Criminal Process Before the Trial

Authored By: Carl Vinson Institute
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Criminal Pretrial Process

This document tells you the following:

  • What happens at the booking?
  • What happens at the initial appearance?
  • What does it mean to have the right to an attorney?
  • What is bail and how does it work?
  • What is the purpose of the pretrial hearing?
  • What happens during the pretrial hearing?
  • What is an indictment and what happens during the indictment?
  • What is an arraignment and what happens at the arraignment?
  • What happens if a person pleads guilty?
  • What is plea bargaining?
  • What are the defenses of law that the accused can claim if he or she pleads innocent?

The heart of the criminal justice process is the trial. Like arrests and searches and seizures, trial procedure is regulated in part by the U.S. and state constitutions. Within the constitutional guidelines, the courts have developed a set of rules. These rules guide the participants-the judge, jury, prosecutor, and defense attorney-through the process in such a way as to guarantee that the accused is treated fairly.

There are two main parts to the trial process:

  • the preliminary proceedings and
  • the trial itself.

In effect, they form a series of steps that must be followed in each case.


Pretrial proceedings include the following: the booking, initial appearance, preliminary hearing, indictment, and arraignment.

BookingAfter a suspect is arrested, he or she is booked at the police station. Bookings are formal listings of the names of persons and the crimes of which they are accused. Usually, after booking, individ-uals are photographed and fingerprinted. Their personal property is taken and stored. Each person is allowed to make one phone call before being put into a jail cell.

Initial AppearanceThe purpose of the initial appearance is to make sure that the person accused of a crime is aware of the charges and is given due process. The initial appearance takes place in the magistrate court. It must occur within 72 hours if there was a warrant for the arrest. Only 48 hours are permitted if an arrest was made without a warrant.

The judge will ask the accused whether he or she has an attorney. The judge will also seek to determine whether the accused is indigent (which in this situation means being unable to afford an attorney).

Until 1963, the U.S. Constitution was not interpreted as guaranteeing an indigent person the right to be represented by an attorney. This interpretation changed with the U.S. Supreme Court decision in Gideon v. Wainwright, 372 U.S. 335 (1963).In this case, the court held that the state must provide an attorney to any indigent person accused of a crime that is a felony. However, the accused may waive the right to have counsel at the initial appearance.

In 1972, the U.S. Supreme Court extended the right established in Gideon to insist that the state provide an attorney to indigent defendants whenever imprisonment is possible, as with felonies and some misdemeanors. Argersinger v. Hamlin, 407 U.S. 25 (1972).

The judge may appoint an attorney for an indigent defendant from the local members of the bar. In some jurisdictions, one or more attorneys may be appointed as public defenders. They are paid by the government to defend indigents accused of crimes in that jurisdiction.

At this initial hearing, the judge also sets bail. (For some of the more serious crimes, bail must be set by the superior court.) Bail is a certain amount of money that must be posted with the court. By posting bail, a suspect can avoid having to wait in jail until his or her trial. The money is a guarantee that the accused will appear in court for each required court appearance and for the trial.

In Georgia, a suspect is usually allowed to get out of jail by posting bail unless he or she is accused of a capital crime. (A capital crime is a crime such as murder, rape, or armed robbery that is punishable by long prison sentences, life imprisonment, or death. Bail, or surety, is generally denied by the courts for defendants accused of this type of crime.) In many cases, bail is also denied if the defendant is a repeat offender or if the crime is a violent one.

How does bail work?

Method Who pays? Cost Requirements
Bail is set by judge unless prohibited



Bail bondsman

No cost if the defendant shows up for trail. Bail is then returned. All of the bail is paid if the defendant does not show up.

