The courtroom layout is deliberate. It’s designed not only to impart the seriousness of the proceedings but also plays a practical role. The design allows the various participants—judges, jurors, attorneys, bailiffs, staff, witnesses, and spectators—to best hear and view the proceedings according to their roles.
The judge's bench is the raised wooden desk or podium at the front of the courtroom where the judge sits. It's raised so that the judge can control and preside over the entire room. The judge's staff sits close by so they can communicate quietly. The witness stand is also next to the judge so that the judge can provide a protective influence over the witnesses.
Attorneys and defendants alike shouldn't go near the bench unless they ask for and receive the judge's permission to do so. Generally, only attorneys will be permitted to go up to the bench. Forbidden territory includes the "well," which is the space between the counsel table and the bench, where the courtroom clerk and the court reporter may sit. (Courtroom clerks may alternatively sit on the side of the judge's bench opposite the witness box.)
Most courtrooms have a spectator area in the back, a gallery, often separated by a "bar" or partition from the rest of the courtroom.
Defendants who are free on bail or own recognizance release usually sit in the gallery of the courtroom until their cases are called by the courtroom clerk, bailiff, or judge. In-custody defendants wait in holding cells and are escorted into the courtroom by a bailiff.
Members of the public, including those who come to court to support a family member or friend, also sit in the gallery.
During trial or in a pretrial proceeding, defendants sit with their attorneys at the counsel table, directly in front of and facing the judge's bench.
Typically, once a judge calls a case, the defendant and their attorney move out of the gallery and past the bar to sit at counsel table. Defendants should sit or stand as directed by their attorneys (if they have counsel) or by the judge, courtroom clerk, or bailiff. The custom is different in different proceedings and different courtrooms. For example, during arraignment, defendants typically stand, facing the judge. However, at trial or a hearing on a motion, they may sit at counsel table.
Whether lawyers stand, and where they do so, depends again on the proceeding. In pretrial hearings, lawyers may stand at counsel table or right in front of the judge, or they may sit. During trials, lawyers usually sit or stand at counsel table, with the prosecutor usually on the side closest to the jury box. Most defense lawyers stand when addressing the judge or questioning witnesses. Some courtrooms have a podium for attorneys to use when speaking to the judge or questioning witnesses.
Jurors sit in the rows of seats near the judge, called the jury box, during the trial. The jury box is typically located to the side of the room, situated so that jurors can see the defendant, witnesses, attorneys, judge, and exhibits. It typically consists of two rows of chairs, with the back row elevated above the front row.
The jury box may remain empty during nonjury proceedings (or when a jury is deliberating), or the judge may use it to seat lawyers or in-custody defendants during pretrial hearings (including arraignments and motions).
The witness stand will be situated next to the judge and faces the room. Everyone needs to be able to hear and see the witness. Part of the jury's job is to assess the credibility of the witness and their testimony. Defendants have a constitutional right to "confront" witnesses—meaning the defendant can look the witness in the eye and allow their lawyer to question them. The judge controls the questioning and answering of witnesses.
Judges usually have private offices called chambers that are located in a room adjacent to or behind the courtroom. A judge and the attorneys may have a conference in chambers during a trial or other proceeding, especially if they want to go "off the record" and have a quiet place to confer. Also, some judges prefer to hold plea bargain negotiations in chambers.
Attorneys may request that in-chambers conferences be put "on the record" if they want to document what either the lawyers or judges are saying. This is a request that the conference be recorded word for word by a court reporter and preserved as part of the case for possible later review. (See Appeals in Criminal Cases and Writs in Criminal Cases.)
Videoconference and remote court appearances have become more commonplace since the COVID pandemic. Remote appearances typically involve a video conference with the judge and prosecutor in a courtroom and the defendant and defense attorney in a jail conference room. Generally speaking, for criminal cases, the use of videoconferencing or remote appearances is limited to pretrial proceedings, such as bail hearings, arraignment, and motions. Trials will be in person but may be recorded or live streamed.
]]>Defendants routinely enter an initial plea of not guilty, then plead guilty or no contest after the defense lawyer has reached a deal with the prosecution.
Here are some reasons why defendants initially plead “not guilty.”
While it’s usually recommended that people plead not guilty until they have an attorney, most cases do end up resulting in a guilty (or no contest) plea down the line.
There are many reasons defendants and their attorneys ultimately decide that the best course of action is to plead guilty. For more information, see this article on the pros and cons of plea bargaining.
]]>A target letter typically notifies a person that they are a subject or target of a grand jury investigation. Grand juries investigate alleged violations of federal or state criminal laws. Their role is to determine if the evidence supports bringing criminal charges against someone.
In the federal system, all possible felony charges must go to a grand jury. The “subject” of the investigation becomes a “target” when the grand jury has substantial evidence linking the subject to the crime. State prosecutors or laws may use different designations.
The office in charge of the investigation will send the letter. For federal investigations, this will be an Assistant U.S. Attorney. State prosecution offices might be referred to as a district attorney, state's attorney, county attorney, attorney general, or another name.
No, a target letter is not an indictment. The target letter informs the person of a criminal investigation. An indictment means the grand jury has concluded its investigation and decided enough evidence exists to support criminal charges against the person. The indictment represents the formal criminal charges.
Target letters typically advise a person of a grand jury’s investigation into specific criminal allegations. Prosecutors may also send target letters earlier in an investigation.
The target letter may provide the following information:
Here’s a sample target letter from the U.S. Department of Justice (DOJ). An example of a target letter from a state prosecutor can be found here.
In most instances, prosecutors aren’t required to send target letters. A prosecutor may choose not to because they don’t want to tip off the target of the investigation.
However, a prosecutor may decide to send a target letter for strategic reasons, such as:
The DOJ has internal rules that provide guidance to federal prosecutors regarding target letters. State prosecution offices may have similar rules. A few states’ laws require prosecutors to send target letters unless notification could result in the target fleeing the jurisdiction or endangering others.
(Ind. Code § 35-34-2-9; Nev. Rev. Stat. § 172.241; N.M. Stat. § 31-6-11 (2023).)
That often depends on the timing of the letter.
In some cases, the prosecutor sends a target letter at the beginning of the investigation to seek out cooperation and information from the target and possible resolution. Or the prosecutor might have a law enforcement officer (such as an FBI agent) deliver the letter and ask some questions. These early-on interactions might signal that the investigation is ongoing and the prosecutor may be willing to discuss options short of an indictment (cooperating witness, plea deal).
Other times, the target letter informs the person that the grand jury’s investigation is nearly complete. This letter might invite or subpoena the target to testify before the grand jury and advise the target not to destroy any documents or evidence related to the charges. Here, an indictment is likely forthcoming.
No matter the circumstances, it’s best to consult with a criminal defense attorney before responding to a target letter and to do so as soon as possible.
]]>After an arrest, the police report goes to a prosecutor whose job it is to initiate cases. An arrest report summarizes the events leading up to the arrest and provides numerous details, such as dates, times, locations, and witness names.
