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Pretrial Hearings and Motions

In the criminal justice system, a case is often decided before the actual trial. Prosecutors and defense attorneys can file any number of pre-trial motions that exclude evidence or otherwise shape the proceedings. Oftentimes, the outcome of a case hinges on the results of these motions and the hearings that accompany them. This section describes some of the different types of pre-trial motions and hearings that can occur during a criminal prosecution.

Preliminary Hearing

A preliminary hearing takes place after arrest, booking, and a bail hearing have taken place. At the preliminary hearing the charges against the accused are read. The accused is asked whether they have an attorney or need one appointed by the court. They then answer the charges and "plead" guilty, not guilty, or no contest. Bail may be revisited and amended at this point, the prosecutor provides documents relevant to the case and a calendar is set for future activity on the case, including setting a schedule for pre-trial motions and the trial itself.

Criminal Charges

There are several different ways that criminal charges are brought against the accused. For relatively minor criminal charges a police officer can charge a crime by issuing a citation, commonly called a "ticket." Citations are only issued for infractions; crimes that are not punishable by prison. Someone cited with an infraction may simply pay the ticket to avoid going to court, or can appear in court to argue their case.

Criminal charges are brought in more serious cases with either an “indictment” or“information.” An indictment issues after a grand jury proceeding. A prosecutor reviews the evidence gathered by the police and submits it to a jury. The jury then decides whether the accused should go to trial. This system is sometimes chosen when the prosecutor is uncertain about the evidence and may use the grand jury to test the strength of their evidence against the accused.

The other method of filing charges, an "information," takes place when the prosecutor files a document with the court alleging the specific crimes that the person has been accused of and providing statements that indicate why the person is accused of the crimes.


Before a trial takes place both sides have an opportunity to exchange information about the facts of the case. Discovery takes place in both civil and criminal trials. Witnesses are questioned under oath in "depositions" or in written "interrogatories." Parties may also present written "requests to admit;" statements to which the other party can only answer by admitting or denying. This helps determine which facts are agreed upon by both sides and do not need to be argued at trial.

"Disclosures" are required when one party intends to take a particular action such as introduce an expert witness or raise certain unusual defenses, such as an insanity defense. Mandatory disclosures vary between states. Finally, "document production requests" are demands between the parties to produce certain documents. In criminal cases the prosecution must provide certain documents such as police reports even if no specific request is made. Decisions made during the discovery phase of a trial can have a serious impact on the outcome and in some cases whether a trial is even necessary.

Pre-Trial Motions

Pre-trial motions take place after the preliminary hearing and before trial. There may be many pre-trial motions in a single case and either side may make pre-trial motions. The outcome of these motions helps determine what evidence will be permitted at trial, what legal arguments are likely to be made, and whether a trial is even necessary. Pre-trial defense motions typically seek to exclude evidence that was improperly acquired and address legal and procedural questions more commonly than factual questions.

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