After a person is charged with a crime, the case proceeds through a series of court hearings. Before a trial date, hearings may be held to set bail, to formally charge the defendant, to schedule later proceedings, to enter a plea bargain, or to hear motions or resolve other pretrial issues.
The first hearing in a criminal case may involve the setting of bail, the arraignment of the defendant, or both.
If bail or bond was not previously set, a defendant who is in custody will have a bail hearing. The hearing is scheduled as soon as is reasonably possible after the person is charged. Most bail hearings are held within twenty-four hours, but it may take longer to set bail over a weekend or in the event of a court holiday. Some states require that bail be set within forty-eight hours, and under the U.S. constitution the bail hearing must occur within seventy-two hours. Depending upon the charge and the facts of the offense:
Bail may be set according to a bail schedule maintained by the court, with specific bail amounts required for offenses listed on the schedule.
For more serious offenses or for non-scheduled offenses, a bail hearing may involve a formal hearing, with bail set based upon such factors as the seriousness of the charge, the defendant's prior criminal history, and the defendant's ties to the community, and the court's assessment of whether the defendant will appear in court if released on bond.
Sometimes a defendant will be released on his own recognizance – the defendant's promise that he will appear for the next court hearing -- without the requirement of an additional bond. Sometimes, bail is set in a very high amount. A defendant who is accused of very serious crimes such as homicide, terrorism or sexual assault may be denied bail, or have bail set in the millions of dollars. If bail is granted, and the defendant posts the required bail, the defendant will be released from custody. A defendant who is released on bail must attend all subsequent court hearings, or risk having the bail forfeited. Keep this in mind -- if you put your house or your car up as collateral for somebody else's bail, you risk losing your property if the person does not appear in court.
For most criminal defendants, the first court hearing is their arraignment before a judge or magistrate. An arraignment is a court hearing at which criminal charges are formally read to a defendant. The defendant has the opportunity to enter a plea at the arraignment. A defendant who is in custody should be arraigned within seventy-two hours of being charged. If bail has not previously been set, the arraignment will often be held at the same time as the defendant's bail hearing. A defendant who is not in custody will normally be given a notice to appear for arraignment, normally to be held within fourteen days of arrest.
Entering a Plea At The Arraignment
At arraignment, the defendant is offered the opportunity to enter a formal plea to the pending criminal charge. Possible pleas include:
Guilty - The defendant may admit to having committed the charged offense;
Not Guilty - The defendant may deny being guilty of the charges.
No Contest - A "no contest" or nolo contendere does not admit guilt, but indicates that the defendant does not want to dispute the charges. If the court accepts this plea, it is treated as a guilty plea.
A defendant may also stand mute without entering a plea, in which case the court will enter a "not guilty" plea on the defendant's behalf. If a "not guilty" plea is entered, the court will normally advise the defendant of his right to remain silent and his right to an attorney. If the defendant is indigent, the defendant will usually be given the opportunity to petition the court for an appointed attorney, or instruction on how to obtain and file a petition form. It is a good idea for a defendant to speak to a criminal defense lawyer, even if only for a free consultation, before deciding to enter a plea of "guilty" or "no contest". There is no need to rush into a plea at the arraignment, and being convicted of a criminal offense is something that can haunt you for the rest of your life. An attorney can review the charges and advise about possible defenses, likely plea offers, and possible dispositions that might allow you to avoid a criminal conviction.
Review for Probable Cause
When an arrest warrant is issued, the court issuing the warrant makes a probable cause determination to evaluate whether there is probable cause both that a crime occurred and that the defendant committed the crime. Where a warrantless arrest occurs, the probable cause hearing will occur after arrest. The review process is normally informal, involving the review of affidavits or similar documents submitted by the prosecutor. The defendant is not ordinarily present for the review. If a court has not made a previous assessment of probable cause, as is often the case with warrantless arrests, a probable cause hearing may occur at the time of the arraignment. If a probable cause hearing is combined with an arraignment, the combined hearing will normally occur within forty-eight hours of the defendant's being charged. If a probable cause hearing occurs after forty-eight hours, the defendant may challenge the delay as unreasonable. If a court finds that there is not probable cause for the arrest of the defendant, the defendant must be released.
