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Can the testimony given at a preliminary hearing be used later in the
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.
Daniel Marks is charged with driving under the influence
(DUI). The arresting officer testifies at the preliminary hearing that Daniel
had an open beer can on the front seat of the car. Later, at trial, the same
officer testifies that there was an open beer can on the front seat and five
empty beer cans on the floor near the back seat. The defense attorney can
cross-examine the officer during trial and ask why, if there really were cans
on the back floor, the officer “forgot” to mention those cans at the
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).
Same as above. Daniel Marks is charged with DUI.
Daniel’s friend Julia, a passenger in the car when Daniel was arrested, planned
to go on a three-month trek to Nepal. Knowing of Julia’s Nepal plans, Daniel’s
lawyer decides to put Julia on the stand at the preliminary hearing. After the
arresting officer testified, Julia testified that she had purchased and brought
along with her in Daniel’s car a six-pack of canned diet soda. She explained
that she was on a diet and often brought her own beverages with her. She
further stated that she had held the soda can Daniel had been drinking from
when the policemen stopped them because Daniel needed to get his driver’s
license and couldn’t do that while holding the can. Julia testified also that
the remaining five cans of diet soda were on the back seat. The judge found
probable cause to hold Daniel for trial and set a trial date (when Julia was
scheduled to be in Nepal). Daniel, unwilling to plea bargain, insists he was only
drinking soda and feels he was arrested because of his eccentric appearance
(blue and green “punk” hair, multiple tattoos, and body piercings). At Daniel’s
trial, he can probably have Julia’s exculpatory testimony read to the jury.
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
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