What are the Advantages and Disadvantages of Waiving a Preliminary Hearing?

Posted by Neil Shouse | Sep 23, 2019 | 0 Comments

defendant during preliminary hearing

In some felony cases it may be beneficial for the accused to waive the preliminary hearing. (See Penal Code 860). Although unusual, some reasons to give up the right to a preliminary examination include:

  • it avoids preserving testimony of witnesses (especially reluctant ones),
  • bail status might be affected if evidence shows the crime to be aggravated,
  • it locks in the charges and avoids evidence of offenses not in the complaint.

There are also many reasons not to waive the preliminary hearing. In some cases, the examination will:

  • reveal defenses that were not readily apparent,
  • reveal witnesses who do a poor job of testifying,
  • show the prosecutor there are problems with the case.

To give up the right to a hearing, the accused must:

  • expressly waive the right to the hearing,
  • be represented by an attorney.

Please note that even if the hearing is waived the prosecutor or the judge can still insist that one be held. (Penal Code 860)

What are the Advantages to Waiving a Preliminary Hearing?

A defendant facing felony charges can waive the right to a preliminary hearing per Penal Code 860. This is usually done to:

  • avoid preserving witness testimony that could later be used at trial,
  • prevent evidence that might affect bail status,
  • prevent the prosecutor from adding new charges or conduct enhancements.

The procedure for an accused 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, under Penal Code 859a, the accused 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 is the charging document filed by the prosecutor after a preliminary hearing. Under Penal Code 739 the information may only:

  • charge the accused with either the offenses in the complaint, OR
  • any offense or offenses shown by the evidence at the hearing.

Also, under Penal Code 1009, an information can only be amended:

  • to charge an offense shown by the complaint, OR
  • by evidence taken at the preliminary examination.

If the hearing was waived, then the prosecutor is left with the offenses and information in the complaint. Please note that even if the preliminary hearing is waived the prosecutor or judge may still insist that one be held.

What Are the Disadvantages of Waiving a Preliminary Hearing?

The accused has substantial rights at the preliminary hearing. The hearing may be the only time in a felony case that evidence is taken. Under Penal Code 865 & 866, the accused has the right to:

  • confront prosecution witnesses,
  • present evidence at the hearing to negate an element of an offense,
  • impeach prosecution evidence, OR
  • establish an affirmative defense.

Evidence helpful for the accused can convince the prosecutor a negotiated settlement is justified. It is not unusual for a preliminary hearing 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.

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 the accused committed it.

Sufficient cause means that after hearing the evidence, a person of ordinary caution would have a strong suspicion of the guilt of the accused.

  • The overriding purpose of a preliminary examination is to weed out groundless or unsupported charges.

At the hearing, a qualified law enforcement officer can testify to hearsay. Hearsay is an out of court statement made by someone. The victim and other witnesses often do not testify.

Defense witnesses are only allowed to testify if their testimony will:

  • establish an affirmative defense,
  • negate an element of a crime charged, or
  • impeach the testimony or statements of a prosecution witness.

A person accused of a felony has the right to a preliminary hearing within ten days of the arraignment. This “speedy hearing” right is often waived. In many cases the preliminary examination is held weeks or months later.

For further information please see

What are Some of the Goals at the Preliminary Hearing?

The prosecutor's objective at the preliminary hearing is to establish sufficient cause. At the same time, he or she will try and present as little of their case as possible.

Some of the goals of the defense attorney at the preliminary hearing will be:

  • to build a foundation to impeach the prosecutor's witnesses,
  • to evaluate a witness's testimony,
  • to provide a basis for plea negotiations,
  • to evaluate the strengths and weaknesses of the case.

Even if the accused plans to plead guilty, conducting a preliminary hearing may:

  • highlight defenses which were not apparent before the hearing,
  • reveal witnesses who will not hold up well under cross-examination, or
  • demonstrate to the prosecutor the case is weak.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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