Following the arraignment, the defense and prosecutor will take steps to prepare for the possible trial of the case. They may also engage in negotiations over a possible plea bargain.
If a defendant is charged with a felony, but was not indicted by a grand jury, the defendant will be entitled to a preliminary examination, a hearing at which the prosecution must demonstrate to the satisfaction of a judge that there is reason to believe that the crimes charged were committed, and that the defendant was the person who committed the crime. This is a formal hearing, involving the presentation of witness testimony and evidence. Unless the defendant waives the hearing or agrees to an adjournment, the hearing is normally held within fourteen days of the arraignment.
The defendant is allowed to question witnesses at this hearing. While the defendant ordinarily can present evidence, and may choose to testify, most defendants choose not to do so. Although it rarely happens, if a court finds that the prosecutor did not meet its burden of proof the inadequately supported charge will be dismissed.
If the Court is satisfied by the prosecutor's evidence, the felony charges will be approved and the case will continue. Depending upon the nature of the charge and a state's rules of criminal procedure, following the arraignment a defendant may be transferred to a different court for all further proceedings. Following the court's finding of probable cause, the defendant is generally said to be "bound over" for subsequent proceedings, or "held to cause".
Following the preliminary examination there may be a subsequent arraignment at which the formal charges (indictment or information) are presented to the defendant. These charges are drafted by the prosecutor, and may vary from any original charges that were drafted by the police. As with the first arraignment, the defendant has the opportunity to enter a plea to the charges presented.
Before the trial, the defense and prosecution may file motions with the court, asking that the judge address specified legal issues. Common motions in criminal cases include:
Motion to Suppress - The defense may bring a motion to suppress evidence, such that it may not be introduced by the prosecutor at trial. For example, a defendant may claim that evidence should be suppressed as having been obtained through an illegal search, or improperly conducted interrogation of the defendant.
Motion in Limine - Either the prosecutor or defense may bring a motion asking that the trial court make an advance ruling on the admissibility or inadmissibility of evidence that may be used at trial. For example,
The defense may challenge the admissibility of prosecution evidence that it contends cannot be properly linked to the defendant or to the alleged crime, due to the manner or circumstances under which the evidence was collected.
The defense may bring a motion asking that the prosecutor be barred from introducing evidence of prior bad acts by the defendant, on the basis that they are not relevant or would be unduly inflammatory if known by a jury.
Motion to Quash - A motion to quash is filed in a felony case, and challenges a prior finding of probable cause.
Motion to Dismiss - A motion to dismiss asks that the court find that the charge against the defendant must be dismissed, whether based upon the law, the facts of the case, or a combination of legal and factual arguments. If a defendant successfully moves to suppress key evidence from the prosecutor's case, the defense may follow up with a motion to dismiss.
Motion for Change of Venue - A motion for change of venue may be filed based upon the contention that the charge was filed in the wrong court based upon the location where the crime allegedly occurred, or it may ask that the trial be moved from a proper venue to a different court due to concerns that the facts of the offense and pretrial publicity will otherwise make it impossible for the defendant to get a fair trial.
A motion to dismiss may be filed following an illegal arrest, where all of the evidence presented by the prosecution was found as the result of that arrest.
Additional Court Hearings
Hearings that may occur as the case proceeds toward trial include:
Pretrial Conference - A hearing held to schedule further proceedings in the case and, if necessary, to estimate the likely length of trial and to schedule the case for trial.
Sometimes a defendant will enter a plea at the pretrial hearing. If a plea is not entered, the court will schedule the case for a bench trial (a trial without a jury), a jury trial, or a plea hearing.
Plea Hearing - A hearing to enter a guilty or no contest plea, usually as part of a negotiated plea bargain.
Status Conference - A hearing to check on the status of a case, and whether it is likely to be resolved by a plea or proceed to trial.
A defendant may also raise the claim that he is not competent to stand trial, meaning that due to mental illness or disorder the defendant cannot understand the charges leveled against him, cannot understand the court proceedings, or cannot meaningfully participate in his defense. The court may order an evaluation of the defendant and, if the defendant is found to be incompetent, may order the defendant to undergo medical or psychiatric treatment in an effort to restore the defendant's competence to stand trial.
