What Is A Misdemeanor Pretrial Hearing? What Happens at One?

Posted on July 30, 2019

A pretrial hearing is a formal court hearing that takes place after the arraignment. Most misdemeanor cases will have several pretrial hearings. These hearings give an accused the opportunity to:

• deal with issues like illegal searches,
• address speedy trial rights,
• conduct defense investigation,
• obtain, test, and evaluate evidence,
• engage in plea bargaining.

There are various motions that can be filed at the pretrial hearing stage. Common examples are:

• bail hearings to set or lower bail,
• suppression motions (to throw out illegally seized evidence),
• change of venue motions,
• evidence production or discovery motions,
• speedy trial motions.

Pretrial discovery is the exchange of evidence between the prosecutor and the defense. Discovery exchanges take place at pretrial hearings.

Plea bargaining involves the prosecutor and defense attorney and takes place at pretrial hearings. Plea bargaining includes charge bargaining and sentence bargaining.

In general, pretrial hearings give both sides the chance to see how strong or weak a case is. If a case is weak the prosecutor will want to settle it. If a case is strong the accused will probably want to obtain the least possible punishment.

Please note that someone accused of a crime has the right to a speedy trial. This right is often waived to allow time for pretrial hearings.

What Happens at a Pretrial Hearing?

One of the first things defense attorneys do is plan and file pretrial motions. Good pretrial motions attack and weaken a prosecutor’s case. A successful pretrial motion can help the accused to:

• get charges dismissed,
• expose a weak case,
• make a record so an issue can be raised at trial.

Pretrial motions try to:

• limit or throw out illegally seized evidence (suppression motions),
• challenge illegal arrests and detentions,
• seek a change of venue,
• demand the production of evidence,
• assert a speedy trial violation.

The accused receives a copy of the complaint and police report at the arraignment. In many cases there will be additional evidence such as blood test results, accident reports, and medical records. A prosecutor must provide all relevant discovery to the accused. This production process is called pretrial discovery and includes:

• the names and addresses of witnesses,
• real evidence seized or obtained,
• evidence that helps the accused (exculpatory evidence),
• statements or reports from witnesses,
• expert reports and information.

The accused must likewise provide relevant discovery to the prosecutor. If the two sides disagree about whether something is relevant there must be a hearing.

Plea bargaining also takes place at pretrial hearings. Each year in California about 800,000 non-traffic misdemeanors are filed. 99% of those cases settle without going to jury trial. https://www.courts.ca.gov/documents/2018-Court-Statistics-Report.pdf

Plea bargaining involves charge bargaining and sentence bargaining. In charge bargaining the prosecutor agrees to dismiss or reduce charges in exchange for a guilty plea. In sentence bargaining the sentence is negotiated.

Throughout the pretrial process the defense attorney evaluates the odds of succeeding at trial. Some of the things a defense attorney will consider when advising a client are:

• the strengths and weaknesses of the case,
• the client’s guilt or innocence,
• the maximum sentence or punishment that could result,
• the client’s ability to withstand hard questioning,
• the credibility of the client,
• other possible consequences. (For example, immigration or licensing issues)

The ultimate decision about whether to go to trial is made by the accused.

Please note that the judge can limit the number of pretrial hearings. One way to do that is to order that a trial date be set. Continuances may still be granted but only for “good cause.” (See Penal Code 1050 PC)

Is a Pretrial Hearing Different than a Motion Hearing?

Pretrial hearings and motion hearings both occur prior to trial. Motion hearings, however, address specific issues. These could include:

• setting or reducing bail,
• suppression motions to limit or throw out evidence,
• change of venue motions,
• discovery hearings concerning evidence,
• speedy trial motions.

Does a Defendant Have to Appear at the Pretrial Hearings?

In felony cases the defendant must be present at all hearings. In most misdemeanor cases an attorney can appear for the accused. If the charges involve domestic violence the accused must be present for sentencing. In some driving under the influence cases the accused may have to be present.

Some courts accept notarized pleas in misdemeanor cases. If they do the defendant does not have to be present. An experienced attorney will know the pleading procedures at a specific courthouse.

Will the Victim be Present at the Pretrial Hearing?

Pretrial hearings are generally open to the public and anyone can attend. In California, crime victims have rights under the Victims’ Bill of Rights. A victim has the right to be notified if a prosecutor is going to settle a case. A notification request should be made to the prosecutor handling the case.

For further information about pretrial hearings, please see:

“The Pretrial Process Under California Law” at https://www.shouselaw.com/pretrial.html.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.