The prosecutor will typically:
After an arrest, the police officer specifies the crime or crimes that made the basis for the arrest. Officers may recommend that the prosecution file additional charges, too. But prosecutors get to make the ultimate decision on what the charges will be.
A defendant typically learns what the formal charges will be at the first court appearance. But prosecutors' initial charges are subject to change. For example, a prosecutor might not make a final decision on what charges to file until after a preliminary hearing, which may take place more than a month after arrest.
Typically, if the prosecutor decides to file a felony complaint rather than present the case to a grand jury, the defendant is entitled to a preliminary hearing. At that hearing, the prosecutor must show that the state has enough evidence of the defendant's guilt to warrant a trial.
But normally, if the case proceeds by grand jury indictment, no preliminary hearing need be held.
For much more on this stage of a case, see our section on Preliminary Hearings.
If a felony is involved, prosecutors sometimes leave it to grand juries to decide whether charges should be filed. Grand juries are similar to regular trial juries (called "petit juries") in that they are made up of randomly selected individuals. The grand jurors listen to the evidence and decide whether charges should be brought against an individual—that is, they decide whether to indict someone.
Unlike petit juries, which sit on only one case, grand juries may address many cases in the course of their service. In fact, serving on a grand jury can mean a time commitment of six months or longer.
Here are other ways grand juries are different:
When bringing a case to a grand jury, the prosecutor presents the jurors with a "bill" (the charges) and introduces evidence—usually the minimum necessary, in the prosecutor's opinion—to secure an indictment. The proceedings are typically secret; it is standard practice to call witnesses to testify against the suspect without the suspect or the suspect's lawyer present. But, depending on state law, indicted suspects might later be able to get transcripts or recordings of grand jury proceedings. (The availability of a transcript is a big reason why prosecutors like to keep the evidence to the minimum.)
Prosecutors may advise the suspect that they are the target of the grand jury investigation (but they don't have to). In the federal system, when prosecutors have substantial evidence that the suspect committed a crime, they may send the suspect what's called a "target letter." The target letter generally notifies the suspect of the suspected criminal violations and may invite the suspect to testify before the grand jury. However, most suspects will refuse to testify by invoking their privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution.
If the grand jury decides to indict, it returns what is called a "true bill." Otherwise, it returns a "no bill." But even if the grand jury returns a no bill, the case isn’t necessarily closed. Again depending on the law in the jurisdiction, the prosecutor might be free to return to the same grand jury with more evidence, present the same evidence to a second grand jury, or bypass the grand jury altogether and file a criminal complaint (or other charging document.)
Charging procedures can differ significantly between federal and state courts, from one state to another, and even between locales within the same state. If you’ve been arrested, consult an experienced criminal defense attorney. Such a lawyer should be able to explain the applicable law and guide you through the process.
]]>Defendants who are represented by court-appointed counsel (sometimes referred to as public defenders) often don't even have counsel appointed until the time of arraignment. And a self-represented defendant should not risk additional legal difficulties by discussing the case with a prosecutor before the arraignment (assuming that a prosecutor would agree to meet with the defendant in the first place).
Defendants who hire private counsel before arraignment have a chance to derail the case for several reasons.
In most parts of the country, intake prosecutors (not the police) are supposed to analyze cases to make sure that there is evidence of guilt and that prosecution is in the interests of justice. Frequently, however, the caseload is so heavy that reviews are cursory, and weak cases sometimes slip into the pipeline. If an attorney who is well known to the courtroom prosecutor can convince that prosecutor of the weaknesses in the case, the case may get dismissed.
Before arraignment, no one in the prosecutor’s office has invested a lot of time or money in the case. With less invested, it's easier to let a weak case go.
Especially in urban areas, courtroom dockets (schedules) are crowded. By quickly disposing of weak cases, prosecutors can devote the little time they have to more serious cases. And disposing of iffy cases early on spares the courtroom prosecutor of the embarrassment of showing up in court with weak cases.
For all these reasons, if defense counsel can point out weaknesses that the intake prosecutor did not consider, or convince the prosecutor that further proceedings would not be in the interests of justice, a pre-arraignment meeting between the defendant’s attorney and the prosecutor may result in the case being derailed before arraignment.
Redd Emption was arrested for carrying a concealed weapon. Rushing to make an airplane, Redd forgot that the gun he was supposed to leave at his house was still in his backpack. He was arrested when the airport metal detector revealed the gun. Redd has no prior arrests. The only reason that he had the gun in the first place is that a series of robberies had taken place in his apartment building, and his father had loaned him the gun for protection.
Redd is out on bail and is scheduled for arraignment in a week. Thinking that his arrest is a misunderstanding, Redd is uncertain about whether to hire an attorney. However, a private attorney may be able to get the case dismissed before the arraignment. Redd’s attorney may be able to contact the arraignment prosecutor to seek a mutually agreeable outcome. Redd’s attorney can point out information that the intake prosecutor may not have been aware of—Redd didn’t own the gun; he had borrowed it for protection, and inadvertently had it in his backpack.
Though Redd is technically guilty as charged, these factors may convince the prosecutor that trying Redd is not in the interests of justice. As a result, the prosecutor may agree to dismiss the case or offer Redd diversion (that is, agree to temporarily not file the charges and end the case permanently if Redd stays out of trouble for a period of time).
If you've been arrested or charged with a crime, it's almost always best to consult with a criminal defense attorney before making decisions relating to your case. You can learn more about criminal defense attorneys, how to get one, and when you need one in our FAQ article on Criminal Defense Attorneys.
]]>Many criminal cases start with a 911 call. Police respond to the call and speak with the suspect, the victim, and any witnesses. If police have good reason (probable cause) to believe a crime has been committed and the suspect committed the crime, the police can arrest the suspect. Any victim, suspect, and witness statements, along with the police officer’s observations, will go into a police report that makes its way to the prosecutor’s desk.
Typically, prosecutors base their initial charging decisions on this police report and any documents sent to them by the arresting police officers. But police reports tend to be one-sided. They often recite what the police claim took place, along with victim, suspect, or witness statements that support the police theory. So, before making any charging decisions, prosecutors may also consider whether further investigation is needed, whether police may have acted unlawfully, and what motives the victim or witnesses may have had.
At the end of the day, prosecutors can file formal charges only if they believe the evidence will prove the suspect’s guilt beyond a reasonable doubt—a much higher standard than the probable cause needed for an arrest.
Even if the prosecutor believes they have a strong case, they can take a broader perspective in determining whether or not to pursue the charges. They have what is called "prosecutorial discretion." Prosecutors can look at all the circumstances of a case and the suspect, plus other factors pertaining to justice and public safety. For instance, prosecutors may consider:
Many decisions come down to the prosecutor's sense of what justice requires in the case at hand. Prosecutors are supposed to both enforce the law and "do justice."
