Pretrial Hearings and Motions

A criminal defendant then enters a plea, which is an answer to the charges. Typically, the accused either pleads not guilty or no contest. A guilty plea at this stage would end the pretrial phase and move it to sentencing because the defendant has admitted to being criminally liable.

In the criminal justice system, a case is often decided before the actual trial date. Prosecutors and defense attorneys can file motions that shape the outcome of the proceedings. Often, the outcome of a case hinges on the results of these motions and the hearings that go with them.

This section discusses different types of pretrial motions and hearings that can occur during a criminal prosecution.

Criminal Charges

There are several ways the state brings criminal charges. For relatively minor charges, a police officer can issue a citation or ticket. Citations are only issued for minor infractions not punishable by prison. You can avoid going to court by paying the ticket. But paying the ticket amounts to pleading guilty.

In serious felony cases, criminal charges come from either an "indictment" or "information." Here, a prosecutor reviews the evidence gathered by the police and submits it to a grand jury to determine if there is sufficient evidence to warrant a 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 the prosecution's case.

The other method of filing charges includes filing a criminal complaint, also known as the "information." Here, the prosecutor files a document with the court alleging the specific crimes against the accused and a brief summary of the facts indicating the defendant's guilt.

Arraignment Hearing

After law enforcement places someone under arrest, they go through the booking and bail hearing process. The arraignment hearing is often combined with the bail hearing. Here, the accused learns about the charges against them. A judge will ask whether the defendant has a criminal defense attorney or needs a court-appointed one.

Next, the judge will explain the defendant's rights, including their constitutional right to a speedy trial. The parties will set a schedule for pretrial motions and select a court date for the jury trial itself.

Pretrial Conferences and Discovery

Discovery takes place in both civil and criminal trials. Before a trial, both sides must exchange information about the facts of the case. Document production requests are demands between the parties to produce certain documents.

In criminal cases, the prosecution must provide documents relevant to the case, such as police reports and forensic reports like DNA testing results, even if the defense doesn't make a specific request for it.

The prosecution must always disclose exculpatory evidence. This is favorable evidence that can exonerate the defendant.

Decisions made during the discovery phase of a pretrial can seriously affect the case outcome. In some cases, it can determine whether a trial is even necessary. So, states mandate parties make certain disclosures.

Common examples of mandatory disclosures include:

  • Whether a party intends to introduce an expert witness, e.g., a blood splatter expert
  • Whether the defense plans to raise certain unusual defenses, e.g., an insanity defense
  • Summaries of statements made by a witness who will testify at trial
  • Witness lists and evidence parties intend to submit at trial

The Sixth Amendment guarantees the accused a right to confront witnesses. This allows defendants to cross-examine witnesses who testify against them to try to discredit them.

Witnesses in civil cases generally submit to questioning under oath in "depositions" or in written "interrogatories." So, depositions are rare in criminal trials.

Depositions are only allowed in exceptional circumstances to preserve witness testimony. For example, suppose a witness is in poor health and is terminally ill. In that case, the court will likely allow a deposition to record their testimony before they die.

Preliminary Hearing

Before trial, the district court must determine if the prosecution has enough evidence to proceed to a jury trial. This is the purpose of a preliminary hearing, also known as a probable cause hearing. An experienced criminal defense attorney will review the evidence provided during discovery and challenge its sufficiency and constitutionality.

The Fourth Amendment guarantees the right against unreasonable searches and seizures. So, a search warrant based on probable cause is typically required before the police can search your home.

If the police enter and search your home with an invalid warrant, the court must exclude any evidence collected. Evidentiary issues can result in the dismissal of charges if the court finds no probable cause.

Common Pre-Trial Motions

Pretrial motions take place after the preliminary hearing and before trial. There may be many pretrial motions in a single case. Either party may file relevant pretrial motions. Pretrial defense motions typically seek to exclude improperly acquired evidence and address legal and procedural questions more commonly than factual ones.

Common pretrial motions include:

  • Motion to dismiss
  • Motion to suppress evidence
  • Motion in limine
  • Motion for change of venue

The outcome of these motions helps determine what evidence the parties submit at trial, what legal arguments are likely to be made, and whether a trial is even necessary.

Get Legal Help with Your Pretrial Hearings and Motions

A criminal charge does not have to result in a conviction. Meeting with a criminal defense lawyer can help you understand your options. A lawyer can negotiate a plea agreement or investigate constitutional rights violations to get your case dismissed. Visit our lawyer directory to find legal help near you.

Was this helpful?

Can I Solve This on My Own or Do I Need an Attorney?

  • Complex criminal defense situations usually require a lawyer
  • Defense attorneys can help protect your rights
  • A lawyer can seek to reduce or eliminate criminal penalties

Get tailored advice and ask your legal questions. Many attorneys offer free consultations.


If you need an attorney, find one right now.