Section 5.3: Pretrial Process

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Television legal dramas have trained the American people to understand that all of the important legal maneuverings in a criminal case take place in a courtroom in front of a judge and jury. This conception can safely be included among the myths of criminal justice. Consider that over 90% of criminal charges result in a guilty plea and never go to trial.

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Most of these are the result of a plea bargain agreement hammered out between the prosecution (the state) and the defense. The fact is that many important legal steps are taken prior to trial. These steps make for a functional criminal justice system but are not good drama, so they never get the spotlight on television.

The Right to an Attorney

Legal representation is an essential element of the criminal justice system in the United States. Almost every criminal defendant in both state and federal courts is represented by a lawyer, either hired by themselves or appointed by the court (Harlow, 2002). However, in minor offenses, it is more common for defendants to represent themselves. 

Despite the prevalence of court-appointed lawyers, some individuals believe that these lawyers do not perform as well in defending their clients as privately hired attorneys. Nonetheless, a report issued by the Bureau of Justice Statistics (Harlow, 2002) found little difference in trial results when comparing cases where counsel was hired versus appointed. However, a higher percentage of defendants with appointed counsel were sentenced to prison if found guilty. Moreover, the study found that defendants with appointed counsel entered guilty pleas at a higher rate than those with privately hired lawyers.

Before the enactment of the Criminal Justice Act (CJA), the federal judiciary was responsible for appointing counsel for criminal proceedings for those who could not afford it (Courts, 2015). However, there was no authority to compensate appointed counsel for their services or litigation expenses, and federal judges depended on the professional obligation of lawyers to provide pro bono publico representation to defendants who could not retain counsel. In 1964, the CJA was enacted to establish a comprehensive system for appointing and compensating lawyers to represent defendants who could not afford legal representation in federal criminal proceedings. 

The CJA allowed for the reimbursement of reasonable out-of-pocket expenses and payment of expert and investigative services necessary for an adequate defense. However, appointed lawyers were paid substantially less than what they would receive from their private clients.  There are two types of federal defender organizations: federal public defender organizations and community defender organizations.

In 1970, the CJA was amended to authorize districts to establish federal defender organizations as counterparts to federal prosecutors in U.S. Attorneys Offices and as an institutional resource for providing defense counsel in those districts (or combinations of adjacent districts) where at least 200 persons annually require the appointment of counsel. As of today, there are 81 authorized federal defender organizations that serve 91 of the 94 federal judicial districts, employing over 3,100 lawyers, investigators, paralegals, and support personnel (Administrative Office of the United States Courts). 

In addition to these organizations, over 10,000 private “panel attorneys” accept CJA assignments every year, representing the vast majority of individuals prosecuted in our nation’s federal courts. CJA panel attorneys accept appointments in all CJA cases in the four districts not served by a federal defender organization.

In those districts with a defender organization, panel attorneys are typically assigned between 30% and 40% of the CJA cases, generally those where a conflict of interest or some other factor precludes federal defender representation. Across the country, federal defenders receive about 60% of CJA appointments, while the remaining 40% are assigned to the CJA panel (Administrative Office of the United States Courts).

🔍 Reflect

How does the system of court-appointed lawyers, including federal defender organizations and CJA panel attorneys, impact the fairness and outcomes of trials for defendants who cannot afford private counsel?

The Decision to Charge

In the criminal justice system, the police play an important role, but it is the prosecutor who ultimately decides whether or not to charge a suspect with a crime. The government employs the prosecutor as their legal representative, and they are responsible for making the decision to move forward with a case. If the prosecutor chooses to do so, they will file a charging document with the court. This document formally accuses the suspect of committing a crime.

There are two main types of charging documents: an information and an indictment. An information is created by the prosecutor, while an indictment is issued by a grand jury. Although these documents have some differences, they both contain an official statement of the charge against the suspect. It’s important to remember that in criminal cases, it is up to the prosecutor to decide whether or not to prosecute someone.

