What is an Examining Trial – Why Have One?

If you have been arrested for a felony offense in Collin County, Texas, the State may keep you incarcerated for as long as 90 days while they seek an indictment from a grand jury. Because individuals with a good defense are not always the same individuals who have the ability to post thousands of dollars in bond, the law provides a tool known as the examining trial.

Section 16.01 of the Code of Criminal Procedure provides that a person accused of a felony may be brought before a magistrate for an examining trial so that officer can examine the truth of the accusation made and determine the amount or sufficiency of bail. By definition, an examining trial could result in one of three outcomes: (1) defendant is discharged from jail pending the decision of the grand jury, (2) bond is reduced, or (3) bond is increased.

In practice, an examining trial can have a number of different outcomes. These outcomes will depend on the type of case and the prosecutor handling it. Consider the following:

  • In order to avoid an examining trial, the prosecutor may agree to a reduced bond or even a personal recognizance bond (P.R. bond).
  • If the prosecutor does not offer to reduce bond, the examining trial can be used as an early discovery tool through which the State should turn over the police report and witness statements.
  • The examining trial presents an opportunity to cross-examine the investigating officer(s) and complaining witness(es) and determine strengths and weaknesses in the State’s case at a very early stage.
  • On the other hand, a request for an examining trial may encourage the prosecutor to expedite the indictment process; once an indictment is obtained, the right to an examining trial no longer exists.

Because the examining trial is a lesser-used procedure in Texas criminal practice, a request can sometimes be interpreted as provocative. The decision to request an examining trial should involve a serious cost-benefit analysis which should, in any case, involve a criminal defense attorney.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney

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