Extract

After arrest, the suspect, who is now more aptly called the defendant, is often taken into custody. If so, and the arrest is not based on a warrant or indictment, the defendant is entitled to a hearing (variously called the initial appearance, the probable cause hearing, or the arraignment) to determine whether the arrest is based on probable cause; the defendant is also appointed counsel if one is not already involved, and, in very minor cases, may be tried. Also considered at this hearing, or at a separate hearing near this point in time, is whether the individual should be released pending trial and, if so, under what conditions. Soon thereafter, the defense attorney may make various motions, seeking, for example, exclusion of illegally seized evidence, psychiatric evaluation of the defendant, or discovery of information from the prosecution’s files.

In the meantime, the prosecutor will formalize charges. The charging decision will be affected by a number of considerations, including the strength of the case (which, if too weak, may lead to dismissal), whether multiple charges or defendants should be joined together in one proceeding, and the proper venue for the case. The charging decision will usually be subjected to review at another preliminary hearing or by a grand jury, or both, depending on the jurisdiction.

This chapter describes this pretrial process. All of these stages are designed to winnow out weak cases, control the prosecutor’s power, and ensure that the ultimate adjudication is based on all...