Posted in Preliminary Hearings FAQ'S on October 4, 2017
A preliminary court hearing is a”trial before a trial” so a judge may determine if there is or is not enough evidence to proceed with a criminal case and force a defendant to stand trial. It’s not a replacement for the actual trial with a jury or to find the defendant “guilty” or “not guilty,” nor will they enter a plea. If the judge determined there is not enough evidence, the defendant will be released fro custody or discharged from their bond.
At a preliminary hearing, a Judge is presented evidence through testimony of witnesses. Generally, the prosecutor will use the police officer(s) who investigated the case to present their evidence. Your defense attorney will be given the chance to cross examine any witnesses testifying at the hearing.
This is often a great opportunity to explore weaknesses in a case before trial, or to lock witnesses down to sworn statements about the facts, so they can’t change their story later without losing credibility.
Once the Judge has been presented all the evidence in the case, the prosecutor will then ask for a “holding order.” This is the court’s finding whether there is probable cause to believe the particular offenses charged have occurred, and whether the defendant is legally responsible.
The vast majority of cases in California are not dismissed at preliminary hearings. Unfortunately, probable cause is a much lower burden of proof than the “proof beyond a reasonable doubt” standard required to convict someone at trial. However, many average criminal defense lawyers waste many of the important opportunities presented in a preliminary hearing to help improve their client’s cases. For instance, if the credibility of a witness can be put into question through vigorous cross examination, often times a district attorney may recognize a problem in proving their case at trial and may offer a better deal.
As well, if a prosecutor does not offer any evidence of a required part of their case at preliminary hearing, a skilled defense attorney will know when to NOT ask questions so that they can attack the charge via a 995 motion after preliminary hearing to ask that the charges be dismissed. In the right circumstances, the preliminary hearing also provides the opportunity to ask that a Judge reduce your felony charge to a misdemeanor, if allowed by law.
It is important to recognize that going through preliminary hearing can be a risky venture in many cases. California Penal Code Section 1192.7(a)(2) tells both prosecutors and Judges that they aren’t to negotiate the settlement of any Serious Felonies or Felony DUI cases unless there are proof problems with their case.
Some county prosecutors’ offices follow this rule very strictly, whereas other county prosecutors’ offices do not. Having a criminal defense lawyer familiar with the county, Judges, and prosecutors in your case is very important for this reason, as well as others.
Unfortunately, no. In 1990, California voters passed Proposition 115, which created a number of massive changes in California criminal law and procedure. One of those changes allowed for pre-qualified officers to testify to hearsay at preliminary hearing.
As a result, nowadays almost all preliminary hearings are done by having officers testify about what other witnesses or the alleged victim(s) told them. Only in certain circumstances do prosecutors choose to put on the actual witnesses or victims at preliminary hearing.
Those situations include when they are concerned about a witness changing their story later on, they are concerned about whether a witness may not show up for trial, or they have concerns about the credibility of that witness. Ultimately it is up to the prosecutor to decide whether to have the real witnesses or just the investigating officers testify at prelim, but the right conversations with the right criminal defense lawyer can always impact that decision to a defendant’s advantage.
Generally speaking, preliminary hearing is not used to put on evidence for your defense even though you do have the right to present evidence. This is because typically the Judge will still hold you to answer to the charges, but now you’ve exposed your defense to the prosecutor and the police, who will then immediately begin trying to figure out how to discredit your defenses and witnesses.
The choice whether or not to present your own witnesses at your preliminary hearing is a very carefully calculated decision that must be made by your defense attorney after weighing the pros and cons of ALL aspects of your case.
Have you recently been summoned to a preliminary hearing and have questions regarding the upcoming legal proceedings? If so, contact Criminal Defense Attorney Graham Donath at 951-667-5293 for answers.