10 to 15 percent of amount set for bail is paid to the bondsman

Sufficient cash or property to meet bail


Sufficient funds to pay bondsman (bondsman must be willing to take risk on defendant)

10 percent plan (10 percent of bail is paid to court) Defendant If the defendant shows up for trial, a small amount of that which was paid as bail is kept by the court, and the rest of the money is returned. Sufficient funds to pay court fees (the court must be willing to take risk on defendant)
Release on recognizance Nobody No charges Defendant must qualify for enough points. Points reflect the defendant's previous record, nature of crime charged, work history, and community ties.

The 10 percent plan is used in other states; 10 percent of the bail is paid directly to the court, thereby relieving the defendant of having to produce all the money at one time, use a bail bondsman, or rely on someone else to post bond for him or her. Release on recognizance is occasionally used in Georgia. With this approach, the defendant agrees to appear at trial, but no money is required as surety. Because the court allows the accused to be released on his or her signature, release on recognizance is often called a signature bond. Release on recognizance gives all who qualify-regardless of resources-a chance to show they are a good risk based on their word.

At the initial hearing, the judge hears arguments from the prosecutor and the defense attorney as to whether bail should be set and how much it should be. A defense attorney will attempt to get release on recognizance for the accused. Failing that, the attorney will attempt to get the judge to set the lowest possible bail.

In cases involving the sale of drugs, only a superior court judge can set bail.


Preliminary Hearing

This hearing is usually held in magistrate court. Its purpose is to determine

1. whether or not there is probable cause to believe that a crime has been committed and the defendant is the person who committed the crime.

2. whether the charges brought are appropriate to the acts committed and whether the acts constitute a felony or a misdemeanor.

In a preliminary hearing, the court is not concerned with whether or not the defendant is guilty. It simply wants to determine if there is enough evidence to indicate that the accused person should be prosecuted.

During the preliminary hearing, each side introduces evidence. The prosecution tries to show probable cause. The defense tries to show lack of it. If probable cause is established during the preliminary hearing and the case involves a misdemeanor, it is forwarded to the appropriate court, and a trial date is set.

If the case concerns a felony, it is forwarded to the district attorney for presentment (presentation) to the grand jury. (Presentment may be waived by the defendant, or it may be waived by statute for less severe crimes.)


In Georgia, all capital felonies must be presented to a grand jury. Certain cases involving other, less severe felonies like shoplifting, credit card transaction fraud, forgery, and entering an auto, are not presented to a grand jury. In these cases, the district attorney may proceed on an "accusation" by filing a written document with the court that allows the case to go forward. This procedure helps to speed up the process. It also eliminates the need to have any witnesses present. Whether a case is presented to a grand jury or proceeds on an accusation, it will be for a grand jury to decide whether to indict persons alleged to have committed a felony. (To indict is to formally charge a suspect with a crime.)

Each county has its own grand jury made up of a group of randomly selected community citizens. In Georgia, grand juries are made up of 16 to 23 registered voters from the county in which they serve. Grand juries that serve three-month terms have varying civil powers and duties. Their chief responsibility is to determine whether to indict people who are brought before them by the district attorney.

Generally speaking, the grand jury hears only some of the evidence in a case-that is, the evidence that the district attorney chooses to present or that the grand jury requests. Defendants do not normally present evidence on their own behalf.

The grand jury decides when it has heard sufficient evidence. Then it will decide whether to accuse the defendant of the crime(s) charged. It will either issue a "true bill" of indictment or a "no bill" of indictment. If a true bill is issued, the accused is formally indicted and charged with the crime. If the grand jury feels there is not enough evidence to charge the defendant, it will issue a "no bill." The defendant will then be released and the charges dropped.

Why is a formal indictment necessary?

A grand jury's review of a case is a constitutional safeguard. It ensures that there is sufficient basis for the charge that a felony has been committed and that there is evidence that the defendant may have committed it.


The arraignment is held in either state or superior court. It is a formal hearing in which the judge reads the charges against the accused. Then the accused is asked for a plea-either guilty or not guilty.