🔍 Reflect

How does the discretion of prosecutors in deciding whether to charge a suspect influence the fairness and integrity of the criminal justice system, and what potential challenges or benefits does this discretion present?

Reviewing the Charge

In the criminal justice system, a case cannot proceed to trial without first obtaining a judicial determination that there is sufficient evidence to warrant a trial. This determination is typically made by a lower court judge rather than a judge with jurisdiction over felony cases. The standard of proof required in this determination is known as probable cause.

Probable cause refers to the level of evidence needed to establish a reasonable belief that a crime has been committed and that the person being charged with the crime is the one who committed it. This standard is used to protect individuals from frivolous or baseless charges while also ensuring that those who have committed crimes are held accountable for their actions.

It’s important to note that the determination of probable cause is just one step in the criminal justice process, and it does not guarantee that a person will be found guilty or convicted of a crime. Rather, it is a necessary requirement that must be met before a case can move forward to trial.

🔍 Reflect

How does the requirement of probable cause for proceeding to trial protect individuals’ rights, and what are the implications of this standard for both the accused and the criminal justice system as a whole?

First Appearance

A first appearance in court serves several critical functions in the criminal justice system. Firstly, it is an opportunity for the defendant to be informed of the charges against them. This helps ensure that defendants understand the allegations they are facing and can prepare their defense accordingly.

Secondly, during a first appearance, defendants have their constitutional rights explained to them. This is essential to ensure that defendants understand their rights and can make informed decisions about how to proceed with their cases.

Thirdly, if a defendant is indigent and cannot afford a lawyer, the court will appoint legal counsel for them. This is important to ensure that all defendants, regardless of their financial situation, have access to legal representation.

Finally, the judge, at a first appearance, will determine whether or not to grant bail and, if so, how much. Bail is a sum of money that defendants may be required to pay to secure their release from jail pending trial. The amount of bail is typically determined based on several factors, including the seriousness of the offense, the defendant’s criminal history, and the likelihood that they will flee before trial.

Overall, a first appearance in court is a critical step in the criminal justice process, as it helps ensure that defendants understand the charges against them, their constitutional rights, and their legal options.

🔍 Reflect

How does the first appearance in court ensure the protection of a defendant’s rights, and what are the potential consequences if these initial steps are not adequately addressed?


The concept of bail involves the defendant providing money or valuable property to the court as a guarantee that they will appear in court for trial. Failure to show up results in forfeiture of the bail money or property. Sometimes, cash bail is not required, and defendants can be released on their own recognizance with a personal promise to appear in court. This is often shortened to release on recognizance (ROR).

However, not all criminal defendants are granted bail. While the Constitution prohibits excessive bail, it does not guarantee bail in general. The Supreme Court has established that when defendants pose a flight risk or a danger to the community, they may be held in jail until their trial. Others may remain in jail until their trial date because they cannot afford bail.

According to the Bureau of Justice Statistics (2021), 62% of felony defendants in state courts were released before the resolution of their cases. The average bail amount for felony defendants was $27,500 in 2020. Critics of the bail system argue that the increasing reliance on commercial bail bonding discriminates against poor defendants (United States Commission on Civil Rights, 2022).

The seriousness of the offense is the most significant factor in determining bail. Defendants accused of violent crimes such as murder, rape, and robbery are least likely to be granted bail, while those accused of less serious offenses and white-collar crimes are more likely to be released on bail. However, many defendants who are released before trial end up back in jail for various reasons.

Approximately one-third of defendants who are released are charged with pretrial misconduct, such as drug use or failure to comply with court orders (Bureau of Justice Statistics, 2021). Nearly one-fifth of released defendants have a bench warrant issued for failing to appear in court, and about 11% are rearrested for a new offense (National Institute of Justice, 2021).

🔍 Reflect

How does the bail system impact the fairness and accessibility of the criminal justice process, particularly for defendants who cannot afford bail, and what are the potential reforms that could address these issues?

