Criminal Justice | Section 5.3: Pretrial Process

Criminal Justice: An Overview of the System by Adam J. McKee

Section 5.3: Pretrial Process

Television legal dramas have trained the American people to understand that all of the important legal maneuverings in a criminal case take place in a courtroom in front of a judge and jury. This conception can safely be included among the myths of criminal justice. Consider that over 90% of criminal charges result in a guilty plea and never go to trial. Most of these are the result of a plea bargain agreement hammered out between the prosecution (the state) and the defense. The fact is that many important legal steps are taken prior to trial. These steps make for a functional criminal justice system but are not good drama, so they never get the spotlight on television.

The Right to an Attorney

Counsel, either hired by the defendant or appointed by the court, represents almost every criminal defendant in both state and federal courts. Defendants representing themselves are far more common with misdemeanors. There is a common belief that appointed lawyers do not do as good a job defending their clients as do privately hired attorneys. In a report issued by the Bureau of Justice Statistics (Harlow, 2002), it was found that there was very little difference between how counsel was obtained on the verdict of guilty. However, it was also found that among those receiving a guilty verdict, a higher percentage of defendants with appointed counsel were sentenced to incarceration. The BJS study also found that the rate of entering a guilty plea was higher with appointed counsel. About 75% of inmates with appointed counsel pleaded guilty, while around 66% of those with hired counsel pleaded guilty.

The responsibility for appointing counsel in federal criminal proceedings for those unable to bear the cost of representation has historically rested in the federal judiciary. Before the enactment of the Criminal Justice Act (CJA), however, there was no authority to compensate appointed counsel for their services or litigation expenses, and federal judges depended on the professional obligation of lawyers to provide pro bono publico representation to defendants unable to retain counsel (Courts, 2015).

In 1964, the CJA was enacted to establish a comprehensive system for appointing and compensating lawyers to represent defendants financially unable to retain counsel in federal criminal proceedings. The CJA authorized reimbursement of reasonable out-of-pocket expenses and payment of expert and investigative services necessary for an adequate defense. While it provided for some compensation for appointed counsel (CJA panel attorneys), it did so at rates substantially below that which they would receive from their privately-retained clients.

In 1970, the CJA was amended to authorize districts to establish federal defender organizations as counterparts to federal prosecutors in U.S. Attorneys Offices and an institutional resource for providing defense counsel in those districts (or combinations of adjacent districts) where at least 200 persons annually require the appointment of counsel.

According to the Administrative Office of the United States Courts, there are now 81 authorized federal defender organizations. They employ more than 3,100 lawyers, investigators, paralegals, and support personnel and serve 91 of the 94 federal judicial districts. There are two types of federal defender organizations: federal public defender organizations and community defender organizations.

Federal defender organizations, together with the more than 10,000 private “panel attorneys” who accept CJA assignments annually, represent the vast majority of individuals who are prosecuted in our nation’s federal courts. CJA panel attorneys accept appointments in all CJA cases in the four districts not served by a federal defender organization. In those districts with a defender organization, panel attorneys are typically assigned between 30 percent and 40 percent of the CJA cases, generally those where a conflict of interest or some other factor precludes federal defender representation. Nationwide, federal defenders receive approximately 60 percent of CJA appointments, and the remaining 40 percent are assigned to the CJA panel.

The Decision to Charge

The police may be the gatekeepers of the criminal justice system, but ultimately the decision to prosecute the suspect is up to the prosecutor. Recall that all criminal prosecutions are brought forward by the government, and the prosecutor is the government’s lawyer. If the prosecutor decides to move forward with a case, a charging document is filed with the court. A charging document formally accuses the suspect of committing a crime. There are two basic types of charging document: An information originates with the prosecutor, and an indictment originates with a grand jury. While these documents differ in many respects, they both contain a formal statement of the charge against the suspect.

Reviewing the Charge

Before criminal cases can move forward to trial, there must be a judicial determination that such a move is justified by the evidence. Often, a lower court judge rather than a judge with jurisdiction in a felony case make this determination. As with many criminal justice tasks, the standard of proof here is probable cause.

First Appearance

Several important functions are served by a first appearance. Defendants are informed of the nature of the charges against them. Defendants have their constitutional rights explained to them. If the defendant is indigent (too poor to afford a lawyer), counsel is appointed. The judge also determines if bail will be granted, and if so, how much.


Conventionally, bail entailed money or other valuable property that defendants deposit with the court in order to ensure their appearance in court if they are released prior to trial. If the defendant failed to appear at trial, the money or property was forfeited to the court. Often, courts do not require a cash bail. They release the defendant on a mere personal promise to appear. In other words, they are released on their own recognizance. This is often shortened to release on recognizance (ROR). Not all criminal defendants are granted bail. Recall that the Constitution prohibits excessive bail, but does not guarantee bail in general. The Supreme Court has determined that when criminal defendants are a flight risk or that they are a danger to the community, then they can be held in jail to await trial. Still, others wait on their trial date in jail because they cannot afford bail.

