What Happens During the Pretrial?

As impressive as any courtroom drama may be, the criminal proceedings themselves often pale in comparison to the amount of preparation that goes into them. By the time the jury has appeared on the scene, the bulk of the action has already taken place. It’s often the most important part of the process, and it’s the part that the public rarely sees.

The period begins with the suspect’s arrest and continues unabated through the pretrial motions with a good deal of activity in between.

The Pretrial Process: First Things First

Once the police have a suspect in custody, the decision of whether to proceed to trial is left to either the prosecutor or a grand jury. In 25 of the 50 states, a grand jury will sometimes make this determination, particularly in a federal case. Nevada is one of these states.

Grand jury hearings proceed secretly and in private. Hearsay evidence will be admissible, and while the prosecution is free to present its case, the defendant cannot appear on his own behalf. If most grand jurors agree that probable cause exists, it will approve an indictment.

In all other cases, the prosecutor will make that determination. As a government employee with an interest in protecting health of the government’s coffers, he or she will commonly offer the defendant a plea bargain as an alternative to trial. Under this agreement, the suspect agrees to plead guilty at the start. In return, the prosecutor will potentially:

• Lower the charges against the defendant.
• Recommend a lighter sentence than the defendant would likely receive if convicted at trial.

Despite what the prime-time television shows might lead you to believe, most criminal cases will never see the inside of a courtroom. As many as 90 percent of defendants will choose to skip the uncertainty of a trial and accept the plea bargain instead.

The Charging Document

If the prosecution fails to offer a plea bargain or the defendant declines to accept one, the prosecutor will press charges by filing a charging document in a lower court. This legal accusation against the defendant can consist of the indictment, the information, or both. Each will state the details of the charge.

After reviewing the charging document, a lower court judge will decide whether sufficient legal grounds exist to establish probable cause. If so, he will set a date and time at which the defendant must appear in court.

The Arraignment or Initial Appearance

At this preliminary session, the defendant appears before the lower court judge to hear a detailed statement of the charges against him and plead his guilt or innocence. The judge will apprise the defendant of his rights and offer to appoint counsel at the government’s expense. Finally, unless he deems the defendant too dangerous to walk the streets, the judge will provide some temporary freedom by setting bail.

The Preliminary Hearing

Although the different states will vary in this regard, the preliminary hearing is a standard next step in Nevada felony or gross misdemeanor cases. At this hearing, the prosecution will attempt to convince the judge that it does have probable cause to press charges and proceed to trial. During the preliminary hearing, the judge may change the charges against the defendant or add some that did not previously exist, and the defense attorney will continue to negotiate a plea bargain.

The preliminary hearing will normally take place between two weeks and three months following the arraignment. However, the defendant can waive the right to a preliminary hearing. In addition, if a grand jury has already handed down an indictment, the preliminary hearing will not take place.

The Pretrial Release

Few judges will let a suspect walk free before trial without some assurance of their return. To this end, they often require defendants to post bail in the form of cash or personal belongings. The return of the money or valuables will coincide with the reappearance of the defendant. If he or she skips bail and fails to show up for the next scheduled court date, bail is forfeited to the government.

In setting the bail amount, the judge will consider such factors as:

• The crime’s severity.
• The suspect’s pre-existing criminal record, if any.
• The bulk of the evidence supporting the government’s case.

The judge may choose to forego bail entirely, instead releasing the defendant on his or her own recognizance in accordance with the promise to reappear. A decision such as this will exist at the sole discretion of the judge.

Not everyone gets to enjoy those weeks or months of freedom before trial. An inability to make bail has kept many a defendant locked away behind bars. Furthermore, some judges will deny the option to suspects when a prior criminal record or history of violent behavior argues strongly against it.

Pretrial Motions

Before the trial begins, the prosecution and defense will make pre-trial motions before the judge in which they argue for such things as the exclusion of certain pieces of evidence or the suppression of witness testimony. If the jury at the current location might exhibit unusual prejudice, the defense attorney may argue for a change of venue. When circumstances permit, he or she might file a motion to dismiss the case entirely.

When all the necessary pretrial phases have reached a conclusion, the judge will reach a final determinate. He will either dismiss the case entirely, or he will set a date for trial.

Your Criminal Defense Attorneys

In many respects, the pretrial period often matters more than the actual trial itself. In fact, the potential for avoiding the trial entirely could be its biggest boon. To benefit the most from the process, though, the assistance of a criminal attorney is vital. The lawyers at Weiner Law Group understand the ins and outs of the complicated criminal justice system. We have successfully defended the rights of countless defendants, and if you are facing charges of your own, the Weiner Law attorneys will do the same for you. Call 702-202-0500 today.