Stage 3: The Pre-Trial
PreTrial Conference- Prelim Setting
After an arraignment, the next phase in a criminal proceeding assuming that, in a felony case, the right to a speedy Preliminary Hearing is not exercised goes by the various names of a Pre-Trial Conference (or, simply, Pre-Trial), Preliminary Hearing Setting (Prelim), or Early Disposition Program Hearing (EDP). During this pre-trial phase, various positive things can happen, including the opportunity to settle the case at an early stage in the proceedings.
There can be, and often are, several Pre-Trial dates. Some of the things that happen at Pre-Trial are:
- Exchange of Discovery – On the arraignment date, the complaint and police report are provided. These are usually just the bare-bones when it comes to a criminal case. Other important evidence trickles in more slowly and is usually exchanged at Pre-Trials. Things like 911 tapes, Body Worn Video (BWV) or police cam footage, Unit History Reports (showing the travel of the police cars), two-way radio communication from dispatch, supplemental police interview reports or law enforcement analysis, toxicology reports, medical reports, and autopsies. Although every good attorney will want all the facts at his or her disposal before advising the client and proceeding forward, a really seasoned attorney will anticipate possible bad evidence and sometimes be able to settle a case prior to that evidence coming out, thus preventing the prosecutor from gaining additional leverage.
- Motions – A motion is a hearing before the Court asking the judge to make a specified ruling or order. Important motions can be heard by the judge during Pre-Trial conferences.
For example:
- PC 1538.5 Motion to Suppress Evidence (or suppression motion ) is a request that the Court prohibit the introduction of illegally obtained evidence at a criminal trial. A Motion to Suppress based on an illegal search is a common motion at pre-trials for misdemeanors or at the preliminary hearing for felonies.
- Pitchess Motions request information from an officers personnel file to look into complaints of wrongdoing related to the issue at hand.
- Motion to Compel Discovery Requests are motions that force the prosecution to gather and turn over evidence when they it is not voluntarily doing so.
- Motion to Reduce to a Misdemeanor pursuant to PC 17(b)(5) in the case of wobblers. A wobbler is a crime that can be considered either as a felony or as a misdemeanor.
- Motion to Rule on the Admissibility of Evidence At the pretrial, an attorney might make a motion to throw-out a defendants purported confession because it was involuntary, not intelligently given, or given in violation of the defendants Miranda rights. This would also be the time to request a court order to subpoena a purported victims mental health records, or to do an Evans motion for a line-up when an eyewitness identification is necessary to resolve a mistaken identity issue.
- Motion to Dismiss the case pursuant to Statutory Diversion, such as military diversion, mental health diversion, or Court diversion (PC 1000). A pre-trial diversion program allows a defendant to postpone further action in the case until completion of a treatment program.
- Negotiated Plea Agreement – This is one of the most important pre-trial events. A Negotiated Plea Agreement gives both parties a chance to resolve the case without having to litigate the issues at a trial or preliminary hearing. After several times coming and going to Court, the prosecutor gets a sense of the defendants commitment to fighting the case and may become more flexible in negotiating terms, such as jail, a misdemeanor instead of a felony, or a non-strike rather than a strike offense. The same principle works in reverse; sometimes it takes several pretrial dates to determine a prosecutors commitment to an offer.
In summary, much of the work that happens in a criminal case happens during pretrial. In a criminal case timeline, pretrial comes somewhere in the middle. The early phases are the arrest and arraignment, the middle phase (for a felony) is the preliminary hearing, and the end phase is a trial. The pretrial can be thought of as that stage of the proceeding between the arraignment and trial.
So how long between pre-trial and trial?
The timeframe between the pre-trial and the trial varies greatly, and can be anywhere between 30 days up to 2 years. The reason for this is because the defendant and the attorney have a good measure of control over how long the pre-trial lasts.
On the one hand, the defendant has a right to a speedy trial so we can shorten the pretrial period to as little as possible. That speedy-trial right means a trial can usually start within 30-90 days if the defendant wants it.
On the other hand, the defendant and his attorney can “waive time” and extend the pretrial period for various reasons, including to do a thorough investigation or seek additional discovery or simply because the attorney is very busy. Cases have been extended for years, although there are limits to this as well since many Judges do not like super old cases in their courtroom and will eventually press a defendant to either go to trial or plead guilty.
An Extremely Important Step
Its highly preferable that you call a lawyer for legal advice as soon as possible and it’s completely free to consult. Contact Esfandi Law Group now, it’s completely free.
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Seppi Esfandi is an Expert Criminal Defense Attorney who has over 20 years of practice defending a variety of criminal cases.
