Texas Examining Trials

Under Texas law any defendant who is charged with a felony has a right to an examining trial. Texas examining trials allows the criminal defense lawyer to inquire into the truth of the accusation brought against the accused. The prosecution has the burden to establish to the magistrate whether there is enough evidence to prove probable cause that the defendant committed the offense charged. If the prosecution fails, then the magistrate must discharge the defendant.

The burden of proof is very low for the prosecution so in reality defendants are rarely discharged from custody because the prosecution failed in its burden. That being said examining trials can still be used as a valuable tool for a Texas criminal defense lawyer.

An examining trial can be an excellent discovery tool early on in a criminal case. The prosecution will usually call the investigating detective or the police officer who made the arrest. The rules of evidence for a criminal trial do not apply and a detective is allowed to testify to hearsay however the defense can still learn the basic facts that law enforcement is alleging.

In cases when the actual arresting officer is called as a witness the criminal lawyer may be able to lock down the officer’s testimony in such a way that can aid the defense with a motion to suppress at a later date. At the very least the witness is now on the record and if their story changed at the time of trial the defense lawyer can use the transcript from the examining trial for impeach the witness during cross examination.

Defense counsel should be familiar with the local practices of the prosecutor’s office. Some prosecutors have a policy of proceeding immediately to indictment if defense counsel request an examining trial. If a defendant is indicted the right to an examining trial is terminated.