Pre-trial

The “pre-trial” phase generally refers to the time after someone has been arrested and arraigned, but before the case is at trial. At this stage, if the person accused of a crime, or “defendant,” pleads guilty or has already pled guilty, then their case will move to the sentencing phase. However, if the defendant has pled not guilty, the following processes may occur during the pre-trial phase.

Bail

Bail, and whether a person must remain in jail during their criminal case, is first set by a Judge during the arraignment phase. However, during the pre-trial phase, the defense lawyer or the prosecutor can still ask the Judge to change a person’s bail status.

Many bail rules were changed by new laws passed in 2019. To read more about those changes, go to: Bail Reform NY

Discovery

During “discovery,” both sides will exchange information needed to prepare their cases for trial. For example, during discovery, a defense lawyer can review or obtain:

• Physical evidence that the prosecutor has
• Copies of any written or spoken statements that the defendant made
• Copies of what a defendant may have said to a grand jury
• Copies of any physical or mental tests

Many rules of discovery were changed by new laws passed in 2019. To read more about those changes, go to: New York's Discovery Reform Law

Motions

A “motion” is how you ask the court for something in the case. Both sides, the prosecutor and the defense lawyer, may send motions to the court before the trial starts. Motions may be written or spoken aloud in court. Some things that motions may ask for include:

• Dismissing the case in the interests of justice
• Reducing the number or seriousness of the charges
• Asking the judge to review an indictment
• Stopping certain pieces of evidence from being used at trial

Generally, pre-trial motions must be made within 45 days of the arraignment. Once a pre-trial motion has been made, the Judge will decide whether to grant or deny the motion. A Judge may decide a motion by holding a hearing.

Hearings

A hearing is a court session held to decide a certain issue related to the law or the facts of a case. Witnesses may be called to testify at a hearing, but a hearing is not a full trial.

Many pre-trial hearings are a particular type of hearing called a “suppression hearing.” In a suppression hearing, the court must decide whether certain pieces of evidence should be allowed or if they should be suppressed, or stopped, from being used during the trial. Suppression hearings often involve an argument that the police did not follow the right procedures to get evidence in the case.

Some common examples of suppression hearings include:

Mapp Hearing

• The Court must decide whether certain physical evidence should be suppressed or not allowed into evidence

Huntley Hearing

• The Court must decide whether a defendant’s statement should be suppressed or not allowed into evidence

Wade Hearing

• The Court must decide whether a police arranged identification of the defendant (other than inside the courtroom) should be suppressed or not allowed into evidence

Dunaway Hearing

• The Court must decide whether the police had enough probable cause to make an arrest. Dunaway hearings are always held at the same time as a Mapp, Huntley, or Wade hearing