§ 3.03 Pretrial Stages: Criminal Cases
| Jurisdiction | United States |
[A] Charging Instruments
Criminal cases may commence with the filing of a complaint or an arrest, which is then followed by a complaint.44 (As discussed below, the process may also start with a grand jury indictment.) Once there is an arrest, the arrestee must be brought before a judge or magistrate. This procedure, known as the initial appearance in federal practice and the "arraignment" in many states,45 serves several purposes. First, the judge must inform the defendant of the charges. The second objective is to explain to the defendant various rights, including the right to remain silent. The accused is also informed of the right to counsel and to a reasonable continuance to retain an attorney or to the appointment of one if the accused is indigent.46 In addition, an accused charged with a felony is informed of the right to a preliminary hearing, except if the appearance is pursuant to an indictment. Third, the court must set bail if the defendant is charged with a bailable offense.47 A fourth objective arises in misdemeanor cases, where the defendant is required to enter a plea.
Unlike civil practice, there is no "answer" in criminal practice. There are only pleas.48Consequently, if a defendant wishes to remove an issue from trial, it must be done by stipulation, which the prosecution is generally not obligated to accept.49
[B] Preliminary Hearing
The next step in the process is the preliminary hearing,50 which is a filtering device, much the same as the grand jury is a screening device, designed to insure that persons are not made to stand trial for a felony in the absence of "probable cause." Unlike the initial appearance, the preliminary hearing is an adversarial proceeding. In Coleman v. Alabama,51 the Supreme Court held that an indigent defendant has a Sixth Amendment right to appointed counsel at a preliminary hearing. The Court concluded that the preliminary hearing is a "critical stage" in the criminal process and that the presence of counsel at the hearing was "necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself."52
The defendant also has the right to present evidence. Unless there is some compelling reason, it is inadvisable to produce defense evidence at the hearing. The defense cannot really "win" at the preliminary hearing. All the prosecutor needs to show is probable cause. Even if the magistrate dismisses the charge, the prosecution can still seek a grand jury indictment, or come back with more evidence, or try a different magistrate. The defense's goal at the preliminary hearing is discovery—to learn as much as possible about the prosecution's case.
The Federal Rules of Evidence do not apply at the preliminary hearing.53 Since hearsay is admissible at the hearing, the real witnesses may not even testify; instead, a detective may set forth the government's case. If eyewitnesses testify, the defense faces a dilemma. On one hand, a searching cross-examination may give away the defense's strategy and prepare the witness for trial. On the other hand, the unchallenged preliminary hearing testimony is admissable at trial if the witness is unavailable at that time. Admissibility would be based on the former testimony exception to the hearsay rule, Rule 804(b)(1).
Trial uses. Preliminary hearing testimony may be used at a subsequent trial in several ways. The transcript may be used to refresh a witness's memory.54 If the defendant testifies at the preliminary hearing, that testimony is admissible against the defendant at trial as a party admission.55 Therefore, the defendant should not testify in the absence of exceptional circumstances.56 The transcript may also be used to impeach a witness whose preliminary hearing testimony is inconsistent with her trial testimony.57
The most common use of preliminary hearing testimony involves the hearsay exception for former testimony.58 The admissibility of former testimony raises Sixth Amendment right of confrontation concerns.59
[C] Grand Jury
The Fifth Amendment provides that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury."60 However, the Grand Jury Clause does not apply to the states.61 Consequently, state law governs indictment issues. Approximately two-t hirds of the states do not require a grand jury indictment for felonies. The rules of evidence are generally inapplicable to grand jury proceedings.62
Functions of grand jury. The grand jury has two very distinct functions: to charge and to investigate. The charging or screening role of the grand jury is the more common function in state practice.63 In its investigative role, the grand jury serves as a law enforcement tool to help the prosecution gather evidence.64 To carry out this investigative function, grand juries have the power to (1) compel the attendance of witnesses through the issuance of subpoenas ad testificandum, (2) require the production of evidence through subpoenas duces tecum, and (3) obtain testimony through an offer of immunity.
Presence at hearing. Although the court controls many aspects of grand jury procedure,65 the judge is not present at the hearing itself.66 The prosecutor presents the evidence before the grand jury. The power of the prosecutor is significant not only because the prosecutor is the only party permitted to present evidence, but also because the prosecutor exercises significant control over the entire indictment process, even though the grand jury makes the ultimate decision. In contrast to a preliminary hearing, grand jury proceedings are nonadversarial. The prosecutor, the witnesses, and the grand jurors are present, but suspects and targets have no right to attend the proceedings, offer evidence, or testify in most jurisdictions.67 Because of the extensive prosecution control over the...
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