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What Happens Before a Criminal Trial in Indiana?  

Every criminal case in Indiana begins with a legal arrest as stipulated in Indiana Code 35-33-1-1. But what happens next? Well, there are a variety of things that happen before a criminal trial in Indiana takes place. Therefore, it is important for anyone facing criminal charges to understand each step of the process, from the initial hearing to jury selection, so that they can prepare for what will come next.   

If you have been arrested in Indiana and face formal charges, the first thing you should do is find an Indiana criminal defense attorney to represent you. The longer you wait to do so, the higher the stakes will get. To secure the best outcome in your criminal case, and to minimize the potential consequences, you’ll need to hire an experienced, aggressive criminal defense attorney in Indiana.  

The founders of Keffer Hirschauer LLP, Bradley Keffer and Tom Hirschauer III, are both former deputy prosecutors who understand both sides of the criminal justice system. Whether you face misdemeanor or felony charges, our skilled criminal defense team will work tirelessly to preserve your rights and freedom. Contact an Indiana defense attorney at Keffer Hirschauer LLP by calling (317) 751-7186 or completing our online contact form today. 

Initial Hearing for a Criminal Trial in Indiana 

When a person is arrested, they shall promptly be brought before a judicial officer in the county where the arrest was made for an initial hearing, or what is sometimes called a preliminary hearing. During this initial hearing, the judge will inform the defendant of the formal charges they face, along with their rights and any potential penalties associated with the conviction. Courts may also address the defendant’s plans to hire counsel, preliminary matters (like a pre-trial license suspension, for example), the conditions of bond or bail, and the setting of future dates in the case.  

The most common misconception about initial hearings is that the court will take up evidentiary issues, like whether the defendant is guilty or not, during the hearing. This is not correct. While there are some evidentiary issues that the defendant’s attorney may want to address at the initial hearing (bond or bail, other preliminary legal matters) issues of guilt are most often saved for the criminal trial in Indiana.  

The Defendant’s Rights in a Criminal Trial in Indiana 

Indiana Code 35-33-7-5 stipulates that a judicial official must inform the defendant, at the initial hearing, of certain rights, including:  

  • Their right to retain counsel, within 20 days of being charged with a felony and 10 days of being charged with a misdemeanor 
  • Their right to assigned counsel, at no expense to the person, if they are indigent 
  • Their right to a speedy trial  
  • The person’s privilege against self-incrimination 

Furthermore, it requires that the judicial official also inform the defendant of the amount and conditions of their bail; the nature of the charge against them; that the preliminary plea of “not guilty” is being entered for the person, and it will not become a formal “not guilty” plea until 20 days after the completion of the initial hearing; or 10 days, for those who are charged with only one or more misdemeanors (unless the defendant enters a different plea). In addition, the defendant must be notified that they can petition for a specialized driving privileges hearing if they have been charged with any offense in which the operation of a motor vehicle is an element of the offense; any offense under Indiana Code 9-30-5 or Indiana Code 35-46-9, or any offense under Indiana Code 35-42-1, Indiana Code 35-42-2, or Indiana Code 35-44.1-3-1 that involves the use of a vehicle. 

Bail Bonds in Indiana 

When an individual is released after they are arrested and charged in a criminal case, they are released on bail, or more formally, bail bond. This is an amount of money, put up as collateral against an individual returning to court, that a defendant must pay to be released from jail while criminal charges are pending. Bond is available to every defendant charged with a crime in Indiana except for murder, and the amount required is determined by the severity of the charge. 

Indiana Code 35-33-8-3.9 outlines how the court determines the amount of bail required for a defendant. For less serious charges, each county has a public bond schedule that determines the amount. For more serious charges, the judge will set the bond amount at the initial hearing. If the defendant fails to re-appear in court, the bail money or property is forfeited. Usually, the money or bond is released at the end of the criminal trial in Indiana – no matter the outcome. 

Pre-Trial Determinations 

Courts may use the initial hearing to make legal pre-trial determinations on certain legal matters. The most common occurrence is in drunk driving cases where the judge determines whether and what type of pre-trial license suspension a person should face. It is precisely these types of legal issues as well as concerns for bond or bail that make hiring an attorney prior to your initial hearing so important. In certain circumstances, an attorney may also be able to waive an initial hearing for a defendant without that person ever having to appear in court. Contact an Indiana defense attorney at Keffer Hirschauer LLP  by calling (317) 751-7186 or completing our online contact form today. 

Future Court Dates 

Lastly, the court will set future dates in the case. Indiana Code 35-36-8-1 requires that for persons charged with felony offenses, the judicial official set what is called an “omnibus” date at the initial hearing. This date must be no earlier than 45 days and no later than 75 days after the completion of the initial hearing unless there is an agreement between the prosecution and defense regarding a different date.  

The purpose of an omnibus date is to firmly establish a date in which various deadlines can be established, including:  

  • When counsel may withdraw from the case for any reason (30 days prior to the omnibus date) 
  • When the prosecution can amend the indictment (30 days prior to the omnibus date) 
  • When the defense can offer evidence of alibi (20 days prior to the omnibus date) 
  • When the defense can file alleging that the defendant has an intellectual disability (20 days prior to the omnibus date)  
  • When the defense can file a motion claiming the use of justifiable force (20 days prior to the omnibus date) 
  • When the defense can file a motion to dismiss (20 days prior to the omnibus date)  


Discovery, Preliminary Pleas, and Pre-trial Motions 

Upon conclusion of the initial hearing, it’s time for the criminal defense attorney to get to work. They will investigate the defendant’s case during the discovery process, help them understand whether it would be wise to re-evaluate the preliminary plea of not guilty, and, in some cases, file a motion to dismiss the case entirely or to suppress certain evidence if it was illegally obtained. 


