4. The arraignment: the preliminary hearing

At the first hearing in the Court a charge will be read by the judge and the accused will be asked to enter a plea of guilty or not guilty. That hearing is called an Arraignment and it often occurs before the accused has had a chance to obtain legal counsel. If such is the case, the court will grant a continuance or enter a plea of not guilty and ask the accused to return on a particular date with legal counsel. If the accused advises the court that he or she can not afford private counsel, the court will direct them to the public defenders office. Quite often a public defender is permanently assigned to the court room and he or she will discuss the matter with accused and make an appointment to obtain the public defender who will represent the accused.

If the person accused wishes to plead guilty, the court is usually reluctant to accept such a plea before the defendant has had a chance to consult with legal counsel. If the defendant insists, the court will either set another hearing date or will ask the defendant a long series of questions making the accused understand what rights being waived if a guilty plea is entered. Very, very few people plead guilty at this stage since even if they intend to plead guilty (called "pleading out"), they need to negotiate with the district attorney as to fines or length of jail time before giving up their rights. See below.

If the crime alleged is a relatively minor one, a misdemeanor, then a trial date is set at the arraignment, usually preceded by a court date to discuss resolving the matter by pleading out to a lesser offense. "Plea Bargaining," is discussed below and results in the resolution of well over ninety percent of criminal charges. The trial must be set within a short period of time due to the Constitutional right to a speedy trial and most states require the trial to be heard within two to four months or the State will face having the entire case dismissed. Often the defendant will want additional time to prepare so will waive the right to a speedy trial.

If the crime charged is relatively minor, it is termed a misdemeanor and the court will set a trial date and pretrial hearing (to discus settlement) at the arraignment. However, if the matter charged is a felony, namely a serious crime, then in California and most states there is a preliminary hearing before the case is set for trial and at that preliminary hearing the State must present sufficient evidence to show the Court that there is reason to believe that a crime has been committed before a trial can be set in the Superior Court. This is the chance for defense counsel to cross examine the key witnesses of the State and often is the best discovery allowed the defense in a criminal matter. In criminal cases, there are no depositions or interrogatories allowed either side, unlike a civil trial. While the court at a preliminary hearing is allowed to dismiss the matter if the court determines that the State does not have sufficient evidence to send the matter to trial, or to reduce the charges to a less serious crime, in reality very, very few cases are so dismissed or reduced in charge: almost all are set for trial in the Superior Court, thus the preliminary hearings is normally seen by the defense counsel as a chance to investigate the State's witnesses under oath while at the same time, to reduce being forced to give away the case, most district attorneys put on the least case they can while still convincing the court to send the matter to trial in Superior Court.

Assuming the Court feels there is sufficient evidence to "hold to answer" (the legal term for being sent to Superior Court for trial) the defendant will be assigned a date for trial in Superior Court usually a few months away. Alternatively, the Court can conclude that the evidence warrants a lesser charge, one that should be tried in municipal court, and send the matter to trial there. A transcript is made of the preliminary hearing and the testimony taken there is often very valuable for the defense counsel in preparing the defense case.

While defendants are free to call their own witnesses at the preliminary hearing, it is seldom done. The burden of proof is so low to hold the defendant to answer that unless the defense feels the case is overwhelmingly in favor of the defendant, the defense will waive the right to call witnesses. This also relates to the discovery issue of a criminal case.