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Pre-trial Court Appearances in a Criminal Case

It’s especially difficult to generalize about this subject, since so much depends on a particular state’s procedures, whether it typically uses a grand jury to bring charges, etc. Here’s the procedure used with some variations in many states in which a prosecutor files charges without a grand jury.

Misdemeanors
The first step is an initial appearance (often referred to as an arraignment), before a judge of a lower court or magistrate, at which

  • The charge is read to the defendant, and penalties explained.
  • The defendant is advised of his/her right to trial, and right to trial by jury if desired.
  • The right to counsel (legal representation) is explained, and the judge or magistrate appoints a lawyer if the defendant requests one and is found to be indigent (too poor to afford a private lawyer).
  • The defendant enters a plea. If counsel has been requested and appointed, or if the defendant indicates that private counsel will be retained, a plea of not guilty is entered. If the defendant enters a not guilty plea, a trial date will be set. If the defendant pleads guilty, either a date will be set for sentencing or the magistrate or judge will impose probation, fines or other sentences immediately. In some cases, the judge or magistrate may allow a defendant to plead nolo contendere , or no contest. In many jurisdictions a plea of no contest is equivalent to a guilty plea, except that the defendant does not directly admit guilt.
  • Assuming the defendant has pled not guilty, the judge or magistrate sets the amount of bail.

Felonies
The process is quite similar here, except that there is the additional step of the preliminary hearing as an additional safeguard warranted by the more serious nature of the charges.

Step 1

As with misdemeanors, the first step is an initial appearance or an arraignment before a judge of a lower court or magistrate, at which

  • The charge is read to the defendant, and penalties explained.
  • The defendant is advised of his/her right to a preliminary hearing and the purpose of that procedure, as well as his/her right to trial and right to trial by jury in trial court.
  • The right to counsel (legal representation) is explained, and the judge or magistrate appoints a lawyer if the defendant requests one and is found to be indigent (too poor to afford a private lawyer).
  • The defendant does NOT enter a plea. The matter is set for preliminary hearing (hearing to establish if a crime has been committed and if there is probable cause to believe that the defendant committed the offense(s) alleged in complaint).The judge or magistrate sets the amount of bail.

Step 2

The second step is the preliminary hearing, at which:

  • The government must demonstrate to a judge or magistrate that there is sufficient evidence, or probable cause, to believe the suspect committed the crime with which he or she is charged.
  • Defendants usually must be present at this hearing, although they do not commonly offer evidence in their defense. This procedure has a similar function to grand jury proceedings, in that it is a safeguard against unfettered government action.
  • If the court finds there is no probable cause, the matter is dismissed (this would be the equivalent of a grand jury declining to press charges). If this happens, defendants are released.
  • If the court finds there is probable cause, the matter is transferred to trial court. Many courts use the term bound over, as “the defendant is bound over to the district or circuit court for trial.”