Doing justice means that a prosecutor occasionally decides not to prosecute a case (or files less severe charges) because the interests of justice require it, even if the facts of the case might support a conviction. For example, if an otherwise law-abiding person makes a one-time, foolish mistake, a prosecutor may decide that it would not serve any purpose to spend time and money prosecuting, especially when the chances that the person will re-offend are small.
Additional factors may come into play when it comes to a prosecutor’s decision to file charges. Take, for example, the following.
Some prosecution offices adopt policies on certain types of crimes, often in response to community and political pressures, and these policies may dictate the prosecutor's approach to a case.
For example, an office may decide that arrests for driving under the influence of drugs or alcohol will always be taken to trial and not "plea bargained" down to a lesser offense. Or the head prosecutor could decide that their office won't prosecute low-level marijuana cases. As another example, an office might make prosecuting vehicle theft cases their top priority.
Political and career ambitions may also influence prosecutors. Most head prosecutors are elected officials, and many of them view their position as a stepping stone to higher office. Public opinion and important support groups often affect their decisions on charges. For example, a prosecutor may file charges on every shoplifting case, no matter how weak, to curry favor with local store owners who want to get the word out that shoplifters will be prosecuted. Deputy or assistant prosecutors may feel that appearing tough will help their careers, either within the prosecutor's office or later if they want to become judges.
Prosecutors don’t pursue every case put in front of them by police or victim complaints. All the factors listed above might convince a prosecutor to file charges, but they might also sway the prosecutor not to file charges or drop the charges.
Evidence suppressed. A prosecutor might drop the charges if evidence is tossed out of the case, and there’s not enough additional evidence to support a conviction. For example, prosecutors might be forced to drop charges in a drug case if the judge suppresses evidence of the drugs based on an unlawful search by police.
Witness refuses to testify. If a victim or witness recants their statement or refuses to testify, this factor may impact the strength of the prosecution’s case. A prime example of victims recanting occurs in domestic violence cases. If that statement was the key piece of evidence, the prosecutor may have some tough decisions to make on whether other evidence (like whether the doctor reports or witness statements) can prove the case.
Prosecutorial discretion may also come into play. The resources needed to take a first-time offender to court might not be justifiable when compared to a less costly and, possibly, more effective diversion program.
Small fish; big fish. Prosecutors sometimes use a small fish in a large criminal scheme to get to the big fish. For instance, a prosecutor might offer immunity to a drug dealer if they testify against the kingpins of the organization. Immunity means that the prosecutor agrees not to prosecute certain charges in exchange for the defendant’s testimony or other assistance in getting the big fish.
Yes, prosecutors can typically “amend” the charging documents by adding criminal charges. The new charges must be supported by the evidence. Amending the initial charges is common as new evidence is uncovered in a case.
Generally, any changes to the charges or complaint must be made before a plea is entered or trial begins. After that point, the prosecutor may need to get the judge’s permission to add charges or add information to the complaint. A judge might decline the prosecutor’s request to amend the charges if the defendant’s rights would be prejudiced in some way (such as adding charges late in the game that might not allow the defendant adequate time to prepare a defense).
If you’ve been arrested or are being investigated by police, talk to a criminal defense attorney as soon as possible. Generally, it's best not to speak to investigators or police until you’ve spoken with an attorney. You could unwittingly say something that could be used against you.
]]>The role of a grand jury is to investigate evidence to determine if it supports criminal charges against someone. As part of the investigation process, the grand jury or prosecutor can subpoena witness testimony, documents, and other evidence.
Prosecutors typically subpoena witnesses to appear before a grand jury because either:
In many states, the prosecutor doesn’t have to tell you if you’re a witness or the target.
A subpoena is a court order and refusal to show up and testify can lead to contempt charges. You need to respond to the subpoena, typically, either by challenging it through a court motion or complying with it.
Comply. Complying with a subpoena doesn’t necessarily mean you must testify. Based on the questions being asked, you may assert your Fifth Amendment privilege against self-incrimination or assert another privilege. (More on Fifth Amendment rights below.)
Challenge. Your lawyer might file a motion to quash (dismiss) the subpoena by arguing it’s invalid, overly burdensome, or vague. But this motion needs to be filed quickly and before you’re due to testify. If you simply ignore the subpoena and don’t show up, the court could order your arrest and compel your appearance.
Grand jury proceedings are closed, and witnesses are not entitled to be represented by counsel during the proceedings. A witness may have a lawyer, but the lawyer is not permitted to accompany a client into the grand jury room.
Lawyers may, however, remain in a nearby hallway, and witnesses may leave the room to consult with their lawyers as needed. Lawyers sometimes advise their clients to exercise this right before answering every question. For example, a witness might repeatedly say, "I respectfully request permission to leave the room to consult with my lawyer before I answer that question."
Grand jury witnesses can invoke their Fifth Amendment privilege against self-incrimination. But the request must be legitimate. The judge will ultimately decide whether the witness is invoking their Fifth Amendment privilege in good faith.
However, prosecutors don’t need to give witnesses any Miranda-type warnings. Unless a prosecutor specifically gives the witness immunity (that is, promised that they won't be charged based on their testimony), any testimony witnesses provide to a grand jury may be used against them in a later prosecution.
In some cases, the prosecutor will notify the person that they are the target of a grand jury investigation by sending them a "target letter." But that's not always, or even usually, the case. If you already have a lawyer, your defense lawyer may confer with the prosecutor to find out whether you are the target of the grand jury investigation. If so, the defense lawyer may try to work out a deal in which you agree to testify before the grand jury in exchange for immunity from prosecution.
The prosecution can give a witness "immunity" in response to a legitimate refusal to testify based on the Fifth Amendment, or in response to a deal worked out with the defense attorney. Prosecutors often give immunity to compel small fish to testify against big fish. For example, a prosecutor may give a small-time drug dealer immunity in exchange for the dealer's testimony against the drug lord from whom the dealer purchased the drugs.
The prosecutor can offer one of two forms of immunity, depending on factors such as the seriousness of the immunized witness's own criminal conduct:
A witness who refuses to testify after being given immunity, however, can be held in contempt of court by a judge and jailed.
If you’ve received a grand jury subpoena, you may very well want to consult an attorney. This is especially true if you think you’re the target of the investigation or your testimony may incriminate you. A lawyer can review the subpoena and determine if grounds exist to challenge the subpoena. At the same time, the lawyer can help prepare you for the grand jury proceedings and advise you on how to handle questions and assert your rights.
]]>To start with—and while it might sound counterintuitive—it’s typically best not to offer up any information to police or investigators or to communicate with the accuser until you’ve spoken to a lawyer. Many think that an innocent person has nothing to lose by speaking up and telling the truth, but facts can get twisted around or confused and you can end up causing yourself more harm than good.
Also remember that, in the American legal system, it’s the prosecutor’s job to prove the defendant’s guilt beyond a reasonable doubt. It’s not the defendant’s job to prove their innocence. You don’t want to inadvertently make matters worse, so discuss matters with your lawyer before speaking to others about your case.