Sometimes a third type of plea is accepted by the court. It is called nolo contendere, or a "no contest" plea. It means, "I am pleading no contest to the charges brought against me. I will not attempt to prove my innocence or disprove my possible guilt." In other words, the court is free to find defendants who plead nolo contendere guilty and sentence them. The persons pleading are not admitting guilt. However, for all practical purposes, their plea results in a conviction. The nolo contendere plea is sometimes used in traffic cases. It is also used in cases in which the person is likely to be fined but not sent to jail.

If a plea of not guilty is made, a trial date is set. The accused remains out of jail on bail or is released on recognizance or returned to jail until the trial.

A special plea of not guilty by reason of insanity may also be entered. This plea is used most often in capital crimes. If this plea is made, the court will have to hear expert testimony from psychiatrists and psychologists.

Two issues must be resolved:

  • Is the defendant now insane?
  • Was he or she insane at the time that the alleged crime was committed?

What if a defendant is found to be insane at the time of trial or mentally incompetent to stand trial?

The court can order the defendant to be confined in a state hospital until he or she is considered competent to stand trial. If the defendant becomes competent to stand trial, the trial will proceed as if the issue of mental competence had not arisen.

What happens if the accused is found during the trial to have been insane at the time of the crime?

The defendant will not necessarily be freed. The court may order the defendant to be committed to a state hos-pital or other place of confinement until he or she is considered sane. If declared sane, the accused will usually be released.

In Georgia, juries may find a person guilty but mentally ill. In these cases, the defendant serves his or her sentence in either a state hospital or a jail facility that has special treatment programs. The individual is not freed once he or she is considered well. The defendant will have to serve the length of the sentence imposed by the judge.The length of the sentence served is the same as it would be had the accused not been found to be mentally ill.

If a Person Pleads Guilty

If a person pleads guilty, the court must be satisfied that such a plea is reasonable and freely given. Furthermore, it must conclude that, in all prob-ability, the person is guilty as charged. And the court must ensure that due process has been given to the defendant-that is, none of his or her rights can have been violated.

Once the court has made these determinations, it then sets a date for sentencing. Before that date, there is usually an investigation to determine if any mitigating or aggravating circumstances exist. If so, the court will consider them in sentencing the defendant.

A judge may give a lighter sentence if there are mitigating circumstances in a case. For example, the defendant may have some problem that helps explain why the crime was committed, or the defendant may have a good record with no previous arrests. These circumstances might cause a judge to be more lenient in setting the sentence than would normally be the case.

Aggravating circumstances, on the other hand, tend to cause a judge to set a stricter sentence. Aggravating circumstances may include the fact that the defendant has a criminal history or that the crime was particularly cruel or gruesome.

Plea Bargaining

During the early stages of the trial process, the prosecutor and the defense attorney may meet to determine if the case can be settled without going to trial. These efforts are referred to as plea bargaining. Plea bargaining may begin just after the defendant obtains a lawyer.

In plea bargaining, the defense attorney sometimes suggests that the client consider pleading guilty to a less serious charge. For example, suppose the client is charged with burglary of a house, a felony punishable by a sentence of up to 20 years in prison. The defense attorney may suggest that his or her client consider pleading guilty to the less serious charge of criminal trespass. This misdemeanor is punishable by a sentence of up to 12 months in jail and/or a fine of up to $1,000.

At other times, the defense attorney may suggest that his or her client plead guilty to the charge in order to receive a recommended sentence by the prosecutor. A recommended sentence might be a sentence that is lighter or more favorable to the defendant than would usually be the case.

This plea negotiation is often carried out with the judge's knowledge and permission. Judges reserve the right, however, to make up their own minds about a sentence. A judge is not legally bound by the agreement reached by the prosecutor and the defense attorney. The judge may have reason to believe that the defendant is merely claiming guilt and is plea bargaining simply because he or she fears a trial.

The current practice is to resolve as many cases as possible through plea bargaining in order to lighten the caseload for the courts. That is not to say that a prosecutor attempts to plea bargain every single case. Each case is carefully reviewed beforehand. Factors are considered such as the amount of evidence the district attorney has against the defendant, the criminal history of the defendant, and the severity of the crime.

