18.4 Commencement of Proceedings, Misdemeanor Practice, Right to Counsel, Grand Jury & Disclosure
Key Takeaways
- NALS lists commencement of proceedings, procedure in misdemeanor cases, right to counsel, grand jury, disclosure by prosecutor, disclosure by defense counsel, and motion in limine as separate Criminal Procedure topics in Part 4.
- A warrantless arrest requires a judicial probable cause determination promptly, generally within 48 hours, while an arrest warrant supplies that determination in advance.
- The Sixth Amendment right to counsel attaches at the initiation of adversary judicial proceedings and applies to every critical stage; no defendant may be imprisoned for any offense without counsel or a valid waiver.
- The Fifth Amendment grand jury indictment requirement binds the federal government but has never been incorporated against the states, so most states may proceed by information after a preliminary hearing.
- Brady requires the prosecution to disclose evidence favorable and material to guilt or punishment, and Giglio extends that duty to impeachment evidence about government witnesses.
18.4 Commencement of Proceedings, Misdemeanor Practice, Right to Counsel, Grand Jury & Disclosure
[!NOTE] NALS PP Exam Blueprint Focus: The Part 4 Criminal Procedure list is the longest single enumeration in the PP outline, running through nineteen named topics from commencement of proceedings to guarantees of justice for the accused. This section covers the pretrial sequence; the following two sections cover trial, sentencing, and post-conviction relief.
Commencement of Proceedings
| Step | What happens | Standard |
|---|---|---|
| Complaint | A sworn written statement charging an offense, filed with a magistrate | Probable cause |
| Arrest warrant | Issued by a neutral magistrate on the complaint and supporting affidavit | Probable cause, determined in advance |
| Warrantless arrest | Officer arrests on probable cause observed in the field | Requires a prompt judicial probable cause determination, generally within 48 hours |
| Booking | Administrative processing, identification, inventory | — |
| Initial appearance | Defendant informed of charges and rights; counsel addressed; bail set | "Without unnecessary delay" |
| Preliminary hearing | Adversarial probable cause hearing before a judge | Probable cause; defense may cross-examine |
| Charging instrument | Indictment returned by a grand jury, or information filed by the prosecutor | Probable cause |
| Arraignment | Formal reading of the charge; plea entered | — |
At the initial appearance the court advises the defendant of the charges, of the right to remain silent, and of the right to counsel; appoints counsel or begins the appointment process; and addresses release conditions. Under the federal Bail Reform Act framework and its state analogues, release is on personal recognizance or unsecured bond unless the court finds that conditions are necessary to assure appearance and community safety, with detention available for specified categories after a hearing.
A preliminary hearing and a grand jury are alternative screening mechanisms. A defendant indicted by a grand jury is generally not entitled to a preliminary hearing, because probable cause has already been found.
Procedure in Misdemeanor Cases
Misdemeanor practice is compressed, and several felony-track steps drop away.
| Feature | Felony | Misdemeanor |
|---|---|---|
| Charging instrument | Indictment or information | Complaint or citation, ordinarily |
| Grand jury | Required in federal court; available in many states | Generally not used |
| Preliminary hearing | Common | Often unavailable |
| Jury trial right | Yes | Yes unless the offense is petty — no jury right where the maximum authorized imprisonment is six months or less |
| Initial appearance and arraignment | Separate proceedings | Frequently combined |
| Typical disposition | Plea or trial after motion practice | High-volume plea docket; diversion common |
The petty offense line is the exam point: the jury right turns on the maximum authorized penalty, not on the sentence actually imposed. An offense carrying a maximum of six months or less is presumptively petty and carries no jury right, though additional statutory penalties can push an offense over the line.
Right to Counsel
Two constitutional sources operate on different timelines.
| Fifth Amendment (Miranda) right to counsel | Sixth Amendment right to counsel | |
|---|---|---|
| Source | The privilege against self-incrimination | The right to assistance of counsel in criminal prosecutions |
| Attaches | During custodial interrogation, on request | At the initiation of adversary judicial proceedings — formal charge, preliminary hearing, indictment, information, or arraignment |
| Scope | That interrogation | Offense-specific, at every critical stage |
The governing appointment rules:
- Gideon v. Wainwright requires appointed counsel for indigent defendants in state felony prosecutions.
- Argersinger v. Hamlin and Scott v. Illinois together establish that no defendant may be actually imprisoned for any offense, felony or misdemeanor, without counsel or a valid waiver; where no imprisonment is imposed, appointment is not constitutionally required.