During pretrial proceedings the prosecution and defense will exchange discovery demands, asking that the other party provide certain information and evidence that is in their possession.
Discovery from the Prosecutor
The prosecution is obligated to provide the defense with the names and addresses of all relevant witnesses, and with copies of written or recorded statements made by the defendant or by co-defendants. The prosecution will normally be required to provide additional information upon request, such as copies of witness statements, and reports from expert witnesses. The specific materials and information that must be exchanged will vary from state to state. The prosecution is required to turn over all exculpatory and potentially exculpatory evidence to the defense, evidence that tends to show that the defendant is innocent of the crime, whether or not it is requested. Often, a prosecutor will provide nothing more than a copy of the police report, and perhaps some laboratory reports if the case involves drugs or drunk driving. Although criminal defense attorneys may differ, prosecutors typically argue that this meager discovery fulfills their legal duties.
Discovery from the Defense
As part of what is called "reciprocal discovery", if a defendant requests discovery from the prosecution the defense may be required to provide certain information to the prosecutor, including witness lists, exhibit lists, information about and an opportunity to inspect tangible evidence within the defendant's possession, and may also be required to provide expert witness reports.
Most states provide that the deposition of a witness in a criminal case may be taken if the witness will not be available for trial. A deposition involves the witness appearing in person to give testimony under oath, subject to cross-examination, and a transcript is taken that may be used in later proceedings. In some cases a video recording is made of the deposition.
In a small number of states, the parties may conduct depositions of witnesses prior to the trial with permission from the court. In a few states, depositions are allowed in criminal cases without a court order. Most states do not allow for depositions in criminal cases. Many states that allow for depositions restrict when they may be taken, such as allowing them only for felony cases and by offering special restrictions for depositions of minors or of victims in sex offense prosecutions.
An affirmative defense is a defense to which the defendant bears the initial burden of proof. If a defendant raises an affirmative defense, the defendant must prove by at least a preponderance of the evidence that the facts of the case support the defense. A defendant is normally required to provide advance notice of the intent to raise an affirmative defense, or to specifically request a hearing about certain intended defenses, before those defenses can be raised at trial. Depending upon state law, that requirement may apply to defenses such as:
Alibi - A claim that the defendant was at another location at the time the crime occurred.
Insanity or Diminished Capacity - A claim that due to a mental condition, disease or disorder, the defendant should not be held criminally responsible for the actions underlying the charge.
Duress - A claim that the defendant should be fully or partially excused from criminal responsibility due to his acting in response to credible threats, violence, or similar actions by another person or persons.
Necessity - A claim that the defendant had to act in violation of the law in order to prevent a greater harm.
Self-Defense - That the defendant's actions were justified under the jurisdiction's laws of self-defense.
The purpose of the notice requirement is to allow the prosecutor to prepare for the defense, and to collect evidence and interview witnesses to challenge the defense. A defendant who raises an insanity defense will normally be examined by a state psychiatrist, and the defendant's refusal to submit to examination will usually prevent the defendant from raising that defense.
Sometimes a defendant may have difficulty locating a witness that is important to the defense of a criminal case. The defendant may request assistance from the prosecutor's office to help locate the witness and ensure the witness's appearance at trial. Assistance may include tracking down the missing witness, and the issuance and service of subpoenas. Indigent defendants will often be able to obtain greater assistance than defendants who can afford to hire their own lawyers and investigators. However, due to the prosecutor's access to information that is not available to the defendant and ability to obtain assistance from police agencies, the prosecutor is normally obligated to help any defendant locate a missing witness.
Sometimes a defendant will be eligible for a pretrial diversion program. When available, the defendant's entry into a diversion program will suspend prosecution of the case. If the defendant successfully completes the diversion program, the criminal case will be dismissed. If not, the case is restored to the docket and proceeds toward trial. The terms and availability of diversion programs can vary significantly from state to state and even from court to court within a state. Diversion programs may incorporate requirements including counseling, full-time school or work attendance, attendance of victim's impact classes, substance abuse screening or counseling, and payment of restitution. Diversion programs are not universally available and, even when available, may be open to only a small number of defendants or for a small assortment of charges. Most diversion programs are aimed at younger offenders who do not have significant criminal records.