Police might investigate a case based on a victim calling 911, a witness reporting a crime, or an accuser asking to press criminal charges against someone. Regardless of how the case comes to the attention of the police, it’s the prosecutor that decides whether to file criminal charges. And when a case comes across the desk of a prosecutor, all that's often available is the police report of the incident in question.
Your average police report—at least a preliminary one—is limited in the information it conveys. Furthermore, police reports frequently get some facts wrong, whether because of misstatements or lies by witnesses or because of errors or bias on the part of officers.
A police report might misrepresent a potentially minor fact, such as the exact words between two participants in an argument that turned into a physical fight. Or it might be flatly wrong, such as when the aggressor in an incident claims the defendant attacked him, whereas the defendant really acted in self-defense. Alleged victims might even lie about or exaggerate injuries.
If the charges are unfounded, the defendant certainly has the option of going to trial, hoping for an acquittal. But criminal trials aren't only risky and expensive, they're also tremendously stressful, as are the proceedings that lead up to them. That's why, before some cases get that far, good defense lawyers will try to nip them in the bud.
Pretrial communication is one of many reasons hiring an experienced criminal defense lawyer as soon as reasonably possible is your best bet. (That said, you shouldn't rush into the decision, nor allow a lawyer to pressure you into hiring him or her. Also, you can typically hire a lawyer for initial representation, then, if appropriate, switch to another one later on.)
If the facts are suitable, some lawyers will try to intervene before the prosecution even files charges. This might involve contacting the arresting or investigating officer before the case gets to the prosecution, or getting in touch with the prosecutor before the filing decision is made. Particularly in less serious cases, the defense attorney might be able to explain the incident such that the case never sees a courtroom. But defendants shouldn't get their hopes up too much about this course of action—it often won't work.
Oftentimes innocent defendants have to wait until the filing of charges before their lawyers can get involved. But that doesn't mean that trial is necessarily in the cards. A client meeting with his or her lawyer should give a complete overview of the facts and anything else that might be relevant (for example, the history of the relationship between the defendant and the alleged victim). At that point, the lawyer can weigh the options.
The lawyer might decide that it's best to immediately investigate the incident and gather evidence (including witness declarations). With this information, the lawyer might try to persuade the prosecution to dismiss the charges. For example, a prosecutor might listen to a defense lawyer who can prove that there's no way the facts could have unfolded the way an alleged victim or witness claims. Of course, depending on the situation, many lawyers will decide it's best not to get into too much detail with the prosecution for fear of giving away material in advance of a potential trial.
Sometimes the best move for the defense is to do nothing. It can take several months for the prosecution to learn that there's insufficient evidence to convict the defendant, whether because a witness recants a story or it becomes evident that the witness isn't credible. (For instance, the witness might have a history of false accusations, or an alleged victim might be actually motivated by a family issue, like child custody.)
Other times a case might go away because the defense wins a pretrial motion, like one to suppress illegally seized evidence. Or perhaps (in a felony case), the defense will win the preliminary hearing, and the prosecution will decide not to re-file. There are several in-court proceedings that might bring about the end of a case short of a plea or trial. But the defense's chances truly depend on the circumstances.
You probably need a lawyer for many reasons, not least of which is the pretrial stage. Only an attorney can carry out the tasks discussed in this article. Further, an experienced lawyer's judgment in these matters is essential—your lawyer should be the one to decide which method(s) to pursue, even if that means waiting patiently for trial.
]]>Many states refer to the first appearance as “arraignment,” while others use terms like “initial appearance.” Some states will have both an initial appearance and arraignment depending on the circumstances. No matter how they describe it, they all prohibit law enforcement agencies from confining suspects indefinitely, without judicial oversight.
The timing of the initial appearance varies from jurisdiction to jurisdiction—and isn’t always clear. (In fact, rules on arraignment and initial appearance can even differ from one city or county to another.) Some state laws specify how soon suspects are entitled to appear in court, while others vaguely ban “unnecessary delay” after arrest. Typically, though, a person who was arrested and is sitting in jail must get before a judge within 24 to 72 hours (with some exceptions). If the person is free on bail, the arraignment may happen later.
In both state and federal court, the initial court appearance is typically the point at which the court advises the defendant of the charges and certain constitutional rights, including the right to counsel.
The court may also:
Some states combine "probable cause determinations" with the arraignment. A probable cause hearing is basically a judicial check on law enforcement’s authority to keep a suspect in custody. If the court doesn't find probable cause (sufficient grounds) to believe the defendant committed the crime—a rare occurrence—it must order the defendant's release.
In practice, government agents have a bit of slack—as long as they make a conscientious effort to get a suspect in front of a judge quickly, they’re probably in the clear. And even an illegal delay in bringing a defendant to court probably won’t invalidate a subsequent conviction unless the delay somehow contributed to it. (U.S. v. Chavez, 705 F.3d 381 (8th Cir. 2013); Morse v. U.S., 256 F.2d 280 (5th Cir. 1958).)
In a 2009 federal case, for example, FBI agents arrested the defendant for bank robbery pursuant to an arrest warrant early on a Friday morning. The agents began trying to locate a magistrate shortly after the arrest but couldn’t find one who was free before Monday, which is when they ended up taking the defendant to court. In the meanwhile, the officers interviewed the defendant—during that interview, which was more than 12 hours after the arrest, he gave self-incriminating statements.
The defendant asked the court to suppress (exclude) his statements because he made them before officers had brought him to a judge. Federal law allows for the suppression of any statements made by a defendant before an initial court appearance if there was an unnecessary delay in getting him or her before a judicial officer. (Statements by the suspect within six hours of arrest are presumptively admissible.) But, because the court considered the delay between the defendant’s arrest and first appearance reasonable, it refused to suppress the defendant’s statements. (U.S. v. Harrold, 679 F.Supp.2d 1336 (N.D. Ga. 2009).)
If you've been arrested or charged with a crime, consult an experienced criminal defense attorney as soon as possible. An experienced lawyer can aid in trying to get you out of jail, guide you through the court process, and fully advise you of the applicable laws.
]]>An arresting agency or county sheriff’s department must bring someone who's been arrested without a warrant before a judicial officer (a magistrate or judge) within 48 hours—unless the person has already bailed out of jail. (Ga. Code § 17-4-62; Ga. Unif. Super. Ct. R. 26.1.) The timeframe is 72 hours if there was a warrant for the arrest. (Ga. Code § 17-4-26; Ga. Unif. Super. Ct. R. 26.1.) (For someone who has bailed out of jail, the next court appearance—either a commitment hearing or an arraignment—may be several days or a couple weeks later.)
At the initial appearance, the judicial officer typically begins by:
In Georgia, defendants accused of felonies have a right to indictment by grand jury. The judge or magistrate will inform the defendant of this right at the initial appearance and of the time the next grand jury will convene. (Ga. Unif. Super. Ct. R. 26.1.)