When preparing for a criminal trial in Indiana, the prosecution and defense will engage in discovery, the process of exchanging information about the witnesses and evidence that they’ll present at trial. This process ensures that both parties know what evidence will be brought up, preventing what is called “trial by ambush.”   

Common Methods of Discovery   

  • Obtaining depositions, which are out-of-court statements, given under oath, by a person involved in the case. These can be written transcripts, video tapes or a combination of the two. 
  • Issuing a subpoena (written order issued by the court) for books, records, or other documents for inspection  
  • Requiring the other side’s evidence to be submitted to a physical examination 
  • Requesting that a document be submitted for examination to determine if it is authentic 

Preliminary Pleas 

Although a defendant can plead guilty during the initial hearing, an experienced Indiana criminal defense attorney would often advise against doing so. The reason being is that pleading not guilty at the initial hearing provides defendants with more time to seek legal advice while not putting their future trial in jeopardy. After the initial hearing, the defendant will have 20 days (about 3 weeks) to consult with their attorney about what plea they would like to enter. Most often, this should be a “not guilty plea” as that is required to move the case to trial and shifts the burden to prove guilt to the prosecution. It also leaves the door open for the defense attorney to negotiate a favorable plea agreement. 

When considering a plea agreement, a skilled attorney will thoroughly assess the strength of the prosecutors’ evidence received during the criminal discovery process. If the evidence against the defendant is weak, the attorney may believe it is worth the risk to take the case to trial. This is especially true when the agreement offered by the prosecutor’s office is similar to the penalties the defendant may face if found guilty by a judge and jury.  

Favorable plea agreements are often ones where the prosecutor agrees to reduce a felony charge to a misdemeanor. Other favorable plea agreements may include dismissing the charges if certain conditions are met (such as agreeing to counseling or rehab); or when the sentence is reduced far below the maximum sentence. However, no matter how favorable terms may be, it’s critical that defendants speak with an experienced criminal defense attorney before entering into a plea agreement in Indiana.  

Pre-Trial Motions 

Before a criminal trial in Indiana begins, a criminal defense attorney may want to file a request with the judge to make a legal ruling. This is called a pre-trial motion. Common types of pre-trial motions include: 

  • Motion to Discover. By filing a motion to discover, one party seeks to have the court order the other party to provide them with discovery information.  
  • Motion to Dismiss. This motion is a request asking the court to dismiss the case on the grounds that it is not legally sound, even if all the facts are proven true. Full grounds for a motion to dismiss can be found in Indiana Code 35-34-1-4 and is further explained in Indiana Code 35-34-1-8. 
  • Motion in Limine. This request to the court is made by attorneys when they would prefer that certain testimony be included or excluded in the case, or the court take a particular course of action when adjudicating the case. 

Jury Selection and Instructions for a Criminal Trial in Indiana 

Before a criminal trial in Indiana can officially begin, there are several steps that the court must take. First, the court must assemble a jury through a process called jury selection, and then instruct the jury on how they are to conduct themselves when hearing the case.  

Jury selection, also known as voir dire, is outlined in Indiana Code 35-37-1. Most Level 1-5 felonies will require a 12-person jury, unless the opposing parties agree to a lesser number. For Level 6 Felonies and misdemeanors, there will be a 6-person jury. Both the prosecution and defense can challenge jurors selected by the court; however, they must have good cause when doing so. A complete list of causes is listed in Indiana Code 35-37-1-5, but several examples include:  

  • The person is mentally incompetent 
  • The person has a personal interest in the case 
  • The person is related to the victim, complainant, or defendant within the fifth degree 

Once the jury has been chosen, as outlined in Indiana Code 35-37-2-3, the court must instruct the jurors of several important elements of their job, including:  

  • If a juror realizes, during the trial, that they have personal knowledge of any fact material to the cause, they shall inform the bailiff of this at the next recess/adjournment, whichever is sooner. If the juror is found by the court to have this knowledge, the court may replace the juror with an alternate.  
  • The jurors should not converse among themselves or permit others to converse with them on any subject connected to the trial, or to form or express any opinion about the case until the cause is finally submitted to them 
  • The jurors may separate when the court is adjourned, however, the court may need to sequester the jury at times to ensure a fair trial 

Don’t Go to a Criminal Trial in Indiana Unprepared. Call Keffer Hirschauer LLP Today.  

When charged with a crime, the worst thing you can do is go to trial unrepresented and unprepared. To minimize your sentence, or have the charges dismissed completely, you’ll need to hire a skilled defense attorney.  

The founding attorneys of Keffer Hirschauer LLP in Indianapolis are former prosecutors, who know the tactics used by the State to move criminal cases forward. Our attorneys will evaluate the case against you, challenge the prosecution’s evidence, and aggressively pursue your best outcome, whether that means negotiating with the prosecution or arguing on your behalf in a criminal trial in Indiana. Contact an Indiana defense attorney at Keffer Hirschauer LLP by calling (317) 751-7186 or completing our online contact form today. 


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