According to the Bureau of Justice Statistics (2007), 62% of felony defendants in State courts in the 75 largest counties were released prior to the disposition of their case. Many critics argue that the current bail system, with an increasing reliance on commercial bail bonding, discriminates against the poor. As one would suspect, the higher the bail, the fewer defendants are released. About 7 in 10 defendants secured release when bail was set at less than $5,000, but this proportion dropped to 1 in 10 when bail was set at $100,000 or more (Cohen & Reaves, 2007).

Perhaps the most important criterion for setting bail is the seriousness of the offense. Those charged with murder are the least likely to receive bail, followed by other serious crimes such as rape, robbery, and burglary. Those charged with less serious offenses and white-collar offenses (e.g., fraud) are the most likely to be released on bail. Another reason that so many defendants do not stay out of jail pending trial is the commission of new offenses. Approximately a third of released defendants were charged with one or more types of pretrial misconduct, and nearly a fourth had a bench warrant issued for failing to appear in court. About a sixth were arrested for a new offense, with more than half of those new arrests were for felonies (Cohen & Reaves, 2007).

Preventive Detention

As a rule, suspects are innocent until proven guilty and are deserving of bail. This is based not on an explicit statement of the right in the Bill of Rights, but was established by the Court in the landmark case of Coffin v. U.S. (1895). This U.S. Supreme Court case clearly defined the principle of the presumption of innocence for the first time in U.S. history. Although believed to be inferred from the U.S. Constitution, no direct recognition of this presumption had been previously articulated. The significance of this case is that it places the burden of “proof beyond a reasonable doubt” on the prosecution in criminal proceedings. In reference to setting bail, all defendants are to be presumed innocent prior to adjudication and thus, not subject to criminal penalties prior to trial.

Many states and the Federal government have statutes that allow judges to deny bail in circumstances where the defendant is a high flight risk. The Bail Reform Act (1984) gives federal judges the authority to hold suspects without bail when they are deemed a treat to the public safety. Many civil libertarians argue that this is unconstitutional since it goes against the presumption of innocence.

In U.S. v. Salerno (1987), the U.S. Supreme Court upheld the constitutionality of the Bail Reform Act of 1984. This case consisted of an alleged member of an organized crime “mafia family” charged under the Racketeering and Corrupt Influence Organization (RICO) statute who was believed to pose a threat to governmental witnesses if released on bond. The challenge was based on the provisions of the Fifth and Eighth Amendments to the U.S. Constitution. The Court held that sufficient evidence was present to detain the subject prior to trial and that a “compelling interest” (i.e., public safety) aside from the risk of nonappearance was presented to warrant the defendant’s detention. However, the Court cautioned the judiciary and pretrial services agencies by noting that the United States’ system of justice is based on the presumption of innocence and that pretrial release should be “the norm” in the vast majority of criminal cases.

Grand Jury

An arrest by the police is by no means a guarantee that a suspect will go to trial. As previously discussed, a probable cause determination must be made. In some jurisdictions, this determination is made by a judge, but in others, the decision is made by a panel of citizens. The federal government, along with about half the states, has such a panel of citizens that is known as a grand jury. The size of the grand jury varies from jurisdiction to jurisdiction, but they are generally larger than trial (petit) juries, consisting of up to 23 members. In cases where the prosecutor convinces a majority of the grand jury that there is probable cause to support the criminal allegations, the grand jury approves the indictment.

Critics of the grand jury system seem them as antithetical to due process and believe that they should be abolished altogether. Grand jury hearings are held in private, and hearsay evidence is admissible. There is no right of the defendant to have an attorney present at the hearing, and no right to cross-examine witnesses offering testimony against the accused. Grand jury hearings are known as ex parte proceedings because the defense is not represented.

The grand jury has its origins in antiquity when citizens needed protection from potentially overzealous prosecution by the Crown. The system began as a protection of civil rights, but now, critics argue, it has become a tool of oppression by the government because the rules so favor the prosecution. Many of the procedural safeguards that are present at criminal trials are not present at grand jury proceedings, such as the exclusionary rule. They argue that because the proceedings are so one-sided, they are nothing more than a rubber stamp for the prosecutor.

Preliminary Hearing

In jurisdictions where grand juries are not used, the grand jury proceedings are replaced by a preliminary hearing. In most jurisdictions, attorneys from both sides are present, and a judge presides. For this reason, preliminary hearings are considered an adversarial process. If, after hearing evidence from both sides, the judge determines that probable cause does exist, then he or she sends the case forward to trial.


