Can the testimony given at a preliminary hearing be used later in the case?
Testimony given at the prelim can be used against a witness later, if that witness testifies differently. Just as at trial, testimony at a preliminary hearing is recorded, often by a court reporter.
Often, the testimony a witness gives at the preliminary hearing is the witness’s first statement on the record regarding the facts of the case. And that statement may be useful to the defense if the witness later tells a different story at trial.
Additionally, a judge may allow testimony given at a preliminary hearing to be entered in evidence at trial if the witness later becomes unavailable (for instance, dies or leaves the country).
Although the defense does not typically present evidence at the preliminary hearing, Daniel Marks’s example above should show why it can be important on occasion to do so. Further, it can be very important for the defense to cross-examine a prosecution witness who presents damaging testimony at the preliminary hearing, because if that person becomes unavailable, the judge will usually allow the prosecution to use that evidence at trial.
by: Sara J. Berman