Preventive Detention

Suspects in the United States are generally considered innocent until proven guilty and entitled to bail. This principle was established by the U.S. Supreme Court in the landmark case of Coffin v. U.S. (1895), which defined the presumption of innocence for the first time in U.S. history. While not explicitly stated in the Bill of Rights, the principle of innocence until proven guilty is inferred from the U.S. Constitution. As a result, all defendants are presumed innocent prior to adjudication and cannot be subject to criminal penalties before trial.

However, many states and the Federal government have laws that allow judges to deny bail in cases where the defendant is considered a high flight risk or threat to public safety. The Bail Reform Act (1984) gives federal judges the power to hold suspects without bail when they pose a threat to the public. Some civil libertarians argue that this is unconstitutional because it undermines the presumption of innocence.

In U.S. v. Salerno (1987), the U.S. Supreme Court upheld the constitutionality of the Bail Reform Act of 1984. In this case, an alleged member of an organized crime “mafia family” was charged under the Racketeering and Corrupt Influence Organization (RICO) statute and was believed to pose a threat to governmental witnesses if released on bond.

The Court determined that there was sufficient evidence to detain the suspect prior to trial and that a “compelling interest” (i.e., public safety) warranted the defendant’s detention. However, the Court emphasized that the U.S. justice system is based on the presumption of innocence and that pretrial release should be “the norm” in most criminal cases.

🔍 Reflect

How does preventive detention balance the presumption of innocence with concerns for public safety, and what are the potential ethical and legal implications of detaining suspects without bail?

Grand Jury

An arrest by the police is not a guarantee that a suspect will go to trial. A determination of probable cause must be made, either by a judge or by a panel of citizens, depending on the jurisdiction. In the federal government and approximately half of the states, a grand jury, which typically consists of up to 23 members, is responsible for this determination. If the prosecutor convinces a majority of the grand jury that there is sufficient evidence to support the criminal allegations, the grand jury approves the indictment (Binder & Hoffman, 2019).

Critics of the grand jury system view it as a violation of due process and argue that it should be abolished. Grand jury hearings are held in private, and hearsay evidence is admissible. The defendant does not have the right to an attorney or to cross-examine witnesses. Grand jury proceedings are ex parte, meaning that the defense is not represented (Tucker, 2023).

The grand jury system originated in medieval England as a means of protecting citizens from unfounded prosecution by the Crown. However, some scholars argue that the grand jury system has evolved into a mechanism for reinforcing the prosecutorial power of the state, with little regard for defendants’ rights.

Many of the procedural protections afforded to defendants during criminal trials, such as the exclusionary rule and the right to a speedy trial, do not apply to grand jury proceedings. As a result, critics maintain that grand juries have become a “rubber stamp” for prosecutors (Rehavi & Wright, 2016).

🔍 Reflect

How does the grand jury system impact the rights of defendants, and what are the potential benefits and drawbacks of using grand juries to determine probable cause?

Preliminary Hearing

In jurisdictions where grand juries are not utilized, the grand jury proceedings are substituted with a preliminary hearing. These hearings are considered an adversarial process in most jurisdictions, where attorneys represent both the prosecution and the defense, and a judge presides over the proceedings. The purpose of the preliminary hearing is to determine whether there is enough evidence to proceed to trial. After hearing evidence from both sides, if the judge determines that probable cause exists, then the case proceeds to trial.

Preliminary hearings serve as a check on prosecutorial power, ensuring that there is sufficient evidence to support the charges against the defendant. They also provide an opportunity for the defense to challenge the prosecutor’s case, which can result in the reduction or dismissal of charges (Jung, 2019).

However, critics argue that preliminary hearings can be abused by prosecutors to harass and intimidate defendants, particularly in cases where there is weak evidence against the defendant. Additionally, preliminary hearings can be costly and time-consuming, and they may not be effective in reducing the number of cases that go to trial (Watson, 2019).

🔍 Reflect

How do preliminary hearings serve as a safeguard in the criminal justice system, and what are the potential challenges and limitations associated with this process?