If a case moves past the probable cause determination process, it will move forward to a trial court that has jurisdiction over the offense charged. At an arraignment, the judge informs the defendant of the charges alleged by the prosecution and asks for a plea from the defendant. The most common pleas available to criminal defendants are guiltynot guilty, and nolo contendere. The nolo contendere plea, meaning “no contest”, has the same effect in a criminal trial as a guilty plea, but there is no admission of guilt that can be used against the defendant later in a civil trial. If the defendant pleads not guilty, then the judge sets a trial date.

Pretrial Motions

Before the actual trial begins, both the prosecution and the defense can make several motions. One of the most common pretrial motions is a motion for discovery. Discovery is where the prosecution must make available all of the evidence it has to the defendant. The prosecutor is legally and ethically obligated to turn over any exculpatory evidence. In other words, if the prosecution has any evidence that tends to prove the defendant’s innocence, then it must be turned over to the defense. Also common are motions to suppress. A motion to suppress is a request by the defense to disallow illegally obtained evidence from being admitted at trial. If the defense prevails in this motion, the jury will never see the evidence. In other words, a motion to suppress is an attempt by the defense to invoke the exclusionary rule.

Juvenile Process

When a juvenile breaks a criminal law, the process that is followed by the legal system is quite different from the adult criminal justice system’s process. The idea that juvenile offenders are different from adults is so fundamental to the American philosophy of justice that separate courts have been established in every state to deal with juvenile issues. A key difference between the juvenile process and the adult process is the enormous amount of discretion that each set of actors-police, courts, and corrections-has in a juvenile case. While the precise process of dealing with juvenile cases varies from jurisdiction to jurisdiction, there are many common rules that must be followed because of constitutional rights that have been defined by the Supreme Court of the United States.

Once law enforcement has decided to turn a case over to the courts (rather than proceeding with an informal diversion), a prosecutor or juvenile intake officer (often a juvenile probation officer) is assigned to the case. The intake officer may choose to dismiss the case, handle the case informally, or file a petition. The petition is a formal document alleging wrongdoing by the juvenile, similar to a charging document (information or indictment) in adult criminal court. Depending on the rules of the particular jurisdiction, some juveniles must appear before a judge even though no formal proceedings are begun. These informal appearances before the bench are calculated to help the juvenile understand the seriousness of delinquency.

If the prosecutor decides to begin formal charges, a petition is filed with the court. An arraignment is held, and the juvenile is informed of the charges. Many states have rules that allow older juveniles accused of serious crimes to be sent to adult court. The most common of these waivers to adult court are for violent offenses.

Once formal proceedings have begun, there are three basic options. Like adults, juveniles can often enter into a plea agreement with the state. Such plea agreements usually result in the juvenile being placed on probation and being required to adhere to many rules and conditions. Counseling, curfews, and maintaining certain academic standards are common requirements.

Many juvenile cases are handled through a process of judicial diversion. When a juvenile judge diverts a case, some informal sanction or treatment option is usually ordered. Counseling, community service, and victim restitution are often ordered. If the juvenile does not comply with the judge’s orders, formal charges can be reinstated.

The final option is for the judge to hold an adjudicatory hearing. This is the juvenile justice system’s equivalent of a criminal trial. In most states, the hearing will be conducted before a juvenile judge, but there is generally no jury in a juvenile case. At the conclusion of the hearing, the judge will decide whether the allegations are true. If so, the juvenile will be adjudicated delinquent. This result is commonly referred to as sustaining the petition.

In many cases, the adjudicatory hearing is bifurcated. This means that there is a separate disposition hearing, which is the juvenile court’s equivalent of a sentencing hearing in adult court. Prior to the disposition hearing, a juvenile parole officer will thoroughly assess the juvenile, often with the assistance of mental health professionals. The judge designs a disposition in the case based (at least theoretically) on what is in the best interest of the child. Counseling, probation, confinement in a secure detention facility and victim restitution are common in juvenile dispositions. Juveniles can also be ordered to reappear in court periodically for post-disposition hearings. These hearings are designed to update the judge on the juvenile’s progress toward reform.

Key Terms

Adjudicated Delinquent, Adjudicatory Hearing, Bail Reform Act (1984), Bifurcated HearingCoffin v. U.S. (1895), Community Defender Organization, Criminal Justice Act (CJA), Discovery, Disposition, Disposition Hearing, Ex Parte, Exculpatory Evidence, Federal Public Defender, Guilty Plea, Judicial Diversion, Motion to Suppress, Nolo Contendere Plea, Not Guilty Plea, Petition, Post-disposition Hearing, Pretrial MotionsPro Bono Publico, Racketeering and Corrupt Influence Organization (RICO), Release on Recognizance (ROR), Sustaining the PetitionU.S. v. Salerno (1987)

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Last Updated:  6/04/2021
APA Citation

McKee, A. J.  (2015).  Criminal Justice: An Overview of the System.  Booklocker.

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