In Part 1 and Part 2 of a previous Blog Post, we examined the very first proceeding in a Criminal case, known as the Arraignment. This article will deal with the next step in all Misdemeanor cases, called the “Pre-Trial.” In particular, we’ll be talking about what’s known as a “Pre-Trial Conference.” Because there is a lot of ground to cover, we’ll split this discussion of Misdemeanor Pre-Trials into 2 parts. In a future post, we’ll explore Felony Pre-Trials. Although a Pre-Trial is substantially similar in both Felony and Misdemeanor cases, there are enough differences between them to merit dealing with each in a separate article.
We can learn a little about the purpose and meaning of a Pre-Trial just by looking at its name. Technically speaking, there are two kinds of Pre-Trials. The first, both in terms of occurrence and how we’ll examine them, is called a “Pre-Trial Conference.” This is mostly what we’ll be discussing in both parts of this article. The second, which takes place second, if at all, are called “Pre-Trial Proceedings.” “Pre-Trial Conferences” always occur in a Criminal Case. “Pre-Trial Proceedings” frequently do not happen in a Criminal Case. We’ll explore that term in the second part of this article, but the focus of our discussion and examination in both parts of this article will be on the Pre-Trial Conference, which, throughout this article, we’ll mostly and simply be calling the “Pre-Trial.”
The most important word here is “pre.” “Pre-Trial” means “before trial.” This means that before a case actually goes to Trial, there is at least a Pre-Trial Conference. The whole point of this Conference is to determine if there is a way to work out or resolve the case without the need for an actual trial.
What actually takes place at a Pre-Trial Conference has little to do with any kind of Court hearing. The main purpose of the Pre-Trial is to bring the Prosecutor and the Defense Attorney together so that they may discuss the case and see if they can come to an agreement to resolve it without the need to have the case decided through a trial. This can perhaps be better understood by looking at an example.
Let’s say a person has been Arrested and Charged with a DUI. In Michigan, the actual charge is OWI, or Operating While Intoxicated. For our purposes, we’ll skip over the details of the Stop and the Arrest, and assume the Evidence against the Driver (the Defendant) is rock-solid.
After getting out of Jail the morning after his Arrest, the Defendant is instructed to appear in the District Court for the City where the arrest occurred in a couple of weeks for his Arraignment. At his Arraignment, the Defendant enters a Plea of “Not Guilty,” and is sent home with his next Court date. That Court date is the Pre-Trial. As far as any Court Notice goes, it will only say “Pre-Trial,” and not “Pre-Trial Conference,” or anything else.
Note that in some cases, the Defendant may have hired his Lawyer first, and had the Arraignment “Waived” so that he did not have to appear in Court for that. In other cases, usually where a Defendant was either not Arrested, but instead given a Misdemeanor Citation (Ticket), or where, after being Arrested, the Defendant was let out of Jail after posting a small “Interim Bond” or perhaps without posting any money at all, he or she will receive a Court Notice to appear for what’s called an “Arraignment/Pre-Trial.” Whatever happened, the Defendant must appear in Court for a Pre-Trial.
The Defendant in our example hires a Lawyer to represent him in his case. On the date of the Pre-Trial, both the Lawyer and the Defendant show up to and check-in with the Court, as directed. The Lawyer greets his Client in the lobby of the Courthouse, and tells him that he is going into a conference room to meet with the Prosecutor, and that he’ll be back out to talk with him after that.
The lawyer goes into the conference room, where the Prosecutors, Police Officers and Defense Attorneys meet to discuss cases. In our case, after telling the Prosecutor which case he’s there for, the Lawyer is handed the Prosecutor’s file so that he can read the Police Report and any other information, including both the Criminal and Driving Record of the Defendant. Once he’s read the Prosecutor’s file, and after he feels he’s ready to discuss the case, the Lawyer waits his turn until the Prosecutor can speak with him. This is really the “meat and potatoes” of the Pre-Trial.
By law, a Defense Lawyer has not only the right to a copy of the Police Report and other evidence against his Client, he has the right to see everything the Prosecutor has concerning his client. Rather than copy all that stuff (and certain things, like a Criminal Record, cannot be copied and handed out), most Prosecutors will just hand their file over to the Defense Lawyer so that he or she may examine it and see what evidence there is in the case. Depending on the nature of the offense, the information in the Prosecutor’s file can be “short and sweet,” or it can be voluminous.
Anyway, before any meaningful discussion can be had in a case, each side needs to have a good, honest understanding of the Charge and the evidence supporting that Charge, any problems with that evidence, as well as any other factors that may have some bearing on how the case can be resolved. The focus of the conversation between the Prosecutor and the Defense Attorney is on whether or not they can come to some kind of agreement, or compromise, which will dispose of, or resolve, the case.
Imagine (yes, an example within an example…) a person selling their house. They have listed the price at $100,000. Now a potential buyer comes along, and meets with the seller. The potential buyer wants to get the house for as little as he or she can, and the seller want to sell the house for as much as they can. The potential buyer offers $70,000 for the house. The potential buyer points out that the roof will need to be replaced soon, and that the driveway is cracked. Now the seller realizes it’s going to be a lot easier to just give a little, take a little less, and get rid of the house. The seller then says they’ll take $90,000 for the house. Next, the potential buyer points out that the electrical will need some upgrading, and that he’s likely to have to put another few thousand into that. He ups his offer to $80,000. Through the same kind of give-and-take, push-and-pull, the parties settle on a deal at $85,000.
This is sort of what happens as the Prosecutor and the Defense Lawyer negotiate over a case. The Prosecutor’s job would sure be a lot easier if everyone just came in willing to Plead Guilty to whatever Charge had been made against them. In the same way, the Defense Lawyer’s job would be just as easy, if, upon showing up in Court the Prosecutor simply agreed to dismiss all Charges. That doesn’t happen however, and it’s this negotiating process that the Pre-Trial is really all about.
In Part 2 of this article, we’ll take a closer look at what happens when the Prosecutor and the Defense Lawyer are able to reach a compromise, and work out some kind of a deal . We’ll also look at what happens when they cannot come to an agreement and no deal can be reached.