If, at the initial appearance, the defendant exercises the right to counsel, the judicial officer doesn’t need to provide a lawyer immediately. But if the defendant exercises that right and no attorney is present, the officer can’t initiate any “critical stage” of the proceedings, such as taking a plea. (O’Kelley v. State, 278 Ga. 564 (2004), disapproved of on other grounds in Stinski v. State, 286 Ga. 839 (2010).)
At the initial appearance, the judicial officer typically sets bail. Importantly, though, bail isn't always required—defendants are sometimes released on their own recognizance.
Initial appearances usually occur in magistrate courts. But only superior courts (the highest trial courts in Georgia) have jurisdiction over felony trials, and only superior court judges can set bail on many felonies. (Ga. Const. Art. VI, § IV, para. 1; Ga. Code § 17-6-1; Ga. Unif. Super. Ct. R. 26.1(H).)
If only a superior court judge can set bail for the charged crime, the defense can petition the superior court, asking for release on bail. The court then notifies the district attorney and sets a date for a hearing within 10 days of receiving the petition. (Ga. Code § 17-6-1(d).)
One purpose of the initial appearance is to provide judicial oversight for an arrest. For a warrantless arrest, the judicial officer will make a probable cause determination—that is, determine whether there’s a valid basis for the arrest. (Ga. Code § 17-4-62; Ga. R. Unif. Mag. Ct. R. 25.1(6).) The judge may consult a sworn police report or affidavit to make this determination.
Georgia law normally requires that authorities release a defendant whom they haven’t brought before a judicial officer within 48 hours of warrantless arrest. (Ga. Code § 17-4-62.) But officers getting a warrant even after arrest, as long as they do so within the 48-hour period, meets legal requirements. (Ellison v. State, 242 Ga. App. 636 (2000).)
A defendant not brought to an initial appearance within the legally required time might not have many options. (Someone in this position, like anyone facing charges, should try to consult a defense attorney as soon as possible.) For instance, Georgia courts have indicated that the government’s failing to bring a defendant to court on time doesn’t have to result in evidence being suppressed. (Chisholm v. State, 231 Ga.App. 835 (1998), overruled on other grounds in Murphy v. State, 270 Ga. 72 (1998) and called into question on other grounds in Blaylock v. State, 242 Ga.App. 195 (2000).)
If you’ve been arrested or charged with a crime, seek the help of an experienced attorney as soon as possible. This article provides just a broad overview; a lawyer familiar with your court system should be able to explain all the relevant court processes, which can be complex.
An experienced lawyer can also tell you about the law that applies to your case, including any recent changes in the law and any local rules that apply (for example, rules specific to the city you're in). Such an attorney should also be able to help in trying to get you out of jail, advise you as to what plea to enter, and otherwise guide you through the court process.
Updated May 30, 2019
]]>If police arrest and hold a defendant in custody (jail), they must bring the defendant before the court within 24 hours of the arrest. The first appearance takes place in front of a judicial officer (magistrate or judge). The defendant may appear either in person or by live video feed. The prosecutor and a public defender will also be present. The prompt timing required under this rule is meant to ensure defendants—who are presumed innocent—don't languish in jail on unsubstantiated charges.
The purpose of the first appearance is to:
Criminal charges. The judge will inform the defendant of the pending criminal charges and provide the defendant with a copy of the complaint.
Right to counsel. If the defendant would like counsel but can't afford to hire a lawyer, the judge must appoint an attorney to represent a defendant by the time of the first appearance or provide a public defender at the hearing. Defendants who plan to retain private counsel must be given a reasonable amount of time to send for, and consult with, their lawyers prior to the first appearance.
Bail and pretrial release. A judge will likely review the defendant's request for pretrial release. The judge may order release subject to conditions that reasonably protect the community and assure a defendant’s future appearances at court. The judicial officer may set bail, allow posting of a bail bond, or grant release on a person’s recognizance (a promise to appear). Along with bail, the judge often orders release conditions such as remaining law-abiding and having no contact with the victim. (Defendants accused of committing crimes subject to a life or death sentence are not guaranteed the right to bail in Florida.)
(Fla. R. Crim. Proc. 3.130, 3.131.)
For defendants who were arrested without a warrant and remain in jail, the court must generally hold a non-adversarial probable cause hearing within 48 hours of warrantless arrest (if the issue of probable cause was not addressed at the first appearance). Basically, at this hearing, the judge determines—usually by reading whatever sworn statement the arresting officer has submitted—whether sufficient grounds exist to believe the defendant committed the charged crime(s).
Often the judge finds probable cause, but if it doesn't, the defendant may be entitled to release. The judge can also address violations of prescribed time limits (the 24- and 48-hour rules) at this hearing and, when finding such violations, order a defendant’s release or other remedies. In either case, release does not necessarily mean the case is dismissed. The prosecutor may seek to have the defendant rearrested or charges refiled at a later time. But the hearing prevents the authorities from detaining the defendant while they go on a fishing expedition for probable cause.
(Fla. R. Crim. Proc. 3.133.)
Generally, the next step will be the defendant’s arraignment, where the judge will read the charges and ask the defendant to enter a plea of not guilty, guilty, or if allowed, no contest (also called nolo contendere). Many defendants plead not guilty at this point, and the judge will schedule pretrial motions and set the case for trial. But the decision on what plea to enter isn't always that easy. A defendant should consult with their attorney regarding their plea options and the potential consequences.
(Fla. R. Crim. P. 3.160, 3.170.)
If you've been arrested or charged with a crime, contact a criminal defense attorney as soon as possible. Getting arrested and being held in jail are stressful events, and an experienced criminal defense lawyer can guide you through the complex criminal justice process, help you understand what to expect, protect your rights, and work to get you released.
]]>In many states, the prosecutor may eliminate the need for a preliminary hearing altogether by convening a grand jury and obtaining an indictment. And, for strategic reasons, defendants may decide to waive (give up) their right to the preliminary hearing altogether and proceed directly to trial.
The preliminary hearing typically takes place soon after charges are officially filed against the defendant. For instance, federal law requires that a preliminary hearing be held within 14 to 21 days after the defendant's initial appearance. (18 U.S.C. § 3060; Fed. R. Crim. Proc. 5.1.) Many states have similar time frames.
As it happens, defendants can and often do “waive time,” which allows the preliminary hearing to be delayed to a time convenient for all the major players in the case. Delays usually benefit the defense, which is why it’s very common for defendants—on the advice of their attorneys—to agree to waive time.
In some ways, preliminary hearings are previews of what the trial will be like, if the case gets that far (most don’t). A prosecutor offers testimony from witnesses and may also introduce case-related evidence, such as a weapon.
Typically, prosecutors present only enough evidence to convince the judge that probable cause exists to hold the defendant for trial.The defense has the right to—and most often will—cross-examine prosecution witnesses both to find out more about their observations and test their demeanor. This helps the defense prepare to cross-examine these witnesses at trial and may also present defense attorneys with information that they can use to improve their positions in plea negotiations. After the prosecution is finished with its presentation, the defense has the right to put on its own case, but is not required to do so—and usually doesn’t.
