Chapter Five

Benji

After an arrest and booking, there are several stages to go through before we even get to see the inside of a courtroom.

Arrest, booking, bail, pretrial hearings, and motions including arraignment, preliminary hearing of potential plea bargains, and a thorough review of them. Once we've navigated through this process, we move on to the criminal trial, evidence, and sentencing. But sentencing isn't the final step. There's still the option for a criminal appeal.

So here we are, at the start of the journey. My clients have made it through the arrest and booking process, and now we're stepping into the pretrial circus.

In the criminal justice system, a case is often decided before the actual trial. Prosecutors and defense attorneys can file a number of pre-trial motions that exclude evidence or otherwise shape the proceedings. Many times, the outcome of a case hinges on the results of these motions and the hearings that accompany them.

A preliminary hearing takes place after arrest, booking, and a bail hearing. At the preliminary hearing, the charges against the accused are read. The accused is asked if they have an attorney or need one appointed by the court. They then respond to the charges and enter a plea of 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.

The preliminary hearing was set this morning and I was able to attend on behalf of all four of them as their legal counsel and assigned representative.

The ADA couldn't provide any further information leading to any question as to why the bail should be revisited, so I was satisfied that all four of them wouldn't need to increase bail or be remanded in custody.

The ADA was slightly annoyed when the judge withheld evidence to be used under the hearsay exemption of Excited Utterance, so she sought an adjournment to next week for Pre-Trial motions.

Upon leaving the court, I discussed it further with the ADA who advised she had been instructed by her boss that if the hearsay exemption was thrown out, the charges would be reviewed and amended to Kidnapping and persons of interest in the disappearance of, rather than Murder.

No skin off my back really, I was ready to fight them either way on this.

So next Wednesday, the pre-trial motions are set to take place. Pretrial motions take place after the preliminary hearing and before trial. There may be many pretrial motions in a single case and either side may make pretrial 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. Pretrial defense motions typically seek to exclude evidence that was improperly acquired and address legal and procedural questions more commonly than factual questions. Arguments that certain evidence should be kept out of the trial, that certain persons must or cannot testify, or that the case should be dismissed altogether.

Pretrial motions are tools used by the Prosecution and Defense in an effort to set the boundaries for trial, should one take place. What physical evidence and testimony can be used? What legal arguments can and cannot be made? Is there any reason that the defendant should not be forced to stand trial?

So this brings me to preparation for next Wednesday's hearing.

The importance of the pretrial motion depends on the kind of case, the severity of the charges, the strength of the prosecution's case, and other factors. A successful pretrial motion can profoundly change the course of a trial if used effectively.

Some of the most common such motions include -

Summary Judgment – The facts of the case are not in dispute, so the court orders a judgment without a full trial.

Motion to Dismiss – The case should be dismissed because of lack of jurisdiction, lack of evidence, settlement before trial, or other reasons.

Exclusion of Physical Evidence – Evidence may have been obtained illegally or beyond the scope of a search warrant.

Exclusion of Witness Testimony – There could be a conflict of interests, the witness could be unreliable, lack competency etc.

Motion to Change Venue – This may be awarded in cases, particularly those that are heavily publicized, where the jury pool may be prejudiced against the defendant.

Motion for the release of evidence – There may be evidence being held by the prosecution that is materially important to the defense.

While specific possibilities are endless, the easiest to fight is normally Exclusionary Rule. Designed to deter police misconduct, the exclusionary rule enables court to exclude incriminating evidence from being introduced at trial upon proof that the evidence was procured in violation of a constitutional provision.

The rule allows defendants to challenge the admissibility of evidence by bringing a pretrial motion to suppress the evidence.

Which pretrial motions will be most effective depends entirely on the facts of the case and the applicable law. And that is where I come in.

I have just finished explaining all this to my clients and getting them to sign the relevant documents when Stephen speaks up.

Stephen asks, “How so?”

I reply, “Because now I can file pretrial motions as your Criminal Defense Attorney.”