- Critical stages include post-charge lineups, preliminary hearings, arraignment, plea negotiations, trial, sentencing, and the first appeal as of right.
- Waiver must be knowing, voluntary, and intelligent; a defendant has a right to self-representation after a competent waiver, and the court may appoint standby counsel.
- Effective assistance is measured under Strickland v. Washington: deficient performance falling below an objective standard of reasonableness, plus prejudice — a reasonable probability that the outcome would have differed.
Grand Jury
| Feature | Grand jury | Preliminary hearing |
|---|---|---|
| Who presents | The prosecutor alone | Both sides |
| Defendant present | No | Yes |
| Defense counsel in the room | No | Yes |
| Cross-examination | None | Yes |
| Rules of evidence | Relaxed; hearsay permitted | Generally apply |
| Proceedings | Secret | Public |
| Output | Indictment (a true bill) or a no bill | Bindover or dismissal |
| Standard | Probable cause | Probable cause |
The Fifth Amendment requires indictment by grand jury for federal capital and otherwise infamous crimes. That requirement is one of the few Bill of Rights criminal provisions never incorporated against the states, so a state may proceed by information following a preliminary hearing, and most do.
Grand jury powers include subpoenaing witnesses and documents. A witness may not have counsel in the room in federal practice but may leave to consult. A witness may invoke the privilege against self-incrimination, and the government may respond with a grant of use and derivative use immunity, which compels testimony while barring its use against the witness.
Disclosure by the Prosecutor
| Duty | Source | What must be disclosed |
|---|---|---|
| Brady material | Due process | Evidence favorable to the accused and material to guilt or punishment |
| Giglio material | Due process | Impeachment evidence about government witnesses, including deals, benefits, and credibility problems |
| Rule 16 discovery | Rules of criminal procedure | The defendant's statements, prior record, documents and objects, examination and test reports, expert summaries |
| Witness statements | Jencks Act and its rule analogue | Prior statements of a testifying witness, after direct examination |
Three points about Brady that are commonly misstated:
- The duty exists without a defense request.
- It is continuing, extending through trial and sentencing.
- It imputes knowledge held by the prosecution team, including investigating officers, even where the individual prosecutor was personally unaware.
Materiality is the limiting principle: a violation requires a reasonable probability that disclosure would have changed the result.
Disclosure by Defense Counsel
Defense disclosure is narrower because of the privilege against self-incrimination, but it is real and it is reciprocal.
| Disclosure | Trigger |
|---|---|
| Notice of alibi | Prosecution demand; the defense must identify the alibi location and witnesses, and the prosecution then discloses rebuttal witnesses |
| Notice of insanity or mental condition defense | Statutory or rule requirement, on a set deadline |
| Reciprocal documents and objects | Triggered where the defense has requested and received the same category from the government |
| Examination and test reports | Reciprocal, where the defense intends to use them |
| Expert witness summaries | Reciprocal |
Failure to give required notice can result in exclusion of the defense witness, which is why alibi and mental-condition deadlines are among the most important dates a criminal defense paralegal calendars.
Motion in Limine
A motion in limine is filed before trial to obtain an advance ruling on the admissibility of evidence, so the jury never hears prejudicial material.
Typical subjects:
- Prior convictions and prior bad acts offered for propensity.
- Gruesome photographs whose probative value is substantially outweighed by unfair prejudice.
- Statements taken in violation of Miranda or the right to counsel.
- Physical evidence subject to a suppression ruling.
- Expert testimony failing the reliability standard.
- References to insurance, plea negotiations, or a codefendant's guilty plea.
Two practice points: a ruling in limine is often provisional and can be revisited as the evidence develops, and in many jurisdictions a party must renew the objection at trial to preserve the issue for appeal unless the court's ruling was definitive. A criminal defense paralegal drafting a motion in limine should confirm the local preservation rule and calendar the renewal.
A defendant is arrested without a warrant on Friday evening and held in county jail. No judicial officer reviews the basis for the arrest until the following Wednesday morning. What is the constitutional problem?
A prosecutor learns two weeks before trial that the lead detective has a sustained internal affairs finding for untruthfulness in a prior investigation. The defense has made no specific request for such material. What must the prosecutor do?
A defendant is charged in state court with a misdemeanor carrying a maximum penalty of six months in jail and a $1,000 fine. The defendant demands a jury trial. What is the likely outcome, and what is the constitutional rule?