Many of the same procedural rules that govern trials apply in preliminary hearings. For example, ordinary witnesses (nonexperts) may testify only to what they have perceived; they may not give opinions. And the defense and prosecution may object to evidence and testimony offered by the other side.
However, one important difference between preliminary hearings and trials is that frequently hearsay evidence is admissible in preliminary hearings.
Preliminary hearings usually are conducted in open court where the public, the defendant and defendant’s family, any victims, the media, and any other interested people may all be present. In rare cases, however, the judge may decide to close the courtroom (for example, in the case of a sex crime where the victim is a child).
A preliminary hearing usually has one of three outcomes:
After a defendant is bound over for trial, a prosecutor typically files a separate document (often called an “information”), which signals the start of further court proceedings.
Defendants who are free on bail normally remain free following the preliminary hearing but are required to appear in court at the next scheduled hearing. In-custody defendants stay in jail awaiting their next court appearance, although they can renew their request for bail at the preliminary hearing. Bail is always reviewable, and a judge might grant bail if the actual facts (as presented at the prelim) are not as bad as the police report made them sound.
At this point, depending on the jurisdiction and the seriousness of the crime, the case will proceed in one of these ways:
The criminal justice process is complex and can be overwhelming. If you're concerned about an upcoming preliminary hearing, talk to your attorney and ask questions. A little information can go a long way.
Both an information and indictment contain the criminal charges being levied against a defendant. Prosecutors in some states have the option of filing felony charges through an indictment (in-DITE-ment) rather than a complaint or information.
When filing a felony complaint, a prosecutor must typically go in front of a judge with a factual basis for the charges. This presentation occurs in a preliminary hearing. After the preliminary hearing in many states, the complaint gives way to an “information."
For an indictment, the prosecutor presents evidence in support of criminal charges to a grand jury. If the grand jury finds sufficient evidence of criminal behavior, it returns an indictment. In federal court, felonies typically proceed through the grand jury process. States vary as to whether an indictment is mandatory or discretionary for felony charges.
Both an indictment and a typical complaint or information signify a determination by a neutral third party (grand jury or judge) that there is a factual basis for criminal charges. The purpose is to prevent defendants from facing unfounded criminal accusations.
Read more on why a prosecutor might choose a grand jury over a preliminary hearing.
]]>The offense is trivial or low priority. Prosecution offices may view certain types of crimes as insignificant or not worth pursuing (perhaps due to limited resources or political pressures). For example, a prosecutor may decline to prosecute all cases involving possession of very small quantities of marijuana. Or the prosecutor may decide not to pursue charges against a group of protesters arrested at a local political rally.
Minor, nonviolent case goes to mediation. In some locations, minor criminal complaints are diverted out of the court system before prosecutors file charges. The alleged offender and complainant are brought together to discuss their problem, sometimes with a facilitator or mediator, to come up with some sort of solution. If you’re interested, ask your defense attorney or public defender whether mediation is available in your jurisdiction.
Civil compromise. Defense lawyers often try to prevent the filing of criminal charges by arranging for a civil compromise. Much like mediated agreements, the defendant agrees to reimburse a victim for damages. In return, the victim asks a prosecutor not to file charges. This option gives wealthier arrestees a ticket out of the criminal justice system that may not be available to those who can’t afford it.
The police officer failed to observe the suspect’s rights. If, through obvious police error, the prosecution lacks enough admissible evidence to make a criminal charge stick, the charge probably won’t be brought in the first place.
The victim asks that no charges be brought. Charging decisions are for prosecutors, not victims. However, if victims ask prosecutors not to bring charges and make it perfectly clear that they will not cooperate, prosecutors often won’t file charges. In past years, this type of situation was common in family disputes. In the heat of an argument, battering, or other abuse, the victim would call the police, leading to the arrest of the abuser. For personal reasons (whether fear of retaliation or hopes of making up), the victim would then refuse to cooperate and charges would not be filed. In recent years, the law enforcement community has begun to take domestic abuse allegations more seriously, and many prosecutors now bring and prosecute domestic abuse charges even if the victim doesn’t want to pursue the case.
The prosecutor views the suspect as a good person. Occasionally, a prosecutor will decide that a basically good person made a stupid mistake that shouldn’t result in a consequence as severe as a criminal charge. In such a situation, the prosecutor will refuse to prosecute, either in the interests of justice or because it would be a waste of resources (time and money) to charge such a person with a crime, even though the initial arrest was valid.
The prosecutor wants one defendant. Commonly, a prosecutor will drop charges against one suspect in exchange for that suspect’s testimony against another suspect.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.
]]>A defendant might waive the right to a preliminary hearing for several reasons, including the following.
An arrest, by itself, doesn’t begin formal criminal proceedings. Rather, the filing of a document in court is required. In most instances in state court, the document is a “complaint.”
Complaints can be either civil or criminal. Civil complaints initiate lawsuits, typically between private parties or a private party and the government. Criminal complaints, on the other hand, are almost always filed by the government. (Some states allow citizens to file criminal complaints or applications for them.)
A state prosecution usually begins after a police officer arrests someone and presents the case to the prosecution. The latter then files a complaint, which charges the defendant with the relevant crime(s). So begins the legal process.
A complaint typically lists:
Can I be charged again, even when the case was dismissed at arraignment?
The double jeopardy rule against being tried twice for the same crime protects defendants from being tried twice on the same charges.
But as long as the statute of limitations (the period of time within which a case can be filed following a crime) has not run out, the police can rearrest defendants whose cases have been dismissed at arraignment. Defendants are not considered to be “in jeopardy” for purposes of the double jeopardy rule until the trial actually begins. Dismissal followed by rearrest can be expensive—a defendant may have to obtain a second bail bond and pay a second fee.
by: Paul Bergman
Typically, when officers make an arrest, they draft reports, then present those reports to the prosecution. The prosecution then decides whether to file charges against the arrestee. There are, however, instances in which an arrest may follow the filing of a charging document. For example, a grand jury might indict a defendant, after which point the authorities take him or her into custody.
]]>Some defendants ask to delay plea entry—for example, because they haven't yet been able to hire counsel. And sometimes judges agree. But whether because they’re uncooperative or don’t fully appreciate what’s going on, some defendants refuse to plead.
If the defendant refuses to enter a plea—or to even speak—then the judge will typically enter a not guilty plea on his or her behalf. (The judge may first try to determine why the defendant won’t plead and convince him or her to do so.) Someone who persistently refuses to plead may very well end up in trial, because a plea bargain is obviously out of the question.
]]>Lawyers. Lawyers who threaten to take opponents to criminal court in order to gain an advantage can be subject to discipline for unethical behavior. This scenario sometimes arises in particularly contentious cases: Lawyer A threatens to report Lawyer B or Lawyer B’s client to the authorities for some kind of alleged misconduct unless they cave to A’s demands. Of course, if the threatened party has actually committed a crime, that party probably won’t want to report the threat-maker (thereby potentially drawing the interest of law enforcement investigators). Whether a lawyer who makes this kind of threat can be disciplined depends on the law in the jurisdiction. In California, for one, the relevant rule says that a lawyer “shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” (Cal. R. Prof. Conduct 3.10 (2021).)
