In many states, the prosecutor may eliminate the need for a preliminary hearing altogether by convening a grand jury and obtaining an indictment. And, for strategic reasons, defendants may decide to waive (give up) their right to the preliminary hearing altogether and proceed directly to trial.
The preliminary hearing typically takes place soon after charges are officially filed against the defendant. For instance, federal law requires that a preliminary hearing be held within 14 to 21 days after the defendant's initial appearance. (18 U.S.C. § 3060; Fed. R. Crim. Proc. 5.1.) Many states have similar time frames.
As it happens, defendants can and often do “waive time,” which allows the preliminary hearing to be delayed to a time convenient for all the major players in the case. Delays usually benefit the defense, which is why it’s very common for defendants—on the advice of their attorneys—to agree to waive time.
In some ways, preliminary hearings are previews of what the trial will be like, if the case gets that far (most don’t). A prosecutor offers testimony from witnesses and may also introduce case-related evidence, such as a weapon.
Typically, prosecutors present only enough evidence to convince the judge that probable cause exists to hold the defendant for trial.The defense has the right to—and most often will—cross-examine prosecution witnesses both to find out more about their observations and test their demeanor. This helps the defense prepare to cross-examine these witnesses at trial and may also present defense attorneys with information that they can use to improve their positions in plea negotiations. After the prosecution is finished with its presentation, the defense has the right to put on its own case, but is not required to do so—and usually doesn’t.
Many of the same procedural rules that govern trials apply in preliminary hearings. For example, ordinary witnesses (nonexperts) may testify only to what they have perceived; they may not give opinions. And the defense and prosecution may object to evidence and testimony offered by the other side.
However, one important difference between preliminary hearings and trials is that frequently hearsay evidence is admissible in preliminary hearings.
Preliminary hearings usually are conducted in open court where the public, the defendant and defendant’s family, any victims, the media, and any other interested people may all be present. In rare cases, however, the judge may decide to close the courtroom (for example, in the case of a sex crime where the victim is a child).
A preliminary hearing usually has one of three outcomes:
After a defendant is bound over for trial, a prosecutor typically files a separate document (often called an “information”), which signals the start of further court proceedings.
Defendants who are free on bail normally remain free following the preliminary hearing but are required to appear in court at the next scheduled hearing. In-custody defendants stay in jail awaiting their next court appearance, although they can renew their request for bail at the preliminary hearing. Bail is always reviewable, and a judge might grant bail if the actual facts (as presented at the prelim) are not as bad as the police report made them sound.
At this point, depending on the jurisdiction and the seriousness of the crime, the case will proceed in one of these ways:
The criminal justice process is complex and can be overwhelming. If you're concerned about an upcoming preliminary hearing, talk to your attorney and ask questions. A little information can go a long way.
A defendant might waive the right to a preliminary hearing for several reasons, including the following.
However, there’s always a chance the defense could prove otherwise, and the judge might dismiss the case or reduce the charges at the close of a preliminary hearing. Here are some examples of how that might happen.
Say the eyewitness identification of the defendant doesn’t hold up under cross-examination. If there’s no other credible evidence to show that the defendant committed the crime in question, the whole case against the defendant might unravel, and the judge may readily agree to dismiss the charges (or reduce them to a charge that doesn't require the eyewitness testimony).
A key prosecution witness could fail to show up or become reluctant to testify. This might happen if the defendant is a spouse, family member, or friend; and the preliminary hearing is being held in a state that requires the witness to attend rather than allowing the police to relate what the witness told them. (Of course, tampering with a witness by means of intimidation, coercion, or threats is a crime—often a felony.)
The prosecution fails to offer evidence in support of each element of the crime charged. For example, to convict a suspect of grand theft, the prosecution usually must show that (1) the defendant, (2) took and carried away, (3) property with a value of more than $1,000, (4) belonging to another (person or company), (5) with the intention of depriving that person or company permanently of the property. In the preliminary hearing, the prosecution does not have to prove each of these elements beyond a reasonable doubt, but it does have to produce some evidence to substantiate each element. If the prosecution does not put on any evidence as to one or more of the elements, the judge should dismiss the charge.
