In Part 1 of this article, we began examining the Pre-trial process, and what’s involved. In this second part of the article, about Pre-Trials, we’ll take a closer look at how the Prosecutor and the Defense Attorney negotiate at a Pre-Trial, and what happens when those negotiations are successful at producing some kind of deal, as well as what happens when they are not.
As we embark on the second part of this article, remember that we were using, in the first part, an example wherein a guy was arrested for Drunk Driving (really OWI, although pretty much everyone uses the term “DUI”) and he had already been Arraigned, hired a Lawyer, and checked into Court on the date of his Pre-Trial (remember, back in Part 1 of this article we decided that we would speak of “Pre-Trial Conferences” as simply “Pre-Trials”). His Lawyer has gone into a conference room in the Court to meet with the Prosecutor, and after having reviewed all of the Prosecutor’s evidence, is ready to start discussing the case and negotiating with the Prosecutor. We’ll pick up there.
In our Drunk Driving (DUI) example, the Prosecutor may look to the Defense Lawyer and point out that the Defendant was caught on Police-car video swerving all over the road, and that based upon all of the evidence the case looks “airtight.” In response, the Defense Lawyer may admit as much, but will point out that the Defendant was very cooperative with the Police Officer, and that his Bodily Alcohol Content (BAC) was not very high. Then the Defense Attorney may then simply ask the Prosecutor if he or she will agree to reduce the charge from OWI (Operating while Intoxicated) to OWVI (Operating While Visibly Impaired). This reduction in the severity of the offense to which the Defendant pleads, from the more serious one with which he was originally charged, to one less severe, is called a “Plea Bargain.” Even though, from the Prosecutor’s point of view, the case looks “airtight,” unless the Defendant just rolls over and Pleads guilty, the matter will still have to go through a Trial.
This is where, no matter how “airtight” the Prosecutor’s case appears to be, the Defense Lawyer has some leverage. Even a relatively simple and straightforward case eats up a lot of time if it is decided at Trial. By agreeing to reduce the Charge and agreeing to a Plea Bargain, the Prosecutor avoids getting caught up in a log-jam of cases. Sure, the Prosecutor would like to have everyone come in and Plead guilty-as-charged, and the Defense Lawyer would like to walk into Court and have every case against everyone of his or her Clients dismissed outright, but that almost never happens. The majority of Criminal Cases, like the sale of houses, are finalized through compromise and negotiation. Each party has to give up a little of what they want in order to facilitate a deal.
At this point, the discussion between the Prosecutor and the Defense Lawyer are squarely within the scope of what is meant when the term “Pre-Trial” is used. Of course, in our DUI example, the Prosecutor may (and, absent anything unusual, like a prior DUI conviction, usually will) agree to the Plea Bargain, or they may not. Let’s continue and see what happens in either situation.
If the Prosecutor and the Defense Lawyer agree to the Plea Bargain, then the matter is sent before the Judge for the entry of the Defendant’s Plea. The Pre-Trial is considered “done” at the point where the Prosecutor and the Defense Lawyer have arrived at an agreement. The taking of the Plea before the Judge, which usually occurs on the same day, is just that, the entry of a Plea, not the continuation of the Pre-Trial. The Pre-Trial was over once the Prosecutor and the Defense Lawyer signed off on the agreement for the Plea deal.
Now, let’s say that the Prosecutor refuses to reduce the charge, and the Defense Lawyer is unable to negotiate any other breaks for his Client. There are two choices available:
1. Set the matter for a Trial, or
2. Set the matter for yet another Pre-Trial.
There is no limitation allowing only 1 Pre-Trial Conference. In fact, quite often, and for a lot of different reasons, either the Prosecutor or the Defense Lawyer will want to check something out or wait for something to happen which will place them in a better position to negotiate a resolution of the case. Consider this situation (yes, still another example within an example): The parties come to Court, and the Prosecutor doesn’t have his or her file on a particular Defendant, and therefore, without being able to review that person’s prior record, if any, cannot agree to (nor refuse to go along with) a deal that will close the case out. In other words, no agreement can be reached at that time, but that does not mean one cannot be reached at a later date.
Just because the Prosecutor and the Defense Attorney are unable to agree right then and there to either a deal disposing of the case (or the need to have it decided at Trial), does not mean that the next step must be the scheduling of a Trial. In any number of cases I’ve handled, there have been multiple Pre-Trial Hearings as negotiations go back and forth. I’ve had cases with as many as 4 or 5 Pre-Trials, although those are far more the exception rather than the rule.
With all that said, if it is obvious that there will never be an agreement to dispose of a case, and neither side is able or willing to compromise, at least enough, to bring about some deal, then the Pre-Trial Conference is “closed” and the matter set (scheduled) for Trial. In some cases, before there is an actual Trial date, the Judge will want the parties back one more time for what is sometimes called a “Final Pre-Trial.” Often, there is some last-ditch effort at the Final Pre-Trial to come up with an acceptable compromise. If that fails, the Judge will usually have both the Prosecutor and the Defense Lawyer, sometimes in his or her Chambers, and other times in open Court, outline the issues to be resolved at Trial, estimate how many witnesses each will call, and try and determine how long the Trial will last, so that it may be scheduled for a block of time when the Court can likewise keep its schedule relatively open.
In addition, either side may want to bring matters before the Court regarding what evidence will be allowed and not allowed at Trial. The Defense may try and have evidence thrown out, or otherwise challenge aspects of the Prosecutor’s case before the actual Trial itself. These Hearings are known as “Pre-Trial Proceedings,” because they are matters to be decided before Trial. As you can see, “Pre-Trial Conferences” are different from “Pre-Trial Proceedings.”
As we review what happens at a Pre-Trial, it should start becoming clear that, unlike and Arraignment, there is no regimented, set procedure for what takes place. A Pre-Trail is essentially a meeting between the Prosecutor and the Defense to try and find a compromise between Pleading Guilty-As-Charged and getting the case Dismissed outright. Most of the time, that negotiation process results in a Plea Bargain. In other cases, it results in a bargain or agreement about the Sentence a person will receive (usually a “No Jail” deal). Sometimes, a Pre-Trial results in another Pre-Trial. In a sort of “worst case” scenario, a Pre-Trial, or any number of them, results in a stalemate, and a matter must be decided at a full-blown Trial.
The subject of Trials will, I’m sure, prompt a whole series of future Blog posts. Jury Trials, Bench Trials, Jurors, and Jury Selection are just a few of the many ingredients that go into that mix. I suppose that even a rudimentary explanation of the Trial process will be a fairly large Blog series, at that. Since that’s not the subject of this article, and because I’m really in no hurry to tackle that monster of a subject, we’ll leave it hanging out there for a future project. For now, we simply need to know that a Pre-Trial Conference is a meeting between the Prosecutor and the Defense Lawyer which results in either a deal, another Pre-Trial to work out a deal, or in the setting of an actual Trial date. Pre-Trial Proceedings are hearings held before the Judge to determine what evidence will (and won’t) be allowed to be presented at an actual Trial, and these Proceedings usually occur after, and if, no deal could be reached at any previous Pre-Trial Conference.