Advantages of Waiving a Preliminary Hearing
Pros of waiving your right to a preliminary hearing include to:
- avoid preserving testimony by hostile witnesses that could later be used at trial,
- stall the examination of state witnesses in the hopes they will be unavailable to testify at trial (perhaps because they are sick or will be out of the country, etc.),
- prevent evidence that might affect your bail status,
- “minimize damage” by preventing the prosecutor from adding new charges or enhancements, and/or
- avoid publicity since preliminary hearings are open to the public.
If the hearing gets waived, all the prosecutor is left with are the offenses and information in the complaint.
What are the disadvantages?
Preliminary hearings can be advantageous to you. By waiving a preliminary hearing, you may lose out on the chance to:
- reveal defenses that were not readily apparent,
- reveal witnesses who do a poor job of testifying,
- show the prosecutor there are problems with important elements of the case,
- build a foundation to impeach the prosecutor’s witnesses, and
- provide a basis for plea negotiations.
Evidence that emerges that is helpful to you can convince the prosecutor to reduce or dismiss your charges.
What is a preliminary hearing?
A preliminary hearing is an examination of the evidence in a felony case to determine:
- whether a crime has been committed; and
- whether there is “sufficient cause” to believe you committed it.
Sufficient cause means that after hearing the evidence, a person of ordinary caution would have a strong suspicion of your guilt. The overriding purpose of a preliminary examination is to weed out groundless or unsupported charges.
Your Rights
If you are accused of a felony, you have the right to a preliminary hearing within ten days of your arraignment. In practice, most defendants agree to have the hearing weeks later.
At the preliminary hearing, you have the right to:
- confront prosecution witnesses,
- present evidence at the hearing to negate an element of an offense,
- impeach prosecution evidence, and
- establish an affirmative defense.
Your attorney can help you decide whether to waive your preliminary hearing.
The Procedure for Waiving a Preliminary Hearing
The procedure for you to waive the right to a preliminary hearing is by:
- pleading guilty before or at the preliminary hearing or
- expressly giving up the right to the hearing.
In either case, you must:
- be represented by an attorney at the time of the waiver or
- waive the right to counsel in open court (except capital cases).
After the waiver, an “information” must be filed within 15 days. An “information” may only charge you with the offenses in the original complaint.
Note that even if you wish to waive your preliminary hearing, the prosecutor or judge may still insist that one be held.
Prelims are a good opportunity to to evaluate a witness’s testimony and the strengths and weaknesses of the case.
Additional Resources
For more in-depth information on preliminary hearings, refer to the following scholarly articles:
- The Preliminary Hearing in Los Angeles: Some Field Findings and Legal-Policy Observations – UCLA Law Review.
- The Availability of a First Appearance and Preliminary Hearing – Now You See Them, Now You Don’t – William & Mary Law School Scholarship Repository.
- Post-Indictment Preliminary Hearings – John Marshall Journal of Practice & Procedure.
- Preliminary Hearings in Homicide Cases: A Hearing Delayed Is a Hearing Denied – Journal of Criminal Law, Criminology and Police Science.
- The Right to Counsel at the Preliminary Hearing – Missouri Law Review.
