What Happens Before the Trial?

Once a defendant is released "on bail" or "on his own recognizance," one or more court dates are set for preliminary hearings, motion practice and trial. Most cases are assigned to a particular prosecutor. A lawyer can assist a defendant in speaking with the prosecutor to work out an agreement known as a plea agreement. In a plea agreement, the defendant agrees to "plead guilty" — i.e. swear on the record that he committed some crime. In return, the prosecution may reduce the charges or agree to a lower sentence. Once a person pleads guilty, it is very difficult to "un-do" or vacate the guilty plea. Therefore, anyone even considering a guilty plea should consult with a lawyer that he or she trusts before going through with the plea.

If no agreement can be worked out, the prosecutor may seek an "indictment" — a formal charge brought in more serious cases — and the lawyer and client may decide to go to trial.

If the defendant chooses not to accept a guilty plea, in most cases his or her lawyer will defend the case in court by filing motions and seeking "discovery" — i.e. information that the prosecutor knows about the case. Motions can request dismissal of the case, exclusion of certain evidence and various other sorts of relief. Discovery in a criminal case is very limited. Usually, the prosecution will hand over only things taken from the defendant and some other documents such as laboratory tests. The most important documents — police reports, witness statements etc. — are generally not handed over until just before trial. However, clients should keep in mind that they have a constitutional right to materially exculpatory evidence in time for its effective use at trial.