Pre-trial procedures are critically important components of the justice process because the great majority of all criminal cases are resolved informally at this stage and never come before the courts. They include the pre-arrest investigation, arrest, booking, the decision to prosecute, the initial appearance before local magistrate, preliminary hearing or grand jury hearing, arraignment on the information or indictment, and pre-trial motions. The essence of the due process safeguards at the pre-trial stage is the equalization of the ambushing powers of the government and concern for reasonable protection the defendant's rights. What might therefore seem like a tilting of the procedural scale in favor of the suspect or the accused is nothing more than an effort by the courts to compensate the defendant for the fact that the enormous investigative powers of the police department are invariably placed at the general disposal of the prosecutor.

Right to Be Free from Unlawful Arrest

Right to Individual Privacy

Right to Know Charges

Right Against Unwarranted Criminal Charges

Right Against Excessive Bail

Privilege Against Self-Incrimination

Right to Counsel

Protection Against Adverse Pre-Trial Publicity



The criminal suspect's first meaningful due process protection is safeguard against unlawful arrest. The general rule is that arrest can be made upon issuance of the arrest warrant. To prevent possible abuses of the power of arrest, the law requires an arrest warrant to be issued by a magistrate or other duly authorized official upon a sworn statement that a crime has been committed and that there is probable cause to suspect that the prospective arrestee was responsible for the commission.

Like many other constitutional protections afforded to the suspect, the arrest with warrant is not an absolute rule. It may yield to overriding public security interests or to compelling law enforcement considerations.

The criminal suspect's constitutional safeguard against unlawful arrest includes the freedom from unwarranted stopping and questioning by a police officer. However, in what amounts to a permissible concession to the reasonable demands of law enforcement, the law permits the police practice of stopping for questioning any citizen who, under the given circumstances, is deemed by the police officer to be behaving suspiciously.

Affidavit in Support of Criminal Complaint, Arrest Warrant and Serch Warrant

Arrest Procedures

Powers of Arrest and Limitations (Without Warrant)

Legal Information: Arrests and Searches Form

Arrest-Bench Warrant/Capias

Warrant for Arrest



The right to privacy is based upon the idea that citizens in free societies should be "left alone" from government interference. Although the Constitution does not specifically use the term privacy, the Fourth Amendment provides protection of this right by forbidding unreasonable searches and seizures and by requiring that any search warrant be based on probable cause.

Search is any governmental intrusion into a person's reasonable and justifiable expectation of privacy. It is not limited to homes, offices, buildings, or other enclosed places. All searches must be limited to the specific area and specific items described in the warrant. General searches are unconstitutional and never legal.

There are several exceptions to the warrant requirement. They are search with consent, search incident to lawful arrest, and search under exigent circumstances.

Electronic surveillance is a form of search and seizure and as such is governed by the Fourth Amendment. To obtain electronic surveillance warrant, probable cause that a person is engaging in particular communications must be established by the court, and normal investigative procedures must have been already tried.

Any evidence obtained by the government in violation of the Fourth Amendment is not admissible in a criminal prosecution to prove guilt.

The Fourth Amendment protection against unreasonable search and seizure applies only to governmental action and not to the action of private persons.

Search Warrant

Search and Seizure Guide

Understanding Search and Seizure Law

Search and Seizure (Court TV's Transcripts)

Historic Supreme Court Decisions



The right to know charges, referred to as the right to notice, derives from the Sixth Amendment, which provides that "in all prosecutions the accused shall enjoy the right to be informed of the nature and cause of the accusation." Over the years this right has been interpreted by the courts to mean the following: that the defendant shall be informed about the form in which the charges have been brought, that the charges will be spelled out with clarity and particularity, that a vague and indefinite charges will not suffice, that accusations that are formulated in a manner that does not adequately inform the defendant of the charges against him/her shall be dismissed as being formless and obscure.

Directly related to the right to notice is the judicially created doctrine of void for vagueness. It means that criminal charges filed because of the violation of the vague or insufficiently specific criminal statute will be dismissed and such statute will be declared void for vagueness.

The defendant must be informed of the criminal charges filed against him/her during the first court appearance. This appearance must take place within maximum of 48 hours following arrest. As a minimum standard of due process at the commencement of the first court appearance, the judge must inform the defendant of: the complaint against him; any affidavit filed therewith; his right to retain counsel; his right to request assigned counsel if he is indigent; the general circumstances under which he may secure pre-trial release; the right to remain silent and that any statement he makes may be used against him.



The right against unwarranted criminal charges derives from the Fifth Amendment, which provides that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." The purpose of this pre-trial protection is to prevent arbitrary or otherwise groundless prosecution. Criminal defendant cannot be tried before it has been determined that criminal charges that the state filed against him/her have merits and justify trial. Procedure used to make this determination is called probable cause hearing and may have the form of grand jury hearing or preliminary hearing.

A grand jury is ordinarily comprised of group of randomly selected individuals (sixteen to twenty-three of them) who theoretically represents a county. To qualify to serve on a grand jury, an individual must be at least eighteen years of age, a U.S. citizen, and a county resident for one year or more and possess sufficient English-speaking skills for communication. In making its determination, grand jury relies on testimony of witnesses and evidence presented by the prosecutor. After examining the evidence and the testimony of witnesses, the grand jury decides whether probable cause exists for the prosecution. If it does, an indictment is affirmed. If the grand jury fails to find probable cause, criminal charges are rejected and cannot be filed again.

