Given the fact that a prosecutor in Texas can seek an indictment without going through an examining trial first, are you all aware of any jurisdiction that still has examining trials? In what situations are they used?
We sometimes still get a motion for an examining trial in our predominantly rural district (Pecos, Brewster, Jeff Davis and Presidio Coounties). I suspect the likely reason is that we only have a grand jury once every month or two. So far, have not actually had any examining trials, as we usually manage to have grand jury before the date set for the examining trial, or dismiss the complaint, then take the case to the grand jury. Hope this helps.
We too are in a rural jurisdiction. The only time I have seen a request for an examining trial is when a defense lawyer has a client in jail and wants to spur us on to indict. We have never actually had one, but have taken the case to the next meeting of the grand jury.
We have an examining trial every now and then on the request of a defendant. The only advantage I see for our side is to get an inexperienced officer more time on the witness stand. I make our evidence as cursory as possible and I make sure it does not turn into a discovery tool for the def.
[This message was edited by Mark Edwards on 10-30-03 at .]
We are required to have an examining trial every now and then in a drug case. Sometimes the lab reports don't get back in time to indict the case before the examining trial. At one time, we were waiting over six months for lab reports. Situation seems to be a little better now but we still have one now and then. Our jailhouse lawyers seem to think an examining trial is a neat thing.
Around here we call 'em motions for speedy indictment.
Yes, I am blessed with examining trials in Bosque County. As Tim mentions, we occasionally have defendants who have been arrested for drug offenses and continue to be confined, but who are not indicted because of lack of a lab report. From time to time other types of cases arise where an examining trial is requested because our grand jury normally meets just once every three months (generally often enough to prevent problems under 17.151, but not often enough to avoid examining trials). Because we have an open-file discovery policy I have never really understood why defense counsel think it necessary to have these proceedings. I have never had the JP find insufficient cause to continue to hold a defendant. Rather than dismiss complaints, my mechanism to avoid these things is to agree to PR bond (if there is any chance we will seek an indictment), but usually the reason for the hearing is something other than getting the defendant released. In fact, we have had requests for examining trials in cases where the defendant was already out on bond. With the new requirement that a magistrate determine whether probable cause exists to believe that the person committed the offense under art. 17.033 (which presumably satisfies the requirements of Gerstein), I see no reason why art. 16.01 (and much of the rest of Ch. 16) should be retained as part of our law. Certainly I see no reason for Tex.R.Evid. 101(b), which seems to me to conflict with Rule 101 (d)(1)(F) anyway.
I have also used the dismissal to avoid the examining trial requirement. I have also agreed to PR bonds in some cases when the purpose of filing for examining trial was to attempt to get a lower bond. Unfortunately I have a very independent minded JP who thinks he knows more about the law than he really does who will sometimes side with the defense in examining trials so I have to be careful about which cases I allow to go before him. Nothing like a JP willing to dismiss a case to get everyone in the jail to file for examining trials.
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