STEP 10 – GOING TO PRETRIAL CONFERENCE
Kansas Statute 22-3217 outlines the procedure for pretrial conferences. These conferences are important meetings between the judge and both attorneys. In these meetings, major matters concerning the upcoming trial can be addressed and dealt with. Experienced counsel will use a pretrial conference to both gain a favorable position going into trial and determine how a judge will likely handle the trial.
Pretrial conferences can occur any time after the filing of an information or indictment. However, almost every trial will have a final pretrial conference just before trial begins. These generally take place a few days before a trial begins. The aim is to make determinations regarding what is likely to occur at trial, so the timing should be as close to trial as possible. Judges are always pressed for time and looking forward to the never-ending line of upcoming cases. Thus, an attorney can quickly gain credibility and favor with a judge by actively trying to work with the opposing attorney to make a trial run quickly and efficiently. This does not mean that either side should put efficiency before their case, but simply that a trial will usually boil down to a few contested facts. These facts, rather than outside distractions, should be the focus of the trial. When a pretrial conference is held too early, these issues may still be too out of focus to adequately prepare for.
A pretrial conference is an opportunity for both attorneys and the judge to be proactive in regards to the upcoming trial. The details of the trial will be worked out, including the process of selecting a jury, how long the trial is excepted to last, and any abnormal procedures or requests. In addition, the attorneys have the opportunity to put potential issues before the judge. These can include evidentiary problems with exhibits or testimony defense counsel anticipates the district attorney will try to present. If these problems were known early on, the judge may have a motion in limine to rule on regarding the evidence. If not, the pretrial conference presents a great opportunity for the judge to hear both sides and make a calm, reasoned decision rather than having to do so during the trial.
A great benefit of addressing these issues at the pretrial conference is the ability to bind the district attorney more easily to agreements. A district attorney is likely to feel little pressure to agree to even the most reasonable requests when made during discovery. However, the judge has great power in controlling how a trial proceeds. Thus, a district attorney that refuses reasonable requests or compromises concerning evidence can be forced to accept those terms during a pretrial conference. This was the case in State v. Coleman, where a judge refused to allow a witness to be called because an agreement had been reached to not call that witness at the pretrial conference. The Kansas Supreme Court held that the judge had to the power to hold the parties to that agreement, even if the district attorney wants to change his mind at trial. This power also allows the court to provide appropriate punishments for unnecessary delay or bad-faith refusals concerning evidentiary disputes or discovery requests.
At any time prior to conviction by the jury, a defendant may enter a plea bargain with the state. A plea bargain is an agreement to accept punishment for a crime. This is generally done in exchange for a less crime or reduced punishment. A defendant can plead guiltily, admitting to the charges in full, or no contest (nolo contendere), reserving an admission of guilt but accepting the conviction and punishment nonetheless. Each type of plea has its own attributes, such as how that conviction may be used against the defendant in a later suit. These differences and risks are best discussed in the context of each case’s unique facts.
The pretrial conference is a ripe time for plea bargaining. At this point, all the evidence that could possibly come in at trial is known. Additionally, evidence that is likely not to come in at trial, and therefore will not be considered by the jury, is also known. This paints a good picture of the obstacles a district attorney will face in proving the case beyond a reasonable doubt. The attitude and views of the judge are also known, giving a good indication of how he or she will likely rule on key issues. This all adds up to a perfect opportunity to make a strong plea bargain.
Any plea deal reached by the district attorney and defendant must be approved by the court. A large part of this requirement is to ensure that the defendant understands everything he or she is giving up: the right to have a jury determine the outcome, the right to have the state prove every element beyond a reasonable doubt, the right to confront directly her accusers, etc. A court wants to ensure that the defendant is making an informed decision. And that requires knowing what is being lost in the bargain. If the court is satisfied that the defendant has had adequate information given to her, including effective legal counsel, the plea will be approved and the case does not need to go to trial.