Example: Mary and a friend were arrested for grand theft for allegedly stealing a watch from a department store. At the preliminary hearing, the prosecution puts on evidence to show that Mary and her friend were in the store the day a watch was stolen. A visual recording depicts Mary's friend putting a watch in her backpack. There is no visual recording of Mary. Mary was wearing pants with no pockets and was not carrying a purse, backpack, or anything else at the time. The prosecution presents no evidence whatsoever to show that Mary actually took anything. Mary's lawyer will make a motion asking the judge to dismiss the case on the basis that the prosecution failed to put on evidence for one critical element, namely that Mary participated in the theft of the watch. If the judge denies the motion to dismiss, Mary's lawyer can still try to negotiate a plea bargain with the prosecutor. The prosecutor may be willing to dismiss the charges altogether or reduce them significantly.
]]>Preliminary hearings serve to protect the defendant from unfounded criminal charges—making sure the prosecutor has sufficient evidence to allow a criminal trial to go forward. These hearings also differ from trials in other respects, such as:
After a preliminary hearing, prosecutors and defense attorneys sometimes agree to “submit the case on the record.” When this happens, a judge (not a jury) will review the preliminary hearing transcript to determine the defendant’s guilt.
A prosecutor might agree to submit on the record when the case is weak but the prosecutor’s office doesn’t want to dismiss charges outright. If the judge dismisses the case, the prosecutor can deflect criticism from angry victims or police officers to the judge.
More often, a case submitted on the record favors the prosecution rather than the defense and, in essence, is a slow plea of guilty. In such cases, the defense knows that a guilty verdict is all but certain, but by submitting on the record, the defense can move the case more quickly to an appellate court or simply offer an out to a defendant whose case is hopeless but doesn’t want to plead guilty or nolo contendere. (Defense attorneys can submit on the record only if the defendant agrees to waive trial.)
Even though the defense doesn’t expect to see all the prosecution’s cards, the preliminary hearing may give the defense a preview of:
Basically, the defense tries to size up how solid the government’s case is as a whole. Such information can be important to the defense—whether it ultimately settles the case in a plea bargain or proceeds to trial.
If the prosecution’s case seems weak—say the prosecution witnesses change their earlier stories, forget important details, or are otherwise discredited—the defense may decide it’s worthwhile to proceed to trial. The prosecution, on the other hand, might decide to offer a generous deal, or at least, the defense may gain leverage to push for one.
Example. Say the arresting officer is the state's main or only witness. If the defendant can undermine the arresting officer’s credibility, the prosecutor may be willing to offer a much better deal following the preliminary hearing even if the prosecutor refused to budge on his or her offer earlier.
If, however, the government’s case seems very strong, this information may help the defense decide to accept a plea bargain. Even if a plea deal was not what the defense had hoped for, the preliminary hearing might show a deal is better than wasting further energy and money fighting what looks to be a losing battle. Because more than 90% of cases end before trial, it’s clear that a primary defense goal at the preliminary hearing is to look for evidence it can use to get the best possible result at the plea bargaining table.
Information gathered at the preliminary hearing will also help the defense if the case is one of the few that do go to trial. Whether or not the defense presents its own witnesses, the defense will usually vigorously cross-examine prosecution witnesses in the preliminary hearing. This cross-examination gives the defense an opportunity to see how the prosecution witnesses will hold up and pin them down as to what their testimony will be at trial. (If they change their testimony at trial, the preliminary hearing testimony can be used to attack or "impeach" their credibility.)
As useful as a vigorous cross-examination of prosecution witnesses can be, a sound alternative defense strategy is to cross-examine prosecution witnesses very briefly and politely. This serves two purposes:
If you're facing criminal charges, talk to your attorney about your options and possible defense strategies. Attorneys must make many tactical decisions but the more you understand, the better you can help your own defense.
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