What Happens At A Pretrial

After the initial court date, there are usually a number of court dates called “pretrials,” “EDPs,” or “prelim settings.” You can think of these as “check-in” dates, as they are essentially a chance for us to get the DA and/or court to look at the case.

These may sometimes seem like a waste of time, but, when handled by a competent defense attorney, they are not. These dates are the period of the case where the magic happens! The purposes of these hearings vary on a case by case basis, but include:

Negotiating with the DA. These check-in dates are a chance for us to show the DA and/or judge our perspective on the case and who our client is as a person. Sometimes, we will return to court multiple times for these check-in dates purpose of negotiating with the DA, and you may wonder why or feel like they are a waste of time. Persistence is frequently key to getting the best possible result. Essentially, we are wearing the DA and sometimes even the court down. If going to court extra times will ultimately save our client's record or years of their freedom, we need to do it! When the DA and the court see that we're not going to advise our clients to accept lousy deals (or even mediocre deals, frankly), we are much more likely to get the offer that we want. If going to court an extra time will save years, months, weeks, or even days off of our client's sentence, we can't hesitate to set that extra court date.

Motions. These check-in dates are also our chance to file certain motions (motions to suppress evidence, strike priors, etc.). Not every case has applicable motions, but for the ones that do, a motion can make a big difference by potentially suppressing some or all of the evidence against our clients. When applicable, key motions in the case set during these check-in dates can lead to the entire case being dismissed.

Court-Appointed Experts and Defense Investigation. Sometimes, we can get experts (psychologists, ballistics experts, investigators, etc.) appointed by the court at no cost to our clients. These check-in dates are our chance to ask the court to sign an order giving us an expert to help fight the prosecution's case. We then have the expert review evidence or conduct an investigation and prepare a report to aid in our client's defense.

Discovery Check-Ins. Often, the DA will not have all of the "discovery" (evidence on the case) ready at the first hearing and will drag their feet in obtaining it from the police. In order to make sure that we have all evidence that might help our client or be used against him or her, we need to set check-in dates to let the judge know what we have requested and have the judge put pressure on the DA to give us all of the evidence in a timely manner. It often takes several check-in dates to obtain everything that we want, but it is worth it in order to avoid being surprised later in the case.

Subpoenas. If we subpoena a piece of evidence from a third party (for example, surveillance video or medical records), the third party will be required to turn over the requested evidence to the court. The deadline to do so will be a check-in date. On that date, we can either get the requested evidence from the court if it's been turned in or ask the court to order the third party to provide it to us.

995 Motions. After the information arraignment, we can file a PC § 995 motion to dismiss the case based on insufficiency of the evidence presented at the preliminary hearing. This gives us a second chance to have a judge look at the case and dismiss some or all of the charges. The standard for granting this is still the same as the preliminary hearing and for arrests (probable cause), but in some cases, the court will dismiss some or all counts.

Negotiations with the DA using the Preliminary Hearing Transcript. After we’ve had the preliminary hearing had witnesses testify under oath, we can compare those statements to what the witnesses told the police at the time and use those inconsistencies in our client's favor. We can also use admissions made by the witnesses at the preliminary hearing (for example "We don't remember" or "I'm not sure if it was him") to show the DA the problems with their witnesses against our client

Additional Experts, Subpoenas, and Discovery Requests. If testimony at the preliminary hearing helped us discover the need for more court-appointed experts, subpoenas, and requests for evidence that we previously did not know existed, then we obtain those during one of the trial phase check-in dates.

Importantly, most of the time, the DA makes the offer that they claim is their “last best” offer before the preliminary hearing and tells us that it expires if the case goes to a preliminary hearing. (The purpose of this is to incentivize defendants to settle their cases early without the DA having to spend the time on a preliminary hearing.)

Ultimately, in most cases, after several rounds of negotiations and extensive work on the case, we get an offer that our clients are happy with during one of these check-in dates. But if the DA does not provide a good enough offer by the preliminary hearing or if the DA wants to see how the witnesses do at the preliminary hearing before making an offer (rare, but it happens), then it will be necessary to move forward with the preliminary hearing.

Related Posts

Recent Posts

Table of Contents