OVA: Pre-Trial Phase

 
 
PRE-TRIAL PROCEEDINGS
 

Many important events occur in court following arraignment of the accused and prior to the ultimate disposition of the case.  The defendant may plead guilty or, more often, may agree to plead guilty if the charges are downgraded or lessened to an offense with a smaller penalty during plea negotiation.  The court may decide that the defendant is mentally ill or mentally disabled and does not have the ability to understand legal proceedings and, as a result, cannot be tried.

 

The common ways in which the case can be resolved during the pre-trial stage of a criminal prosecution include:

 

·

The State’s attorney may decide that the defendant did not break the law, or that the evidence is insufficient, and will dismiss the case.  If the case is dismissed, the defendant will not be prosecuted on the criminal charges.

·

The State’s attorney may “Nolle” (NOL-ee) the charges against the defendant.  When a charge is “Nolled” the case is temporarily suspended.  The State’s attorney may need time to gather more evidence or to get people to testify in court.  If the evidence or witnesses do become available, the State’s attorney can start prosecuting the case again.  The case can be re-opened at any time over the next 13 months.  If it is not re-opened during this time period, it is automatically dismissed.

·

Many cases are plea bargained.  In exchange for a plea of guilty to one charge, the State’s attorney agrees to drop other charges against the defendant.  Sometimes the criminal charge is changed to a crime that has a less severe punishment, in exchange for a guilty plea.  Plea bargaining is often used by the State’s attorney when the evidence against the defendant is not very strong.  Some cases involving children are plea bargained because the parents do not want the child to testify.  If the defendant pleads guilty there will not be a trial.  However, the punishment will be the same as if the defendant were found guilty in a trial of the offense(s) specified in the plea bargain agreement.

·

In some cases, the defendant may apply for a diversion program.  If accepted by the judge, the defendant will be required to attend classes, coounseling sessions, substance abuse evaluation and/or treatment, or community service.  If the defendant successfully completes the program, the case will be dismissed and the criminal record of the incident erased.  You will be notified if the defendant in your case has applied for the program and you will be allowed to let the court know if you think the application should or should not be granted.

 

Plea Negotiation

 

During the pre-trial stage of a criminal prosecution, there may be many discussions and meetings had about the case involving the prosecutor, the defense attorney, the court-based victim services advocate and the judge. The focus of these discussions and meetings, which typically occur on dates the case is scheduled for court, is on the possibility of resolving the case short of going to trial.

 

Most cases in the criminal justice system end during plea negotiation.  A plea agreement is an agreement between the State's attorney and the defense attorney in which the defendant agrees to plead guilty to a crime and the State's attorney agrees to do something for the defendant.  Typically, the State's attorney agrees to drop (i.e., nolle or dismiss) some of the charges against the defendant or agrees that the defendant will be sentenced to a shorter (or no) time in prison.  Sometimes, plea agreements include a promise by the defendant to give evidence against other defendants in the case.

 

Plea negotiations happen in almost every case and are a necessary part of the process for a variety of reasons.  First, cases end much faster if they are successfully plea bargained.  Also, more cases can be processed in light of a busy and crowded court docket.  Trials are very time-consuming.  With limited resources, all but a very small number of criminal cases can actually go to trial.  In fact, the vast majority of criminal cases end with a plea bargain.

 

The State's attorney considers several factors when negotiating with a criminal defense attorney, including the type of crime involved, the prior criminal record of the defendant, the impact the crime had on the crime victim, and the strength or weakness of the state's case if the case were to go to trial (where the State's attorney would have the heavy burden of proving "beyond a reasonable doubt" that a crime was committed and that the defendant committed the crime).

 

Plea negotiations are an important part of the process for many reasons.  A plea before trial can be a guarantee that a defendant will be punished for the crime in some way.  It may also mean that victims and other witnesses will not have to suffer the trauma of testifying in court. In addition, these cases are typically handled much faster which means defendants are punished sooner and victims can get on with their lives sooner.

 

Although the judge has the final say on any plea agreement, the crime victim has a legal right to be heard by the judge regarding whether or not the plea agreement should be accepted or rejected by the court.

 

 

NOTE

 

Crime victims have a right to be notified of the date, time and place of the court proceeding at which the court will decide whether to accept or reject any plea agreement reached between the state and the defendant.  To receive such notice, the crime victim must request to receive such notification from the state’s attorney and indicate that s/he wishes to make or submit a statement to the court regarding the plea agreement.  The state’s attorney may request that the victim submit a stamped, self-addressed postcard for the purpose of communicating such notification.

 

In addition, the crime victim has the right to receive from the prosecutor the terms and conditions of any plea agreement reached between the state and the defendant prior to the plea hearing.  The crime victim is required to request to receive such information from the prosecutor in writing.

