Stage 4: The Preliminary Hearing
For felony cases, the next stage after arraignment and possibly pre-trial, is the preliminary hearing, also commonly known as a “prelim.” If the arraignment is the beginning of court proceedings, and the trial is the end, then the prelim is somewhere in the middle. The preliminary hearing is like a mini-trial with live testimony of witnesses, cross-examination of those witnesses, and the right of the defendant to testify or remain silent. It’s pretty short and usually lasts only about an hour or two, but it can go as long several days.
The two biggest differences between a preliminary hearing and a trial are:
- The finder of fact in a preliminary hearing is a judge rather than a jury of twelve in a trial; and
- the burden of proof in a preliminary hearing is much lower than at trial (more below).
The Purpose of the Prelim:
The prelim is the prosecutor’s opportunity to show the judge whether there is enough evidence to hold the defendant to answer for trial. If the prosecutor is able to show the judge enough evidence to support suspicion of the defendant’s guilt, then the judge will transfer the case to a trial court for those proceedings to begin. On the other hand, if there is insufficient evidence to give the judge a suspicion that defendant is guilty, the judge can dismiss the case right then and there. At the prelim, the sole question the judge will decide is whether there exists probable cause to believe that the defendant committed the crime or crimes with which he or she is charged.
Reduction to a Misdemeanor:
Other than holding to answer or dismissing, the judge has a third option for offenses known as “wobblers.” Wobblers are offenses that can be charged either as misdemeanors or felonies. The judge has the power to reduce wobblers from felonies to misdemeanors pursuant to Penal Code 17(b)(5). The judge typically decides this issue after the preliminary hearing takes place. Some of the factors the judge typically considers regarding wobblers are the severity of the facts testified to at the prelim, the defendant’s prior criminal record and history, and the defendant’s attitude at the prelim. This is one reason to be respectful and properly dressed at a prelim.
Burden of Proof at a Prelim:
The burden of proof at a preliminary hearing is much, much lower than at a trial. At a trial, a jury must find the defendant guilty beyond a reasonable doubt— the highest legal standard recognized by law. Conversely, at a preliminary hearing, the judge only has to have a reasonable suspicion as to the defendant’s guilt to hold him or her to answer for the charges at trial. This is known as a probable cause standard or a preponderance of the evidence standard. It is one of the lowest legal standards recognized by the law. It is for this reason that most defendants are held to answer for the charges at the prelim. Once the defendant is held to answer at a trial court, the defendant can appeal the prelim judge’s decision by having the trial judge review the prelim transcript. This is called a PC 995 Motion and the trial judge can overturn some or all of the prelim judge’s findings.
Victories at Preliminary Hearing:
I have personally experienced significant victories at preliminary hearings, including dismissals and significant reductions. For instance, in one particularly memorable case, my client was charged with PC 187 — first degree murder, which carries a life sentence. It was a “contested prelim,” which means we, the defense, put on evidence and witnesses. After that prelim, the brave judge dismissed the first degree murder charge and, instead, held my client to answer for involuntary manslaughter! That meant my client’s maximum potential sentence dropped from life imprisonment to a few years in prison. I’ve also had many charges, including felony gun charges, reduced to misdemeanors at the prelim.
Timing of a Preliminary Hearing:
A defendant has a right to a speedy preliminary hearing within ten court days of the arraignment, unless there is a showing of good cause. If good cause is shown, the defendant has a right to a preliminary hearing within 60 calendar days at the latest. A defendant can, and typically does, waive his or her right to a speedy preliminary hearing so that the case can go to the prelim setting or pretrial phase, where settlement negotiations happen and so that the defendant’s attorney can take time to prepare the case for preliminary hearing.
Defense Strategies and Tactics at a Prelim:
One of the key things a defense attorney can do at a preliminary hearing is cross-examination of the live witnesses. An effective cross-examination forces a prosecutor’s witness to commit to a certain set of facts because the testimony is under oath and can be used to impeach that same witness at trial, if his or her testimony should change. If the prosecution witness’ testimony is impeached at trial, this witness’ credibility can be fatally undermined and rendered ineffective.
Effective cross-examination can also expose weaknesses in the District Attorney’s case. Prior to the preliminary hearing, the defense attorney only has the witness statements in the arrest reports by which to evaluate the case. It’s difficult to assess the credibility of witnesses based on out-of-court statements not subject to cross-examination. So, a District Attorney might think he or she has a slam dunk case based on the witness statements, only to find out that the witnesses don’t do so well under the stress of an effective cross-examination by an experienced attorney going for the jugular! After an effective cross-examination of their witnesses, the government often becomes much more flexible in plea negotiations.
Conversely, the defendant might believe he or she has a strong defense based on the documentary evidence, only to be disappointed by strong testimony from a credible witness. Since the defendant’s negotiating position is likely to become weaker after such strong testimony, this is where an experienced defense attorney can make a big difference. An experienced attorney can potentially make an accurate assessment regarding the strength of a defendant’s negotiating position (and help the defendant to reach an agreement) prior to preliminary hearing.
The maneuvering that takes place around the time of preliminary hearing is as much an art as it is a science. Our experienced attorneys can help you navigate these dangerous waters and get you onto solid ground.
An Extremely Important Step
It’s highly preferable that you call a lawyer for legal advice as soon as possible. For a completely free consultation, contact Esfandi Law Group now; it’s completely free.
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Seppi Esfandi is an Expert Criminal Defense Attorney who has over 20 years of practice defending a variety of criminal cases.