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Basic Criminal Procedure in Minnesota

Basic Criminal Procedure: Arraignment to Pretrial


The formal arraignment is usually the first step after arrest. Arraignment is a hearing where the defendant is informed of the charges the prosecution intends to pursue. The defendant should also be informed of his or her rights.

The judge will release the defendant, set bail, or deny bail and remand the defendant to jail for holding until the preliminary hearing. Bail is the money the defendant or an agent uses to secure the release of defendant. Bail for minor criminal charges is usually an amount predetermined by law. In more serious criminal charges, the amount of bail should be set by the judge based on circumstances particular to the defendant. If the defendant is wealthy, for example, the judge might set bail higher. Though the Constitution guarantees the right to reasonable bail, a court may deny bail in cases charging murder or treason, or when there is a danger that the defendant will flee or commit further crimes.

Bail can be posted by a bail-bond, cash, or property. If by bail-bond, the bail-bondsman will charge a service fee amounting to a percentage of the total bond amount. If bond is set by the court at $10,000, the bonding company may charge $1000 fee. The money paid as a service charge to a bonding company is not refundable.

If bail is available but the defendant cannot afford either to pay it or to pay a bondsman, then the defendant will remain in custody until the preliminary hearing (or sometimes the trial). If the defendant posts bail and does not appear at hearings or trial, then the defendant may forfeit the money or property used to post bail.

Additionally, if the defendant fails to appear at trial, he or she may be tried and convicted in absentia. A defendant need not be present to be convicted.

The defense attorney and the prosecutor may discuss the case with the judge during the arraignment. Information about the prosecutor’s case can be obtained at this bench conference. A plea bargain may be discussed. Occasionally, charges may be dropped or reduced.

Felony charges will probably not be dropped at the arraignment. The prosecutor is likely to want to proceed at least to the preliminary hearing in the cases of felony charges.

Preliminary Hearing

The prosecution presents evidence at the preliminary hearing in an attempt to show the judge that the case should be tried. The criminal defense attorney will be able to cross-examine any witnesses the prosecution offers. If the prosecution does not yet want to expose its case, evidence, and witnesses to the defense, then the prosecutor might elect to proceed to the grand jury.

Grand Jury

Minnesota grand juries are not identical to federal grand juries, but they each fulfill a similar function. A grand jury is comprised of a number of citizens who review evidence against individuals presented by the prosecutor and determine whether or not the evidence supports indictment. An indictment is a formal accusation by the grand jury against a criminal defendant.

If a defendant is arrested, the criminal defense attorney should be notified when the prosecutor intends to present the State’s case to a grand jury.

The defendant has the right to testify before the grand jury, but the criminal defense lawyer requires consent to supply additional witnesses. The criminal defense lawyer cannot question or objection and cannot be present when any witnesses testify on behalf of the defendant.

Some cases are presented to the grand jury before the defendant is arrested. In such cases, the criminal defendant might not (and will likely not) be notified that the case is going before the Grand Jury. The criminal defendant will likely not be allowed to testify or present opposing witnesses. If an indictment is issued in this manner, the defendant will be arrested and jailed until the arraignment. If the grand jury does not indict the defendant, then the case is over.

Plea Bargain

A plea bargain is a deal between the defense and the prosecution to dispose of the case without going to trial or, sometimes, without even reaching the preliminary hearing stage. The choice to plead or not to plead can only be made by the criminal defendant. The defense attorney will evaluate the prosecutor’s case and give the defendant advice about whether the defense can win at trial. When the defendant pleads guilty, he or she cannot easily later relent. Very few guilty pleas are withdrawn once finalized at the trial level.

Deciding whether or not to plead can be difficult. Admitting guilt when innocent is not pleasant, but some defendants plead guilty because their hopes of winning are so low that they will take the plea and know the terms of the sentence instead of risking what could amount to uncertain and stiffer punishment. Losing at trial generally results in penalties greater than those offered in the plea bargain. There are no guarantees of winning at trial, even if the defendant is innocent.

Pretrial Procedures

If the defendant has entered a not-guilty plea, the prosecution and defense will prepare for trial. The defendant has the right to a speedy trial, but that right does not guarantee that the defendant will not have to wait for months before trial.

The prosecutor and defense attorneys will use the intervening time to request discovery. In simple cases, this may include little more than a police report and blood test. In more complex cases, this can include providing each side with witnesses and their contact information, copies of statements and reports by the defendant, witnesses, and experts, and lab work and other study of physical evidence.

Beyond the discovery process, the majority of any other activity will come in the form of pretrial motions. Motions can made both by the defense and the prosecution and can include motions to suppress or exclude evidence and issues and motions to dismiss charges based on various evidentiary or procedural developments.


By this point, the criminal defendant should have hired a criminal defense attorney. Trial procedure is complicated. Defendants are allowed to represent themselves, but criminal defense experts and judges will almost universally recommend that the prudent criminal defendant hire a lawyer.

Call or contact criminal defense lawyer Patrick K. Oden for a consultation about your criminal charges and defense.

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