 

To help ensure that your right to receive timely notification of the plea agreement hearing and the terms and conditions of any plea agreement you should consider using the OVA's “Notice of Intent to Exercise Crime Victim Rights” form.  This form should be completed and delivered to the state attorney’s office and the court clerk's office in the court where your case is being prosecuted.  This form will serve to notify the court and the state's attorney handling the case that you intend to assert your rights as a crime victim including the right to be notified of the plea hearing and the terms and conditions of any plea agreement reached between the state and the defendant.

 

The right to attend and to be heard at the plea hearing is separate from the right to attend and to be heard by the court regarding the sentencing of the defendant.  You have the right to attend and be heard at both proceedings.  In terms of sequence, the court’s consideration of the plea agreement will always occur prior to sentencing the defendant.  In many cases, both events occur in sequence during the same hearing while in other cases the sentencing of the defendant may occur several weeks following the court’s decision to accept the plea agreement. 

 

 

Diversion

 

If the defendant is a first time offender, it is likely that his attorney will seek to have his client accepted into a diversionary program so that, if the defendant successfully completes the program, s/he can avoid a criminal record at the final disposition of the case.  If the defendant is ineligible for one of the diversionary programs, the defense attorney may consider negotiating a plea agreement so that the case does not have to go to trial.

Click here to see a list and brief description of pretrial diversionary programs in the state of Connecticut.

 

Pre-trial Motions and Hearings

 

Depending on the nature and complexity of the case, there may be one or more (sometimes many) pre-trial hearings on a variety of constitutional issues (confessions, searches and identification, etc.).  The issues are usually presented to the court through written "motions" (e.g., Motion to Suppress Evidence, etc.) filed with the court and scheduled at a later date for oral argument and, at some time in the future after oral argument, a decision on the issue(s) will be rendered by the judge. 

 

In addition to the above, there may be a number of pre-trial motions filed by the defendant and/or the State.  Pre-trial motions are requests from the defendant or State's attorney for rulings from the judge on specific legal issues.  The attorneys are allowed to argue their cases for or against the motions that have been submitted to the court.  Some examples of pre-trial motions are motions to keep evidence out of the trial (suppression of evidence), substitution of a judge, change of venue (where the case will be prosecuted), or appointment of expert witnesses.

 

Other Pre-trial Activity

 

The parties may also conduct discovery during the pre-trial phase to obtain information that is held by the other party (usually the state). The judge may hold hearings to determine whether certain evidence will be admitted or suppressed at the defendant's trial; whether there is some legal reason why the defendant should not be tried at all; or decide other ground rules for trial.

 

Continuances

 

During the pre-trial stage of the criminal justice process, there will likely be a number of requests for a continuance made by the defense attorney or the state’s attorney in order to engage in pre-trial activities including, but not limited to, conducting further investigations; interviewing witnesses; testing and/or analyzing evidence; reviewing discovery materials; retaining, interviewing and preparing expert witnesses; filing a variety of motions with the court; making application for a diversionary program; and negotiating and fine-tuning a proposed plea agreement.

         

Continuances are a common source of delay in the courts and an ongoing source of frustration for crime victims.  A motion for continuing a case to a future date may be made at almost any step of formal court proceedings.  The motion for continuance may be granted or denied by the judge based on his/her decision about the validity and necessity of the request.  Repeated granting of requests for a continuance in a case can often mean a delay of a year or more before the case actually comes to trial.

 

 

NOTE

 

As the victim of a crime, you have the right to a timely disposition of the case following an arrest of the accused, provided no right of the accused is violated. Although the precise meaning of this right has not yet been decided by Connecticut courts, the Office of the Victim Advocate believes that this right includes the right to be heard with respect to the granting of continuances in criminal cases. 

 

It should be noted that continuance requests are often made by both the prosecution and the defense for legitimate purposes and are often necessary to reach the desired result (i.e., justice) in the criminal case.  It should also be noted, however, that the repeated granting of continuances can be a source of great frustration for crime victims.  Therefore, when determining whether to grant a continuance request, the court should take into consideration the victim’s schedule and availability to minimize the period in which the victim must endure the responsibilities and stress often associated with participating in the criminal justice process.   

 

If you believe that the number of continuances granted in the case has become excessive you should bring this to the attention of the court-based victim advocate or to the prosecutor directly.  If you remain dissatisfied, you should consider filling out the OVA form entitled “Motion for Notification and Opportunity to be Heard Regarding Requests for Continuance” and submit the completed form to the court clerk and the state attorney’s office at the court where the case is being prosecuted.

 

 

When is the Pre-Trial Stage Complete & What Happens Next?

 

If the parties reach an agreement through plea bargaining, the defendant will not go to trial.  Instead, the case will proceed to a plea hearing.  (See the TRIAL/PLEA section on the previous page of this website for additional information).  If, however, the parties are unable to reach such an agreement, the case will proceed to the next phase and will be put on the “trial list.”  

 

Unless the case is an extraordinary case, or unless a motion for a speedy trial has been filed by the defendant and granted, the case will go to the bottom of the trial list, behind all cases already waiting on the trial list.



Content Last Modified on 1/25/2007 9:41:33 PM