Getting the Most Out of Your Preliminary Hearing

When a case is set for preliminary hearing, it usually means that the prosecution is confident the evidence supports the charges and early settlement negotiations have failed. The defense attorney’s role at a preliminary hearing is to test the strength of the prosecution evidence. Here are some of the important benefits of a preliminary hearing for both sides.

Engaging the witnesses. A case will often hinge on a witness’s testimony at the preliminary hearing. The hearing may reveal witness bias for one side or the other, bring out previously unknown facts, or lend support to new theories or defenses. For prosecutors, calling a live witness may reveal weaknesses in the narrative or inconsistencies among witness accounts that will have to be addressed. For the defense counsel, this may be the only chance to observe and interact with a hostile witness before trial. Even if the hearing proceeds under Prop 115 (peace officers who meet certain standards may testify to one level of hearsay), effective cross-examination can draw out many of these issues. Although neither side may go on a fishing expedition, judges often allow a fair amount of leeway in the scope of examination.

Preserving testimony. Witnesses may forget, move or pass away, or even become uncooperative as time goes by. A preliminary hearing preserves their testimony under oath, and the transcript may be cited to refresh their recollection or, in limited circumstances, to establish evidence at a later trial.

Suppressing illegally seized evidence. A Motion to Suppress Evidence may be made concurrently with the preliminary hearing (with 5 days notice) or separately at a later time. This can be of benefit to both sides by narrowing issues and getting a ruling on admissibility of problematic evidence.  Such a significant ruling may even be the decisive factor in early disposition of the case, whether by dismissal of charges or negotiated plea.

Providing evidence of erroneous identification issues. A preliminary hearing in conjunction with a People v Green (1979) 95 CA3d 991 motion can provide essential information early that could exonerate a victim of mistaken identity. This is a motion to keep the defendant out of sight when the witness is testifying as to the description of the perpetrator of the crime. This was previously called a “blackboard motion,” as the defendant sat behind a blackboard so as not to taint the identification.

Aiding other legal motions. A preliminary hearing can sometimes set out facts that support legal motions in the future, around issues such as Miranda, Confidential Reliable Informant, secret surveillance location, or statute of limitations. Often these secondary motions are noticed and litigated based on a preliminary hearing transcript.

Affecting the defendant’s position. At the conclusion of a preliminary hearing, the court typically renders a decision immediately. Discharge of the case (no holding order on some or all charges), reduction of felony charges to misdemeanors (misdemeanor certification), and bail reduction are all possible outcomes that improve the defendant’s position. Conversely, a holding order represents a ratification of the prosecutor’s charging decision by the court and a necessary step in moving the case forward.

In addition to these benefits of a preliminary hearing, there’s always the possibility of other surprises, both substantive and procedural. For example, did the witnesses show up? Was full cross-examination allowed? Were the elements of each offense met? Did the court rule correctly on the issues?

Even after a holding order is issued, defense counsel should study the transcript carefully for any grounds for a Motion to Set Aside the Information (Pen C §995). And prosecutors should make every effort to evaluate the decision to file an Information in light of how the hearing went.

For all you need to know about preliminary hearings, turn to the “Crim Law Bible,” CEB’s California Criminal Law Procedure and Practice, chap 8. And for forms related to preliminary hearings, check out CEB’s California Criminal Law Forms Manual, chap 8.

Other CEBblog™ posts you may find interesting:

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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