Members of the public. It can even be a crime to threaten to initiate criminal proceedings against someone. In Washington, for example, trying to obtain goods or services from another by the threat of criminal prosecution constitutes second-degree extortion. (Wash. Rev. Code §§ 9A.56.110, 9A.56.130, 9A.04.110 (2021).) (It’s a defense that the defendant reasonably believed the threatened charges to be true and was acting solely to cause the other party to remedy the situation.)
Debt collectors. It can also be illegal for a debt collector to threaten criminal action against someone who is late on a bill. (See this article on debt-collector threats.)
Anyone who’s been threatened with criminal charges should normally consult an experienced attorney as soon as possible.
]]>Although it’s possible, prevailing in a “malicious prosecution” or similar lawsuit against a district attorney or equivalent government lawyer for the act of filing charges is usually a tall task. A criminal defendant turned civil plaintiff must typically prove outrageous conduct by the lawyer(s) in question. For what’s needed to win a malicious prosecution suit, see Suing For Damages: Malicious Prosecution.
]]>A grand jury is a panel of citizens called for service just like a trial jury (also called a “petit jury”) in a criminal or civil case. But a grand jury’s function is different from that of a trial jury.
A trial jury decides issues of guilt after the case has been through trial. A grand jury, on the other hand, hears a prosecutor's evidence that the accused probably committed a crime. At this point, the prosecutor hasn't even charged the suspect. If the grand jury decides that the accused probably committed a crime, then it will issue an indictment, effectively bringing criminal charges against the accused.
Prosecutors present evidence of criminal activity in an attempt to convince the grand jury that criminal charges are warranted. In some states and in federal court, they don’t have to present any evidence suggesting that the target is innocent. The rationale is that the defendant will have the opportunity to present this evidence at trial.
For example, if prosecutors are seeking an indictment of Jane for an armed robbery, they might offer evidence of her fingerprints at the crime scene and a suitcase of money found in her car. In some states and in federal court, they wouldn’t have to tell the grand jury that she has an alibi for the robbery.
In most states, prosecutors can’t present half-truths to grand juries. If prosecutors have strong, credible evidence that points to innocence, they must divulge it. That doesn’t mean, however, that they have to offer every piece of evidence that’s helpful to the accused or that might be used at trial by the defense.
For example, evidence that a prosecution witness is a habitual liar would be helpful to the defendant at trial, but it doesn’t directly negate the commission of the crime. Therefore, a prosecutor wouldn’t be required to present it to a grand jury. And even in states where prosecutors have to present evidence of innocence, they don’t have to go looking for it. In the example above, they would have to present Jane’s alibi only if they were aware of it—they wouldn’t have to try to find out whether she had one.
Even if a prosecutor ignores the duty to offer evidence of innocence, the defendant may be out of luck. That’s because grand jury proceedings are secret, so it’s difficult to know what was or was not presented to the jurors. Courts may release the grand jury records if the defense has made a really strong case as to why the information is necessary, but they don’t often grant these requests. And the defense must bring any motion trying to overturn the indictment before trial; otherwise, the court won’t consider it.
]]>However, there’s always a chance the defense could prove otherwise, and the judge might dismiss the case or reduce the charges at the close of a preliminary hearing. Here are some examples of how that might happen.
Say the eyewitness identification of the defendant doesn’t hold up under cross-examination. If there’s no other credible evidence to show that the defendant committed the crime in question, the whole case against the defendant might unravel, and the judge may readily agree to dismiss the charges (or reduce them to a charge that doesn't require the eyewitness testimony).
A key prosecution witness could fail to show up or become reluctant to testify. This might happen if the defendant is a spouse, family member, or friend; and the preliminary hearing is being held in a state that requires the witness to attend rather than allowing the police to relate what the witness told them. (Of course, tampering with a witness by means of intimidation, coercion, or threats is a crime—often a felony.)
The prosecution fails to offer evidence in support of each element of the crime charged. For example, to convict a suspect of grand theft, the prosecution usually must show that (1) the defendant, (2) took and carried away, (3) property with a value of more than $1,000, (4) belonging to another (person or company), (5) with the intention of depriving that person or company permanently of the property. In the preliminary hearing, the prosecution does not have to prove each of these elements beyond a reasonable doubt, but it does have to produce some evidence to substantiate each element. If the prosecution does not put on any evidence as to one or more of the elements, the judge should dismiss the charge.
Example: Mary and a friend were arrested for grand theft for allegedly stealing a watch from a department store. At the preliminary hearing, the prosecution puts on evidence to show that Mary and her friend were in the store the day a watch was stolen. A visual recording depicts Mary's friend putting a watch in her backpack. There is no visual recording of Mary. Mary was wearing pants with no pockets and was not carrying a purse, backpack, or anything else at the time. The prosecution presents no evidence whatsoever to show that Mary actually took anything. Mary's lawyer will make a motion asking the judge to dismiss the case on the basis that the prosecution failed to put on evidence for one critical element, namely that Mary participated in the theft of the watch. If the judge denies the motion to dismiss, Mary's lawyer can still try to negotiate a plea bargain with the prosecutor. The prosecutor may be willing to dismiss the charges altogether or reduce them significantly.
]]>The prosecution invokes nolle prosequi or dismissal when it has decided to discontinue a prosecution or part of it. Lawyers and judges refer to the charges “nol prossed” or dismissed. The prosecution may nol pross all charges against the defendant or only some.
In some states, the prosecution must move to dismiss charges (often “in the interests of justice”), and the case doesn’t end until the court grants the motion. In others, the prosecution can unilaterally dismiss charges.
A prosecutor might nol pross or dismiss charges for a variety of reasons, including:
Example: Wee is arrested for assault with a firearm. Officers take statements from two witnesses who say they saw him fire a gun at someone walking down the street. After reading the police reports, the local prosecutor decides to press charges. Weeks later, officers find the weapon underneath a garbage dumpster near the place of the shooting. Forensic testing reveals the fingerprints of someone other than Wee on the weapon. The prosecution nol prosses the charges.
The normal effect of nolle prosequi is to leave matters as if charges had never been filed. It’s not an acquittal, which (through the principle of double jeopardy) prevents further proceedings against the defendant for the conduct in question. Rather, at least when it occurs before trial, nolle prosequi typically leaves the decision of whether to re-prosecute in the hands of the government. If the prosecution decides to bring charges again—for example, after it’s gathered more evidence—it must file a new charging document. (People v. Daniels, 187 Ill. 2d 301 (1999), Kenyon v. Com., 37 Va. App. 668 (2002).)
However, dismissals are sometimes "with prejudice." A dismissal with prejudice means the prosecution can’t ever refile charges; dismissal without prejudice means the prosecutor can refile the charges.
