3. Pretrial activities in a criminal case

After the arraignment, there's a pretrial period. During this time, the prosecutor and the defendant's lawyer share information (called discovery). There are court dates to try to reach an agreement or make plans for trial. Either side can also ask the judge to make a decision about the case (file a motion). In a felony case, there will be a preliminary hearing.

on this page


Discovery is when the prosecutor and the defense lawyer share information and evidence

There are laws that say what each side must share and when. This is a general overview of the laws.

Typically, the prosecution gives the defense lawyer the initial discovery at the arraignment. It often includes the police report along with other materials, like photographs or lab reports. They must continue to share this information as they collect it.

The prosecution must give the defense any information it has that would hurt the prosecution's case. This is called exculpatory evidence. In general, this is evidence that might show the defendant is innocent or raises a question about the credibility of a witness.

As a trial date gets closer, the defense must share information about what they plan to use at trial. For example, the names and contact information of witnesses they plan to have, along with any recorded statements or reports from the witness. 

talking alert icon

Protecting witnesses' information. The defendant's lawyer cannot share the witness' telephone number or address with a defendant, their family, or anyone else unless they work for the lawyer to help on the case (like their investigator). Penal Code section 1054.2

Settlement agreements

The two sides try to settle the case

Generally, after the arraignment, the judge will set another court date. The court date is called different things. It may be a pretrial conference or a settlement conference. These are times for the lawyers to discuss if they can reach a settlement agreement (an agreement to end the case). The judge may meet with them as well.

One common way to settle a case is called a plea agreement, meaning the defendant agrees to plead guilty or no contest in exchange for a certain sentence or some charges being dropped (dismissed).

There are many different types of agreements.

Victims can ask to be notified about any agreements. The defendant's lawyer must tell the defendant about any offers the prosecutor makes. It is the defendant's decision whether to accept any offers. 


Motions are when either side asks the judge to make a decision about a legal issue in the case 

Either side can file a motion. It is the defendant's lawyer's job to make sure their client's rights are protected, so they may file a motion to ask a judge to decide if the government did not follow or is not following the law.  

  • Example: Defense files Motion to suppress

    The defense argues that the police violated the defendant's rights during a search of the defendant's home. The defense asks the judge to not allow the prosecutor to use any evidence gathered during the search (files a motion to suppress).

    At a hearing, the officer who searched the home testifies. The judge listens to testimony and both sides' legal arguments. Then the judge decides if the police violated the defendant's rights. If so, the judge decides if the prosecutor can use any evidence collected during that search.

Preliminary hearing (for felony cases only)

A judge decides if there's enough evidence for the case to go forward

If charges are felonies, there will generally be a preliminary hearing. The purpose of a preliminary hearing is for a judge to decide if there is enough evidence for the case to move forward. It is not to decide if someone is guilty.

At a preliminary hearing, the prosecution presents the main evidence that supports the charges they filed. The defense will ask the prosecution witnesses questions. The defense can, though often does not, have their own witnesses.

At the end of the hearing, the judge decides if there's enough proof for the case to go to trial. If the judge decides there is enough proof, the defendant is "held to answer." 

The prosecutor files new charges based on the judge's decision

The prosecution then files charges in a document called an Information. The prosecutor can only include charges that the judge said they had enough proof to move forward with. Then, the defendant will have a second arraignment based on the charges in the Information. They will then get more court dates, including more court dates to try to settle the case and to discuss when to set a trial. 

When a trial happens depends on whether the defendant waives time for their trial. A trial must start within 60 days of the arraignment on the Information. Penal Code section 1382. The defendant can waive this. They should get advice from a lawyer before waiving time.

What's next?

If the two sides don't reach an agreement or the judge does not dismiss the charges (drop them), then the case moves forward to trial.

success alert banner:

Have a question about Criminal?

Look for a "Chat Now" button in the right bottom corner of your screen. If you don’t see it, disable any pop-up/ad blockers on your browser.