Most criminal cases do not go to trial, but are resolved through plea bargains. Criminal pretrial procedures, the events that occur after arrest and before trial, often determine if a case goes to trial and what type of plea bargain the state will offer.
The first step in criminal pretrial procedures is an arrest or notice that charges have been filed. An arrest can occur after an arrest warrant has been issued or, if a police officer witnesses the act, an arrest can be made without a warrant. In some instances, the court may issue a summons. A summons is a notice to appear before the magistrate at a particular date, place, and time.
If the court gives you a summons, follow the instructions on the summons concerning when and where you are to present yourself to the court. If you ignore the summons, the court will issue an arrest warrant. Call a criminal law attorney as soon as possible if you are arrested or receive a summons.
A person must be taken before a magistrate within twenty-four hours of being arrested. For a person in custody, the first order of business will be to post bail and get out of jail. The magistrate will set the release conditions. When it comes to determining pretrial release conditions, flight risk, danger to the community, and ties to the community are critical factors. The release conditions may include a restraining order prohibiting contact with particular individuals. Arizona Revised Statute (ARS) 13-3967 contains the full provisions pertaining to pretrial release for bailable offense. The statute can be found at: www.azleg.gov.
The court classifies certain offenses as non-bailable. The non-bailable offenses include capital offenses, sexual assault, and sexual activity with a person 15 years of age or younger. Also, a serious felony charge coupled with probable cause that the defendant is in the United States illegally is a non-bailable offense. ARS 13-3961 contains the full list of non-bailable offenses; you can find the statute at the following site, www.azleg.gov.
ARS 13-3962 adds a caveat: a person charged with a non-bailable offense can still be released on bail if, “the proof is not evident or the presumption not great that he is guilty of the offense“. (See ARS 13-3962 here: www.azleg.gov.).
What You Should Do
Obey all pretrial release conditions. Do not miss or be late for court appearances. Obey all restraining orders that forbid you from having contact with a particular person. This provision often trips up people charged with domestic assault. Violating a pretrial release order can result in another order for your arrest and make it much more difficult, if not impossible, to get out of jail before a trial or plea agreement is signed.
A person accused of a crime has the right to legal counsel. You should retain an attorney as soon as possible. The magistrate will determine bail and whether sufficient evidence exists to hold a person on their initial appearance. The presence of an attorney should help you obtain more favorable pretrial release conditions.
If in custody, you are entitled to a preliminary hearing before the magistrate within ten days. A person not in custody is entitled to a preliminary hearing within twenty days. The purpose of the preliminary hearing in criminal pretrial procedures is to determine if probable cause exists to justify the charges. At the preliminary hearing, the prosecutor examines witnesses and then the defense cross-examines them. Do not be discouraged if you lose this portion of the pretrial process.
A grand jury proceeding may occur prior to the arrest or after the arrest. The purpose of the grand jury proceeding is similar to the preliminary hearing, which is to insure a person is not held on groundless charges. The defense counsel does not cross-examine witnesses and only the prosecution offers evidence at a grand jury hearing. Again, do not be disturbed if the grand jury returns an indictment against you. This happens far more often than not, and it is not a determination of guilt.
Suppress Inadmissible Evidence
The court also holds pretrial hearings to determine if the state obtained its evidence in a legal manner. The defense attorney can make a motion to suppress evidence that the state obtained illegally. That means the state cannot use it at trial. However, evidence that is inadmissible at a trial can be used at a preliminary hearing and a grand jury hearing.
Disclosure of Evidence
In felony cases, the Arizona Rules of Criminal Procedure, Rule 15.1, requires the prosecution to furnish the defendant with the names of witnesses the prosecution plans to use, statements made by the defendant and other witnesses, a list of the physical evidence the state will use and other evidence. (The text of Rule 15.1 can be read here: govt.westlaw.com).
Assess the Information Obtained From Pretrial
The defense attorney can more accurately assess the jeopardy the client faces once the state has complied with the disclosure rules. Moreover, preliminary hearings and motions to suppress evidence also provide the defense attorney with information concerning the strength of the state’s case. This is important because the defense attorney and the client can determine if a trial or plea bargain is in the client’s best interest. In addition, the information obtained in pretrial procedures also influences plea bargain conditions
Contact a Lawyer Experienced With Criminal Pretrial Procedures
Criminal pretrial procedures are important. Motions to prohibit inadmissible evidence, pretrial release conditions, and disclosure of the state’s evidence all affect what occurs at trial, or if there is a trial. Howard Snader is an experienced criminal law attorney who knows how to win at trial. However, he also knows his clients’ best interests are often determined in the less dramatic, but important work that is done before a case reaches trial. Howard Snader fights for his clients from the moment a criminal complaint or indictment is issued until the case is resolved. Mr. Snader can be reached at 602-899-0590.