Thursday, July 23, 2009

Forcing the hand of the state

In Texas the state has two ways in which to pursue felony charges against an individual. The state can send the case to a grand jury who, after listing to what the prosecutor has to say and considering the evidence put before it (which may or may not include any evidence presented by the accused), will choose either to issue an indictment (a true bill) or not to issue an indictment (a no bill).

The other method is by an examining trial. If you've ever watched the old Perry Mason then you've seen an examining trial. In an examining trial a judge hears evidence and decides whether or not there is probable cause for continuing to hold the accused for trial.

The accused in a felony case has the right to request an examining trial in his case. That being said, there are very few examining trials held because once the accused submits his request, the District Attorney's first instinct is to put the case before a grand jury. Once the grand jury indicts there is no need for an examining trial.

In a slow-moving case in which the accused is being held in custody awaiting indictment, a request for an examining trial is a very effective method of forcing the state's hand. In most cases the state would rather avoid an examining trial because the proceeding allows the accused to "pin down" the state's witnesses to a story without the state having time to "woodshed" them properly.


Unknown said...

We should request examining trials more often!

Paul B. Kennedy said...

Thanks for the comment.

In two separate cases in which I filed requests for examining trials in the past week, one was no-billed and I received a reduction to a misdemeanor in the other.

As usual, good things happen when you stand up and say "I'm ready."