an end when the judge sentences the defendant.

If the defendant pleads no contest, it means that that person does not accept guilt for the crime, but will accept the punishment declared by the court. The benefit of a no contest plea is that the defendant does not admit to the crimes. In other words, the defendant does not admit to being guilty. If the victim of the crime takes the defendant to a civil court, the victim cannot use the defendant’s no contest plea to establish guilt, whereas the defendant’s guilty plea is admissible as evidence. By pleading no contest, the defendant retains the right to appeal the court’s ruling.

Criminal trials involve a lot of expense, time, and use of state resources. This is why the defense and the prosecution often try to arrange a plea agreement through the process of plea bargaining instead of going to trial. Plea bargaining is a discussion between the defense and the prosecution wherein they attempt to come to an agreement about a suitable punishment for the defendant. If they can reach an agreement, the defendant changes the plea from not guilty to guilty. For instance, the prosecution might offer the defendant a lighter sentence than would be likely if a jury convicted the defendant of the crime. A plea agreement is standard practice when the defense attorney and defendant know that they don’t stand a good chance of winning the case if it goes to trial. In cases where the prosecution does not have a strong case, the state might offer a relatively favorable deal to the defense. A judge must approve the plea agreement discussed between the parties before it is final.

Due to plea bargains in the United States, the defendant ends up pleading guilty during the pretrial process in almost 90 percent of criminal cases. Thus, most cases do not go to trial. Plea bargaining has its supporters and dissenters. However, its dissenters comprise both conservatives and liberals. Conservatives believe that plea bargaining helps a defendant get away with a lighter sentence than justifiable for the crime. In contrast, liberals believe that plea bargains might lead to innocent defendants pleading guilty and serving time for crimes they did not commit.

A pretrial motion is a written legal request made to the judge for a decision about a specific facet of the case before the trial begins. Such motions are part of the rules of evidence, which determine what evidence the prosecution can and cannot present in court. For example, irrelevant evidence or evidence obtained through illegal means is inadmissible during the trial.

The defense and the prosecution have the right to file a motion for continuance, which requests the judge to postpone the trial. They might request such a delay if the attorneys, victim, or witnesses are unwell, or are unavailable for some time. The prosecution or defense might also file such a motion if either side requires more time to strengthen its case, such as locating additional witnesses and experts, gathering more evidence, and so on. However, a continuance request must adhere to the time constraints laid out in the Speedy Trial Act of 1974.

nly the defense has the right to file a motion for discovery. Such a motion requests that the judge make the prosecutor’s evidence, list of witnesses, police files, recorded interviews, and other details pertaining to the case available to the defense before the trial starts. The defense has this right because the courts believe that the state (prosecution) always has an advantage, since it has resources such as law enforcement agencies on its side. Thus, the defense has a right to investigate the evidence and witnesses that the prosecution will present in the trial.

The motion for discovery helps the defense attorney prepare a strong case for the defendant. Note that the federal government and various states provide the prosecution with some discovery rights.

Either the defense or the prosecution can file this motion to request that the judge change the location of the trial. The reason for filing such a motion is if either side suspects that the media or local opinion might bias a local jury, who will be responsible for the final verdict. For example, jury members with prior knowledge of the case might have an opinion regarding the defendant’s guilt before the trial begins. A change in venue helps avoid such bias. The judge decides whether to grant or deny such a motion based on the effort and expense involved. If granting the motion, the judge must also determine the new venue for the trial.

If the police violated the rules of evidence in order to obtain evidence against the defendant, the defense can file a motion to suppress. In other words, the defense has the right to file a motion for suppression, which states that the prosecution may not use unconstitutionally obtained evidence in the trial. Evidence obtained by violating the defendant’s constitutional rights might be tangible, such as a gun, or intangible, such as the defendant’s confession. For instance, if the police forced the suspect to confess to the crime, even after the suspect asked for a lawyer, the defense can suppress that confession. When granted, a motion for suppression can severely weaken the prosecution’s case.

The defense can file this motion if the prosecution charges the defendant with illegal possession of certain items such as weapons, burglary tools, drugs, and so on. A motion for a bill of particulars helps the defense obtain a list of all the items that the prosecution plans to present during the trial as illegal. Knowing what the prosecution will present can help the defense prepare a better case and prove that the possession of the illegal item was without any criminal intent. Recall that the prosecution must establish criminal intent on the part of the defendant to prove guilt beyond reasonable doubt.

If the prosecution charges the defendant with multiple crimes, the prosecution prefers to take the defendant to trial on all the charges at once. Similarly, if the prosecution charges two or more defendants of a crime, such as a robbery, the prosecution would want to take them to trial together. In cases of multiple charges or multiple defendants, the prosecutor can usually build a stronger case against the defense. While this situation is preferable for the prosecutor, the defendant may not get a fair trial. In such cases, the defense has the right to file a motion for severance of charges or defendants. This motion requests that the prosecution take the defendant to trial on one charge at a time, or that the prosecution takes the defendants involved in a single crime to trial individually.

The defense can file a motion for dismissal, requesting the judge to dismiss the charges against the defendant. The reasons for such a motion include inadequate evidence and witnesses against the defendant, violation of the defendant’s rights, and so on. The judge might grant a motion for dismissal in one of two ways—with prejudice or without prejudice. If the judge grants the motion with prejudice, the prosecution cannot charge the defendant with the same crime in the future. However, if the judge grants the motion without prejudice, the defendant will not have to face a trial at that time, but the prosecution retains the right to collect more evidence, correct any errors, prepare a stronger case, and take the defendant to trial in the future.

The court selects a jury from a jury pool through a process known as voir dire.

During this process, the two attorneys (defense and prosecution) and the judge interview potential jurors. During the interview, they question potential jurors about their knowledge of the case gained from media reports, any personal connections to any party involved in the trial, past experiences as victims in similar crimes, and current opinions about the nature of the crime. These questions ensure that the potential jurors have no bias towards the defense or the prosecution.

The voir dire process helps select twelve (or six, depending on the state’s and the case’s requirements) jurors to form the jury. The court also selects two alternate jurors, in case it must replace a juror who is unable to remain on the jury for any reason. 

Both the prosecution and defense attorneys try to influence the jury composition. Each side wants to select jurors who are more inclined towards their case. The attorneys try to exclude potential jurors who seem biased against their side. The attorneys can use two types of challenges to exclude a potential juror challenge for cause, and peremptory challenge.

In the case of a challenge for cause, an attorney wants to exclude a juror if the latter seems biased against the defendant or victim for any reason. For instance, the defense attorney might assert bias on the part of a juror if the juror was the victim of a crime similar to that charged to the defendant. There is no limit to the number of challenges for cause. The judge decides whether to exclude a juror based on each challenge for cause. An attorney might also use a peremptory challenge to exclude a juror. This challenge reflects the attorney’s own opinion, and the attorney does not need to disclose the reasoning to the judge. Generally, an attorney uses a peremptory challenge as a secondary attempt to exclude a juror if the judge rejects a challenge for cause. Peremptory challenges are limited in number, and set by individual state statutes for state cases and federal statutes for federal cases.

When the court excludes jurors from a particular trial, the jurors go back to the jury pool and wait for the court’s order to be part of another trial and perform their jury duty. Jury duty is the service that a citizen must provide to the justice system.