An Overview Of The Different Types Of Pretrial Hearings
Throughout my career as both a prosecutor and a defense attorney, I have learned that even the earliest steps in the criminal justice process can be incredibly important. Issues such as quickly appearing before a judge, securing bail, and discovering how strong or weak a case is can be invaluable as the case proceeds.
Some of the more common questions I have received are as follows:
- How quickly will I get into court after I am arrested?
- How do I get a bond?
- I think the case should be thrown out. Is there a way we can see what kind of case they have early on?
In response to these questions, I will explain in greater depth three pretrial issues: 1) the first appearance hearing; 2) bond hearings; and 3) the commitment-otherwise known as the probable cause-hearing.
The First Appearance Hearing
A first appearance hearing is a person's first chance to appear before a judge after his arrest. The purpose of the first appearance hearing, essentially, is to inform the accused of the charges against him and to advise him of his basic rights.
Rule 26.1 of the Uniform Rules of the Superior Courts of the State of Georgia states that at the initial appearance, the judge shall:
- inform the accused of the charges;
- inform the accused of his Miranda rights, namely of his right to remain silent and his right to an attorney, either retained or appointed;
- determine whether the accused needs a court-appointed attorney and informs him the process in how to obtain one;
- inform the accused of his right to have a commitment (probable cause) hearing, unless the accused posts bail, which waives his right to have that hearing;
- in the case of a warrantless arrest, make a probable cause determination;
- inform the accused of his right to a grand jury indictment or accusation in felony cases;
- inform the accused when the grand jury will next convene;
- inform the accused of his right to a jury trial;
- inform the accused of his right to waive those rights and plead guilty to the charge(s); and
- set bail unless the offense is only bailable by a superior court judge, and if it is, inform the accused of that.
The Bond Hearing
Bail operates to ensure a defendant appears for future court appearances. If bail is initially denied, an experienced attorney should ask the court to schedule a hearing to address the issue of setting a bond for that defendant. Courts look at several factors when analyzing whether to grant bail and in what amount. In the 1993 case Ayala v. State, the Georgia Supreme Court concluded that the four factors that a court should look at are whether the defendant:
(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required; (2) Poses no significant threat or danger to any person, to the community, or to any property in the community; (3) Poses no significant risk of committing any felony pending trial; and (4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.
Georgia law has now codified that rule. Georgia Code 17-6-1(e) provides that:
As a court weighs and analyzes these factors, a judge may either grant bail or deny bail depending on the unique circumstances of the case. An experienced attorney can present the best case possible to increase the likelihood that a bail is granted.
The Commitment Hearing
The purpose of this hearing is to determine:
- 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; and
- whether the charges brought are appropriate to the acts committed and whether the acts constitute a felony or a misdemeanor.
In a commitment hearing-otherwise known as a probable cause or preliminary hearing-the court is not concerned with whether or not the defendant is guilty of the offenses he is charged with under a 'beyond a reasonable doubt burden of proof' standard. The court's role is simply to determine if there is enough evidence to suspect the guilt of the defendant and to require him to appear and answer the charges at a future date.
The Process
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 to the grand jury so that it can be formally charged via an indictment. Presentment to the grand jury may be waived by the defendant, or it may be waived by statute for less severe crimes. However, in Georgia, defendants accused of felonies have a right to indictment by grand jury.
An accused who either has no bail bond or is unable to afford bond and who requests a preliminary hearing is entitled to a hearing. However, the posting of bail bond constitutes a waiver of the right to a preliminary hearing.
Rule 26.2 of the Uniform Rules of the Superior Courts of the State of Georgia provide that at the commitment hearing, the following procedures shall be used:
- The rules of evidence shall apply except that hearsay may be allowed;
- The prosecuting entity shall have the burden of proving probable cause; and may be
represented by a law enforcement officer, a district attorney, a solicitor, a private attorney or
otherwise as is customary in that court; - The accused may be represented by an attorney or may appear pro se; and
- The accused shall be permitted to introduce evidence.