The Pretrial Process

While many citizens think the real action in the criminal courts happens during trials, they are wrong in that assessment. Ninety percent of criminal cases are disposed of by guilty pleas rather than trials. Most of those guilty pleas are the result of agreements between prosecutors and defense attorneys. Plea bargaining is a process in which a prosecutor makes a concession to a defendant (for example, reducing charges or recommending a lighter sentence) in exchange for the defendant's pleading guilty. Even cases that go to trial are sometimes decided before the trial begins. Some experts think that the O.J. Simpson case, for example, was won outside the courtroom through early forensic work by experts and through a legal strategy that forced the prosecution to present its evidence at a preliminary hearing rather than a grand jury proceeding.

The right to a lawyer

In the landmark case Gideon v. Wainwright (1963), the U.S. Supreme Court held that the Sixth Amendment guarantees access to qualified counsel, which is fundamental to a fair trial. Gideon was entitled to a retrial because Florida failed to provide him with an attorney. After this decision, states were required to furnish public defenders for indigent defendants in felony cases. In Argersinger v. Hamlin (1972), the Court extended the right to a lawyer to all cases that might result in imprisonment.

A person accused of a crime, the Court has said, “requires the guiding hand of counsel at every step.” “Without it,” as New York Times columnist Anthony Lewis says, “she may be overborne by what she does not understand.”

The prosecutor's decision to charge

Following the arrest of a suspect by the police, a prosecutor decides whether or not to press charges. The prosecutor is the government's lawyer. If the prosecutor decides to proceed, he or she files a charging document with a lower court. A charging document accuses the arrestee of committing a crime. The most common charging documents used are the information and the indictment. Although the information and indictment differ in some respects, each of these contains a statement of the charge.

Reviewing the charge

Although the charge is filed in a lower court, the judge in such a court doesn't have the authority to hold a trial. Before transferring the case to a trial court, a judge in the lower court reviews the complaint and determines whether there are legal grounds to support the arrest under which the defendant is being held in custody. If the judge finds that the facts alleged establish probable cause, the judge sets a date for the defendant's first appearance in court.

The first court appearance

For the first appearance, the defendant is taken from jail and brought before the lower court judge. The judge informs the defendant of the charge in the complaint, explains to the defendant that he or she has certain rights, offers to appoint counsel at the expense of the government if the defendant is indigent (too poor to afford a lawyer), and sets bail.


Traditionally, bail has consisted of cash or other property that a defendant deposits with the court in order to be released from custody. The cash or property serves as a guarantee that the accused will show up for the trial. If the defendant skips bail, the cash or property is forfeited to the government. Often, a court does not require persons to post cash or property and releases those accused of crimes on their own recognizance (on their personal promise to appear). About 10 to 20 percent of all felony defendants don't get pretrial release because the judge finds them too dangerous to be released or because they can't make bail.

Bail discriminates against the poor. When a judge sets cash bail at a high level, it causes the pretrial confinement of many low‐risk defendants who don't have the funds to either post bonds or retain a bonds agent. Another problem with bail is that it is totally discretionary. Factors considered in bail setting include the seriousness of the crime, the defendant's prior criminal record, and the strength of the government's case.

Preventive detention

Thirty states have passed preventive detention laws permitting judges to deny bail to suspects with prior records of violence or nonappearance for trial. Similarly, the Bail Reform Act (1984) gives federal judges the power to hold offenders without bail to ensure public safety. Critics charge that these laws violate citizens' rights under the U.S. Constitution because they authorize punishment of citizens in jail before a court has found them guilty. A related problem is false positives—erroneous predictions by judges that a defendant, if released before trial, will commit a crime. The trouble with trying to prevent crime by denying bail to suspects who are predicted to be dangerous is that it presumes an ability to predict future criminal activity. The truth is that predictions about violent criminal behavior are more likely to be wrong than right.

Grand jury review

Just because the police arrest someone and the government charges him or her with a crime doesn't mean that the accused will have to stand trial. Either a judge or a panel of citizens decides if there is enough evidence to have a trial. The federal government and half of the states provide for a panel of citizens, known as a grand jury, to decide if there is probable cause for believing that the accused committed the crime he or she is charged with. Grand juries are often larger than trial juries, consisting of 12 to 23 members. If a majority of the grand jurors finds there is probable cause to support the criminal charge, the grand jury approves an indictment.

The future abolition of grand juries

It is a safe bet that, sometime in the near or distant future, grand juries will be abolished because they are the antithesis of due process. Unlike trials, grand jury proceedings are private and secret, and hearsay evidence (evidence that is not first‐hand) is admissible (it is inadmissible in criminal trials). The defendant has no right to be present at grand jury proceedings and no right to cross‐examine witnesses. The concept of “innocent until proven guilty” doesn't apply. Only the prosecution presents evidence in these ex parte (one‐party) proceedings, and it doesn't have to prove that the accused committed the crime.

Historically, the grand jury was created to serve as a shield to protect citizens from unfounded charges made by overzealous and/or politically motivated prosecutors. Critics charge, however, that the grand jury has become a tool for the very prosecutorial misconduct that it was intended to prevent. Procedural rules of the grand jury favor the prosecution. The exclusionary rule doesn't apply. Because the grand jury gets only the prosecution's version of the evidence, it is likely to find probable cause that the suspect committed the crime charged. Grand juries indict defendants at a rate of 99.9 percent, suggesting that they are rubber stamps for the prosecutor.

The preliminary hearing

In contrast to a grand jury hearing, a preliminary hearing takes place in public, with the defendant and the attorneys for both sides present. At this stage, a lower court judge reviews the prosecution's evidence to see if there is enough evidence to support the criminal charges. The standard for testing the evidence is probable cause.

Because both the prosecution and the defense are represented in a preliminary hearing, it is considered an adversary proceeding. The defendant has counsel who challenges the prosecution's evidence and introduces evidence on behalf of the accused. If the judge finds probable cause, the judge sends the case forward to the trial court.


If a case survives the screening of the preliminary hearing or the grand jury review, it goes to a trial court. At the arraignment, the judge informs the defendant of the charge and asks for a plea. The defendant pleads not guilty, guilty, or nolo contendere (no contest). A no‐contest plea has the same effect as a guilty plea, except there is no formal admission of guilt. If the defendant pleads not guilty, the judge sets the case for trial.

Pretrial motions

Prior to the trial, both the prosecution and the defense can make motions. A motion for discovery is a request for the prosecution to make available to the defense evidence the prosecution plans to introduce at the trial. The prosecutor is also obligated to turn over any exculpatory evidence—that is, evidence that might establish the defendant's innocence. A motion to suppress is a request to bar certain evidence (for example, a forced confession) that either the prosecution or defense intends to use during the trial.