There has been a great deal of debate over plea bargaining. On the one hand, many people believe that our court system could not survive without plea bargaining. They argue that if it were forced to try everyone accused of a crime, the court system would collapse because of too many cases and enormous costs of so many trials. Other people oppose plea bargaining because it seems to put the responsibility of determining guilt on the prosecutor instead of on the judge and jury. They argue that plea bargaining works against a person's right to a trial by a jury of one's peers. They claim that plea bargaining enables guilty parties to get off with sentences that are too light.

If a Person Pleads Not Guilty:

Defenses of Law

A fundamental concept in the criminal justice system of this country is that a person is presumed innocent until proven guilty beyond a reasonable doubt by the state. A defendant does not have to prove anything. He or she does not even have to take the stand in his or her own de-fense, and the prosecutor cannot even comment on the defendant's choice in this matter. In addition, there are certain defenses that a defendant may use at trial or even as early as during the plea bargaining stage. For each case, an attorney must decide which defenses might apply.

Descriptions of the more important and commonly used defenses are shown in the table below.

Legal Defenses in Georgia

Alibi Defendant must prove that he or she was someplace other than the scene of the crime when it supposedly took place.
Coercion Defendant claims that the "crime" was committed to avoid threats of immediate death or great bodily harm. Fear must be reasonable. This defense does not apply to murder; and it applies only when the defendant is threatened, not others.

Suppose a telephone caller threatened to harm you unless you stole some valuable jewelry and mailed it to him. You could not claim the defense of coercion because the threat would not be immediate. Or suppose someone threatened to harm you unless you killed another person. You could not apply this defense because it does not apply to murder.
Delusional Compulsion The "crime"must have been committedunder delusional compulsion. A delusion is a belief that is false, although the person holding it believes it is true. The compulsion must be due to mental disease, injury, or a birth defect. For example, a woman suffering from delusions may have believed that the person she killed was a large ferocious animal that was oging to harm her family.
Entrapment Defendant claims that the "crime" would not have been committed had the defendant not been tricked into it by a law enforcement officer. The officer is alleged to have participated in criminal activity to encourage the defendant to do the same. The officer must have generated the idea for the criminal activity without the help of the defendant. Often used in drug cases.
Insanity Mental incapacitation (that is, not being capable of knowing right from wrong) at time of at must be proved.
Involuntary Intoxication The intoxication must be involuntary. Several excuses are recognized: "excusable neglect" (example: Sandra drank punch at party without knowing it had alcohol in it); "fraud, artifice, and contrivance: (example: someone slipped LSD into Frank's punch); and "coercion" (example: Billie was physically foreced to drink the punch with alcohol in it).
Mistake of Fact Defendant claims that the "crime" was committed because of a mistaken view of the situation. For example, Jennifer shot at Herb, believing he was an "intruder". Actually, Herb is a cousin who let himself into Jennifer's house to surprise her.
Self-Defense Can be defense of self, others, and/or home. The defendant must show justification for doing what would normally be a crime. For example, killing someone for trying to "kidnap" a pet dog would not be justifiable.

The most common defense is to deny the charges. Witnesses and alibis are used, when possible, to support the denial. Trying to shift the blame to someone else is also an effective method of defense.

Defense attorneys may also make use of a number of pretrial motions, which can be quite important. To prevent damaging evidence being introduced at trial, the defense attorney may make a "motion to suppress evidence," claiming that the evidence was obtained illegally. Alternatively, an attorney may make a "motion for a continuance" (for the trial to be postponed) in order to have more time to prepare the case. If an attorney feels the community may be hostile to the defendant, and therefore the defendant might not receive a fair trial, he or she may make a "motion for a change of venue" (that is, a request to change the location of the trial).

* Excerpted from An Introduction to Law in Georgia, Third Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2001). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase ator by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.

Last Review and Update: Jul 30, 2004