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A felony pretrial hearing is a meeting in court involving the defendant, the criminal defense lawyer, the prosecutor, and the judge. The hearing takes place after the preliminary hearing, but before the jury trial. Sometimes the court holds several pretrial hearings before the case is set for jury trial.
The following five things often take place at pretrial hearings:
administrative issues get resolved,
pretrial motions are filed and ruled upon,
potential plea agreements and plea bargains are raised and considered,
facts and information (called discovery) get shared between the judge and the lawyers, and
the judge establishes certain rules for trial.
A felony pretrial hearing is not the same proceeding as a preliminary hearing in a felony case.
The latter is similar to a mini-trial that is conducted a few weeks after your arraignment, or when you initially appear in court for a felony criminal charge (as opposed to a misdemeanor). The purpose of the herring is for a judge to determine:
whether a crime has been committed in your case, and
whether there is “probable cause” to believe you committed it.
1. What takes place during a pretrial hearing in felony cases?
In the criminal court process, pretrial hearings are often referred to as “pre-trial conferences.” The most important things that take place during these conferences include:
administrative issues get handled: Administrative matters may include setting the specific trial date and specifying other necessary court dates/court appearances. The judge normally settles administrative issues so that the criminal trial can run more efficiently.
lawyers file and argue pretrial motions: These motions often try to suppress evidence (or exclude physical evidence that law enforcement may have illegally obtained), change venue (or location of the trial), and address speedy trial concerns.1
plea agreements are discussed: Prosecutors and defendants often evaluate their odds of succeeding at trial throughout the pretrial process. One of these sides may want to enter into a plea deal if they believe there is insufficient evidence or not enough evidence for them to perform well at trial.
facts and evidence get shared: Pretrial discovery is the exchange of facts and evidence between the prosecutor and defense attorney prior to trial. The attorneys engage in this practice during a pretrial conference to help organize a prosecution’s case and a possible defense strategy.
The judge sets certain rules for trial: A judge may often set certain rules to help a trial run more efficiently and in the best interests of fairness. For example, rules may address what happens during opening statements, closing arguments, and cross-examination.
2. Does a defendant have to appear?
Most often, yes. Most states say that you must be present at all court dates in felony cases, including pretrial hearings.2
In contrast, your attorney can often appear on your behalf in most misdemeanor cases.
3. Is a pretrial conference the same thing as a preliminary hearing?
No. A preliminary hearing is a separate court hearing that is held before a trial in a felony criminal court proceeding.
A preliminary hearing is where a judge examines the evidence in a case to determine:
whether a crime was committed, and
whether there is probable cause to believe you committed it.
If the judge finds that there is probable cause to believe you committed the felony, the case proceeds through the criminal court process and advances towards a trial date.3 The result could be a:
Prior to the judge making an official ruling, the following occurs:
the prosecutor presents evidence to show that you committed the felony charged, and
your attorney rebuts the prosecutor’s evidence and/or introduces other evidence to show you did not commit the crime charged.
Note that a pretrial hearing usually takes place within a few weeks of when a defendant is arraigned. The specific timing of the court date depends largely on whether you are held in jail or were released on bail or on your own recognizance.
All defendants are encouraged to contact an experienced criminal defense attorney or law firm before a preliminary hearing or pretrial conference. Most attorneys provide free consultations, which means you can get your legal questions answered at no cost.
As to speedy trial motions, note that most states have criminal laws that require a trial court to begin a trial within a set time after a criminal defendant is arraigned. See, for example, California Penal Code 1382 PC.
Note that if a judge finds probable cause, the finding may still be challenged by a defense motion to set aside the information. See, for example, California Penal Code 995 PC.
About the Author
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, 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.