Once a case has passed the probable cause determination process, it moves forward to a trial court with jurisdiction over the charged offense. At the arraignment, the judge informs the defendant of the charges filed by the prosecution and asks for a plea. The most common pleas available to criminal defendants are guilty, not guilty, and nolo contendere. The nolo contendere plea, which means “no contest,” has the same effect in a criminal trial as a guilty plea, but there is no admission of guilt that can be used against the defendant later in a civil trial. If the defendant pleads not guilty, the judge sets a trial date (Bibas & Dancig-Rosenberg, 2019).

The purpose of the arraignment is to ensure that the defendant is aware of the charges filed against them and has the opportunity to plead guilty or not guilty. In addition to entering a plea, the defendant may also have the opportunity to request a bail hearing or to negotiate a plea deal with the prosecutor (Berman, 2018).

It is important to note that the decision to plead guilty, not guilty, or nolo contendere can have significant consequences for the defendant, both in terms of the potential sentence and collateral consequences. Therefore, it is essential that defendants fully understand their legal rights and the implications of each plea option before making a decision.

🔍 Reflect

How does the arraignment process ensure that defendants are fully informed of the charges against them and their legal rights, and what are the potential consequences of the plea options available to defendants?

Pretrial Motions

Before a criminal trial begins, both the prosecution and the defense can make several motions that can affect the outcome of the trial. One of the most common pretrial motions is a motion for discovery. The process of discovery is where the prosecution must make available all of the evidence it has to the defendant. This can include physical evidence, witness statements, expert testimony, and any other materials that the prosecution intends to use at trial.

Discovery is an essential part of the pretrial process because it allows the defense to prepare its case, examine the evidence, and develop a defense strategy. The prosecutor is legally and ethically obligated to turn over any exculpatory evidence. This means that if the prosecution has any evidence that tends to prove the defendant’s innocence, then it must be turned over to the defense (Cassell, 2017).

Another common pretrial motion is a motion to suppress. This is a request by the defense to disallow illegally obtained evidence from being admitted at trial. A motion to suppress is typically filed when the defendant believes that the evidence was obtained in violation of their constitutional rights. This could include evidence obtained through an illegal search and seizure or evidence obtained through a coerced confession.

If the defense prevails in this motion, the jury will never see the evidence. In other words, a motion to suppress is an attempt by the defense to invoke the exclusionary rule, which is a legal principle that prohibits the use of illegally obtained evidence in criminal trials.

Other pretrial motions that can be filed include motions to dismiss, motions for a change of venue, and motions to sever. The defense typically files a motion to dismiss and asks the court to dismiss the charges against the defendant for a variety of reasons.  These include insufficient evidence, lack of jurisdiction, or prosecutorial misconduct.

A motion for a change of venue is a request by either the prosecution or the defense to move the trial to a different location. This is typically done in cases where it is believed that the defendant cannot receive a fair trial in the original jurisdiction due to pretrial publicity or other factors. A motion to sever is a request to separate multiple charges or defendants into separate trials.

In conclusion, pretrial motions play an essential role in the criminal justice system, as they can significantly impact the outcome of a trial. By filing pretrial motions such as discovery and suppression, defendants can have a better understanding of the prosecution’s case and ensure that their constitutional rights are protected. Additionally, by filing other pretrial motions, such as a motion to dismiss or a motion for a change of venue, defendants can increase the likelihood of a fair and impartial trial.

🔍 Reflect

How do pretrial motions, such as motions for discovery and motions to suppress, help ensure a fair trial for defendants, and what are the potential impacts of these motions on the trial process?

Juvenile Process

The juvenile justice system is quite different from the adult criminal justice system, as the juvenile process provides a great deal of discretion for each set of actors involved, including police, courts, and corrections. There are separate juvenile courts established in every state to deal with juvenile issues due to the belief that juvenile offenders are different from adults. The juvenile process follows many common rules, which are required to be followed because of constitutional rights that the Supreme Court of the United States has defined.