]]>A demurrer involves a consideration of the document itself—not any of the evidence. Some demurrers go to the heart of the charging document by alleging that it fails to state an offense, while others challenge its form—for example, by arguing that it’s too vague or uncertain.
Demurrers usually occur at or before the time for entering a plea. If the court grants a demurrer, the prosecution can typically re-file charges. Similarly, some errors are so minor that the prosecution or judge can simply edit them and otherwise leave the charging document intact. But sometimes the demurrer reveals an underlying problem with the prosecution’s case that can’t be fixed.
Example: The prosecution charges Walter with a statute that penalizes violation of the terms of a family violence order. But the complaint doesn’t indicate the terms that he allegedly violated or the manner in which he violated them. It doesn’t specify, for example, that he came to the family home when prohibited from being there, or that he came within a prohibited distance of his estranged wife. The court grants Walt’s demurrer. (Newsome v. State, 296 Ga. App. 490 (2009).)
Example: Gus files a demurrer to a complaint that accuses him of threatening Walter in violation of a statute that prohibits “criminal threats.” Gus claims that the statute is unconstitutional because it infringes free speech, and that the complaint is therefore void. The judge rejects this argument on the grounds that previous courts have rejected similar claims; they’ve held that the Constitution doesn’t protect all kinds of “speech.”
Example: In a theft prosecution, Saul argues that the complaint is faulty because it doesn’t provide the name of the owner of the allegedly stolen property. But Saul didn’t raise this technical argument until after pleading to the indictment, so the court deems it “waived.” (Lanier v. State, 269 Ga. App. 284 (2004).)
]]>Preliminary hearings serve to protect the defendant from unfounded criminal charges—making sure the prosecutor has sufficient evidence to allow a criminal trial to go forward. These hearings also differ from trials in other respects, such as:
After a preliminary hearing, prosecutors and defense attorneys sometimes agree to “submit the case on the record.” When this happens, a judge (not a jury) will review the preliminary hearing transcript to determine the defendant’s guilt.
A prosecutor might agree to submit on the record when the case is weak but the prosecutor’s office doesn’t want to dismiss charges outright. If the judge dismisses the case, the prosecutor can deflect criticism from angry victims or police officers to the judge.
More often, a case submitted on the record favors the prosecution rather than the defense and, in essence, is a slow plea of guilty. In such cases, the defense knows that a guilty verdict is all but certain, but by submitting on the record, the defense can move the case more quickly to an appellate court or simply offer an out to a defendant whose case is hopeless but doesn’t want to plead guilty or nolo contendere. (Defense attorneys can submit on the record only if the defendant agrees to waive trial.)
Even though the defense doesn’t expect to see all the prosecution’s cards, the preliminary hearing may give the defense a preview of:
Basically, the defense tries to size up how solid the government’s case is as a whole. Such information can be important to the defense—whether it ultimately settles the case in a plea bargain or proceeds to trial.
If the prosecution’s case seems weak—say the prosecution witnesses change their earlier stories, forget important details, or are otherwise discredited—the defense may decide it’s worthwhile to proceed to trial. The prosecution, on the other hand, might decide to offer a generous deal, or at least, the defense may gain leverage to push for one.
Example. Say the arresting officer is the state's main or only witness. If the defendant can undermine the arresting officer’s credibility, the prosecutor may be willing to offer a much better deal following the preliminary hearing even if the prosecutor refused to budge on his or her offer earlier.
If, however, the government’s case seems very strong, this information may help the defense decide to accept a plea bargain. Even if a plea deal was not what the defense had hoped for, the preliminary hearing might show a deal is better than wasting further energy and money fighting what looks to be a losing battle. Because more than 90% of cases end before trial, it’s clear that a primary defense goal at the preliminary hearing is to look for evidence it can use to get the best possible result at the plea bargaining table.
Information gathered at the preliminary hearing will also help the defense if the case is one of the few that do go to trial. Whether or not the defense presents its own witnesses, the defense will usually vigorously cross-examine prosecution witnesses in the preliminary hearing. This cross-examination gives the defense an opportunity to see how the prosecution witnesses will hold up and pin them down as to what their testimony will be at trial. (If they change their testimony at trial, the preliminary hearing testimony can be used to attack or "impeach" their credibility.)
As useful as a vigorous cross-examination of prosecution witnesses can be, a sound alternative defense strategy is to cross-examine prosecution witnesses very briefly and politely. This serves two purposes:
If you're facing criminal charges, talk to your attorney about your options and possible defense strategies. Attorneys must make many tactical decisions but the more you understand, the better you can help your own defense.
]]>Key differences exist between these two procedures. This article discusses some reasons why a prosecutor might choose a grand jury over a preliminary hearing (when it's an option). (For more information on grand juries, check out Grand Juries on Nolo.com.)
Unlike a preliminary hearing held in court with the defense side present, the grand jury doesn’t make its decision in the context of an adversary proceeding. Rather, it’s a one-sided affair.
Grand jurors see and hear only what prosecutors put before them. (While prosecutors technically have an obligation to present "exculpatory" evidence—evidence that suggests that a defendant might not be guilty—there’s not much other than the prosecutor's conscience to enforce this rule.) During a preliminary hearing, the defendant can also see and cross-examine prosecution witnesses, which gives them a good preview of the prosecution's case. This situation doesn’t present itself in the context of a grand jury.
In part because there's no one on the "other side" to contest the prosecutor's evidence, grand juries almost always return an indictment as requested by the prosecutor. According to a U.S. Department of Justice study, "Grand juries are notorious for being ‘rubberstamps' for the prosecutor for virtually all routine criminal matters." (McDonald, William F., Plea Bargaining: Critical Issues and Common Practices (1985).) It’s also suggested that grand juries rubber stamp prosecutors' charges because grand jurors are not adept at evaluating evidence like judges are—making it easier to convince a grand jury than a judge that the defendant should stand for trial.
Prosecutors often prefer grand juries because the proceedings are secret, whereas preliminary hearings are open to the public. The rule on secrecy is meant to provide several benefits. For the accused, it protects their reputation should no charges issue. For witnesses, it’s meant to allow them to testify more freely and truthfully. And for the prosecution, it provides control of information. But critics of secrecy rules say it runs counter to the fairness and transparency of the justice system.
Finally, in highly publicized or controversial charging decisions, prosecutors may opt for a grand jury to provide a political buffer. But sometimes this decision backfires. While prosecution offices previously went before grand juries in many police shooting cases, public outcry at the lack of transparency and accountability has resulted in a change of tactics for some prosecution offices.
]]>How long after arrest do I have to wait to find out what the charges are?
For suspects who are in custody, some kind of court appearance (usually an "arraignment" or "initial appearance") must typically occur within two or three days. At that court appearance, the government presents the charges against the defendant. The charges are normally subject to change, though. For example, a prosecutor might not make a final decision on charges until after a preliminary hearing, which can take place more than a month after arrest.
For more detail on the first court appearance and what happens at it, read about the arraignment process.