By Bracken McKey, Washington County, OR
The part nobody sees on television
Most people picture a criminal case as the trial itself: opening statements, a witness on the stand, a jury filing back in with a verdict. That is the smallest part of the work. By the time a case gets to trial, most of the real fighting is already over. It happened in motions, in paperwork, in arguments made to a judge weeks or months before anyone selected a jury.
I spent 25 years as a prosecutor before I moved into criminal defense and personal injury work. I have sat on both sides of the pretrial process, and I want to walk through what actually happens in that stretch, because it decides more cases than people realize.
Discovery comes first, and it shapes everything after
Once charges are filed, the defense is entitled to discovery: police reports, witness statements, lab results, photos, recordings, anything the state plans to use. This is not a formality. It is the raw material for every decision that follows.
A defense attorney reading discovery is not just looking for what supports the charge. I am looking for what is missing. Was there a search that needed a warrant? Was a witness interviewed once or five times, and did the story change? Did the lab follow its own protocol? Gaps like these do not always show up on the first read. They show up when you go through the file slowly, more than once, comparing one document against another.
Pretrial motions are where cases actually get decided
This is the piece that gets the least attention outside a courtroom, and it deserves more. Pretrial motions ask a judge to rule on something before trial starts, and the outcome can reshape the whole case.
A motion to suppress can keep out evidence that was gathered improperly. If a stop, a search, or a statement violated someone’s rights, the fix is not arguing about it in front of a jury. It is asking the judge to exclude that evidence before the jury ever hears it exists. Win that motion, and the state’s case can lose its center. Lose it, and the defense has to plan around evidence that is now locked in.
There are other motions too: challenges to how a charge was written, requests to separate charges that should not be tried together, arguments over what expert testimony should be allowed. None of this is dramatic. It is careful, written, and argued mostly on paper. But it sets the boundaries everyone will operate inside once the trial starts.
Building a defense strategy is not a single decision
People sometimes ask what “the strategy” is in a criminal case, as if it is one idea decided on day one. It is not. It is a series of smaller decisions that build on each other as discovery comes in and motions get resolved.
Some of the questions I am working through in this stage:
- Does this case turn on physical evidence, witness testimony, or both?
- Where is the state’s case strongest, and where is it thinnest?
- Are there facts that support more than one explanation?
- What does the client need to understand now, before anything is decided?
I try to reach conclusions from the file, not from expectation. A case that looks weak on the surface can hold up if the evidence is tight. A case that looks strong on paper can fall apart under one bad witness or one bad search.
Negotiation happens here too
Plea discussions are not something that starts the morning of trial. They run alongside everything else, often shaped directly by how the pretrial motions come out. A prosecutor’s offer before a suppression ruling can look very different from the offer after. This is one reason the pretrial period matters so much. It is not just preparation for a trial that might happen. It is where the shape of the whole case gets negotiated, argued, and in many instances, resolved.
What this means if you are the one facing charges
If you are the person this is happening to, the waiting between arraignment and trial can feel like nothing is moving. In reality, this is usually where the case is won or lost. The attorney should be reading every page of discovery, filing motions where the facts support them, and building a strategy that responds to what the evidence actually shows, not just what the charge says.
Ask what discovery has been reviewed. Ask what motions are being considered and why. A defense that starts working the day the trial begins started too late.