When a juvenile breaks the law, law enforcement may decide to turn the case over to the courts for formal proceedings rather than proceeding with an informal diversion. An assigned prosecutor or juvenile intake officer may choose to dismiss the case, handle the case informally, or file a petition, which is a formal document alleging wrongdoing by the juvenile, similar to a charging document in adult criminal court. Some jurisdictions require juveniles to appear before a judge even when no formal proceedings have begun to help the juvenile understand the seriousness of delinquency.

If the prosecutor decides to begin formal charges, a petition is filed with the court, and an arraignment is held to inform the juvenile of the charges. Some states have rules that allow older juveniles accused of serious crimes to be sent to adult court, and the most common of these waivers to adult court are for violent offenses. Once formal proceedings have begun, there are three basic options.

Juveniles can often enter into a plea agreement with the state, similar to adults. Such plea agreements usually result in the juvenile being placed on probation and required to adhere to many rules and conditions, such as counseling, curfews, and maintaining certain academic standards. Many juvenile cases are handled through a process of judicial diversion, where some informal sanction or treatment option is usually ordered, such as counseling, community service, and victim restitution. If the juvenile does not comply with the judge’s orders, formal charges can be reinstated.

The final option is for the judge to hold an adjudicatory hearing, which is the juvenile justice system’s equivalent of a criminal trial. There is generally no jury in a juvenile case, and the hearing will be conducted before a juvenile judge in most states. At the conclusion of the hearing, the judge will decide whether the allegations are true. If so, the juvenile will be adjudicated delinquent, which is commonly referred to as sustaining the petition.

In many cases, the adjudicatory hearing is a bifurcated hearing, meaning there is a separate disposition hearing, which is the juvenile court’s equivalent of a sentencing hearing in adult court. Prior to the disposition hearing, a juvenile parole officer will assess the juvenile, often with the assistance of mental health professionals. The judge designs a disposition in the case based on what is in the best interest of the child, such as counseling, probation, confinement in a secure detention facility, and victim restitution. Juveniles can also be ordered to reappear in court periodically for post-disposition hearings, which are designed to update the judge on the juvenile’s progress toward reform (Hess, Orthmann, & Cho, 2018).

🔍 Reflect

How does the juvenile justice system’s focus on rehabilitation and discretion differ from the adult criminal justice system, and what are the potential benefits and challenges of this approach for juvenile offenders?


The section discusses several key aspects of the American criminal justice system. It begins by noting that popular legal dramas on television often misrepresent the realities of criminal cases, as most cases are resolved through plea bargains rather than in court. The section then explores the right to an attorney, the decision to charge, reviewing the charge, first appearances, bail, preventive detention, and grand juries.

Notably, the section explains that despite the presumption of innocence, suspects may be held without bail when deemed a flight risk or threat to public safety. The section also highlights criticisms of the grand jury system, which some argue violates due process and serves as a “rubber stamp” for prosecutors.

The criminal justice system includes several stages, including preliminary hearings, arraignment, pretrial motions, as well as the separate juvenile process. In jurisdictions where grand juries are not used, preliminary hearings serve as an adversarial process to determine if there is enough evidence to proceed to trial. The arraignment informs the defendant of the charges and allows them to enter a plea. Pretrial motions such as discovery and suppression play a crucial role in protecting defendants’ rights and can significantly impact the outcome of a trial. 

The juvenile process is different from the adult criminal justice system, with separate courts and more discretion for the actors involved. When a juvenile breaks the law, the prosecutor may file a petition, and the juvenile may enter a plea agreement or attend an adjudicatory hearing. The judge designs a disposition based on what is in the best interest of the child, and juveniles can be ordered to reappear in court for post-disposition hearings.

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Last Updated:  07/13/2024
How to Cite This Page (APA)

McKee, A. J. (2024). Pretrial process. In Criminal justice: An overview of the system (Section 5.3). Retrieved July 18, 2024, from


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Cite This Page (APA)

McKee, A. J. (2024). Pretrial process. In Criminal justice: An overview of the system (Section 5.3). Retrieved July 18, 2024, from

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