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  • Jessica Martinez


PART II - By Jessica Martinez, Chief Deputy District Attorney


Once an indictment or a Criminal Information has been filed, the district court schedules an Arraignment Hearing. At this hearing, the defendant is informed of the charges brought against him /her and the maximum penalties for the charges. The question of the defendant’s bond will be addressed. If the defendant is out of custody the judge will likely let him/her remain out of custody if he/she has stayed out of trouble since first released from jail. The judge will however, set conditions that must be followed to remain out of custody while the case is pending trial. If the defendant is still in custody the judge decides whether release is appropriate based on whether the defendant is a flight risk and/or continues to pose a threat to the community.


The Discovery process begins after the Arraignment. The state files a list of all the witness to be called to testify at trial. The State also makes available to the defendant and his/her defense attorney all reports, statements made by witnesses, video recordings, pictures, forensic lab results, in some cases medical reports, and anything else the state will use as evidence to prove the charges brought against the defendant.

The defense attorney then reviews the evidence and works with the District Attorney to interview every witness the State has disclosed on its witness list about their involvement in the case. These are called Pretrial Interviews, or PTI’S for short. If a witness does not appear for his/her scheduled PTI and makes no attempt to re-schedule, that witnesses’ testimony at trial will likely be suppressed by the court and that witness will be barred from testifying at trial.

After all interviews have been completed the defense may file Motions with the court asking the court to limit the use of some evidence presented against the defendant or in some cases may ask the court to dismiss the case because the defense believes the evidence was collected in an unconstitutional way. For example, law enforcement collected evidence without a warrant, the defendant’s statement was taken without Miranda warnings being read to him/her first, or a key witness failed to cooperate in the pretrial interview process. The state has 15 business days to respond to the defense motions once they are filed. The court then holds an evidentiary hearing where testimony may be taken from officers if the motions involve a fourth Amendment, search and or seizure violation allegation. The court will hear arguments from the state and defense and will ultimately decide on whether to grant the defendant’s motion.

If the court grants a suppression motion, the state then must re-analyze the case and determine if the remaining evidence is sufficient to prove the charges beyond a reasonable doubt at trial. If a key witness is suppressed, for example a victim who incurred injuries because of the defendant battering him/her, the state may not be able to proceed because of the defendant’s constitutional right to confront his accusers and rules of evidence disallowing hearsay. If the evidence is sufficient the case will continue to a trial.

Once all motions have been addressed the case will be scheduled for a jury trial or plea negotiations may occur. During the trial, the State has the burden of proving the defendant committed each crime charged beyond a reasonable doubt. Reasonable Doubt is a doubt based upon reason and common sense -- the kind of doubt that would make a reasonable person hesitate to act in the graver and more important affairs of life.


There is a common misconception that when a defendant takes plea charges are reduced or dismissed. However, this not always the case. Often, if a prosecutor has sufficiently vetted his/her case before charging the risks of any evidence or testimony getting suppressed because of a constitutional violation is less likely. Also, if the evidence against the defendant is strong, there is a chance the defense attorney may advise the defendant to plead guilty to the charges for an agreed upon sentence rather than take her/her chances at trial and risk the judge imposing the maximum penalty.

However, there are times when, yes, a plea offer does involve a reduction in charges or sentencing. This can happen for several reasons. Witnesses have become uncooperative, or evidence has been suppressed, or sometimes a witness is cooperative but going through a trial is too emotionally burdensome. When these scenarios happen, the State will evaluate the case and offer a plea to charges that could still be proven at trial despite the suppressed evidence or to charges the victims are comfortable with when they prefer to forgo a trial.


NOTE: For a Glossary of Terms, please see Part 1 of After the Arrest


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