The preliminary hearing is employed in about half the states as an alternative to the grand jury hearing. The preliminary hearing is conducted before a magistrate or lower court judge. After hearing the evidence, the judge decides whether there is sufficient probable cause to believe that the defendant committed the alleged crime. If the answer is the affirmative, the defendant is bound over for trial. When the judge does not find sufficient probable cause, the charges are dismissed, and the defendant released from custody.



Bail is money or some other security provided to the court to ensure the appearance of the defendant at every subsequent stage of the criminal justice process. Its purpose is to obtain the release from custody of a person charged with a crime.

The Eighth Amendment does not guarantee constitutional right to bail, but rather prohibits excessive bail. However, the Supreme Court interpreted the institution of bail in case of Stack v. Boyle (1951) as a traditional right to freedom before trial that permits unhampered preparation of a defense and prevents the criminal defendant from being punished prior to conviction.

The Court held that bail is excessive when it exceeds an amount reasonable calculated to ensure that the defendant will return for trial.

Under federal law a person accused of a crime, except where the punishment is death, may be admitted to bail not only after arrest and before trial but also after conviction and before imprisonment.

Excessive Bail

Bail Jumpers



An uncompromising principle of procedural due process in American law is the privilege against compulsory self-incrimination. The root of this privilege is the Fifth Amendment, which provides that "no person shall be compelled in a criminal case to be a witness against himself."

Over the years the courts the courts have given the following interpretation to this Fifth Amendment protection: the privilege is limited to criminal matters only, the privilege can be claimed not only by the defendant but also by a witness, the privilege is strictly personal and as such cannot be claimed on behalf of someone else, it is available only to natural persons and never to fictitious (juridical) persons such as corporations, unions, etc.

The right of the defendant to refuse to testify is so fundamental to the American constitutional system that the U.S. Supreme Court has held that the exercise of this privilege should not be taken as being the equivalent to a confession of guilt or to a conclusive presumption of perjury.

A defendant or a witness may voluntarily waive his/her privilege against self-incrimination by taking the witness stand. However, once a person has voluntarily testified to incriminating facts, he/she may not plead the privilege with regard to further testimony on the subject. He/she also has the duty tom testify truthfully, subject to prosecution for perjury.

The impression that one may get is that, under American law, the defendant has no duty to incriminate himself. But this right is not and never has been intended to be absolute. The defendant may be forced to appear in line-up, give a blood sample, submit to photographing, give handwriting samples, submit to fingerprinting, and repeat certain words or gestures.

In addition to the Fifth Amendment privilege against self-incrimination, statutes may provide that certain communications between the defendant and other persons are privileged and therefore disclosure may not be compelled or coerced (husband-wife, attorney-client, priest-penitent, doctor-patient, psychologist-client, accountant-client, journalist-source).

A Guide to the Privilege Against Self-Incrimination

The Paradox of Auxiliary Rights:The Privilege Against Self-Incrimination and Right to Keep and Bear Arms

Historic Supreme Court Decisions



The Sixth Amendment guarantees defendants the right to counsel during criminal proceedings. This right is critical to protection of other constitutional rights of the accused and to his/her defense against the charge.

The right to appear with one's counsel applies to every critical step of the proceedings, i.e., not only to trial stage, but also to the pre-trial proceedings. It begins as soon as one is questioned about the crime. The decision Miranda v. Arizona (1966) requires a suspect to be told about the right to an attorney when he/she is placed under arrest and before interrogation.

A defendant has an unqualified right to the assistance of his own counsel in connection with any kind of offense, including traffic offenses. The rule in federal courts is that in all criminal prosecutions, including prosecution for petty offenses, every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of criminal proceeding - from his/her initial appearance before the U.S. magistrate or the court, through appeal. In state criminal prosecutions an indigent defendant is entitled to an appointed counsel not only for capital crimes, but also for non-capital felony cases, as well as in misdemeanor cases, as long as the possible punishment upon conviction is imprisonment for any period of time.

The defendant has the right to proceed per se, i.e., to represent him/herself, as long as he/she waives the right to counsel voluntarily and intelligently.

A reviewing court may set aside a conviction if it is convinced that the counsel was so grossly incompetent as to support the inference that the defendant has not had at least a minimum measure of representation.

Right to Counsel

Invoking Right to Counsel

Office of the Public Defender

Historic Supreme Court Decisions



Protection against adverse pre-trial publicity is one of the key ingredients of the right to a fair trial. In an adversary system of trial by jury if the defendant is to receive a fair trial it is essential that adverse pre-trial publicity of his/her case in the mass media should be prevented. However, the defendant's right to a fair trial is in direct competition with the First Amendment right of newsman to publish whatever they deem to be newsworthy information.

The goal is not to prevent all pre-trial publicity. Rather it is excessive pre-trial publicity that damages most the chances of a fair trial. When this happens, the following pre-trial remedies are available to the defendant: a voir dire examination of prospective jurors, the right to challenge jurors either for cause or peremptorily, motion for continuances (postponement or adjournment to a future date) and motion to change venue.

Where it is found that there was excessive adverse pre-trial publicity, any conviction so secured can be deemed violation of due process of law.