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What is a Preliminary Hearing and What Happens at One?

Posted by Neil Shouse | Jul 02, 2019 | 0 Comments

california preliminary hearing

If someone is charged with a felony in California, a preliminary hearing is an examination of the evidence 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 or prudence would believe and entertain a strong suspicion of the guilt of the accused.

The overriding purpose of a preliminary examination is to weed out groundless or unsupported charges. The guilt or innocence of the accused is not the issue.

At the hearing, a qualified law enforcement officer can testify to hearsay, or certain out of court statements. The victim and other witnesses often do not testify.

Defense witnesses are 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.

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

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

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

Please note, if a felony is prosecuted by grand jury indictment in California there is no right to a preliminary hearing.

What happens at a preliminary hearing in California?

A preliminary examination is held in front of a magistrate, usually a superior court judge. The purpose of the hearing is to determine:

  • whether a crime has been committed; and
  • whether there is “sufficient cause” to believe the accused committed it.

The accused has the right to be present at the preliminary examination and the right to:

  • hear the charges,
  • be represented by counsel,
  • exclude the public (to some extent),
  • confront and cross examine the prosecution witnesses,
  • produce defense witnesses and evidence,
  • obtain discovery, and
  • be free from physical restraints.

Defense counsel may make several motions at the preliminary hearing which are unrelated to the conduct of the hearing itself. These include:

  • the admissibility of a confession,
  • admissibility of eyewitness identification,
  • bail setting or bail reduction, and
  • return of illegally seized property.

At the preliminary hearing, the prosecutor often presents their case through the testimony of a qualified law enforcement officer. Qualified means that the officer has at least five years of law enforcement experience and/or a certain level of training.

The law enforcement officer can testify to hearsay, or out of court statements made by the victim or other witnesses. The alleged victim quite often does not testify. To most people accused of a crime this procedure seems unfair.

Defense witnesses are allowed to testify if their testimony will:

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

After hearing evidence and arguments from the defense attorney and prosecutor, the magistrate will:

  • decide whether to hold the defendant to answer for trial, OR
  • reduce some or all of the charges to misdemeanors, OR
  • discharge the accused and dismiss the complaint.

To hold the defendant to answer the magistrate must find that:

  • acts have been committed which constitute a crime,
  • there is sufficient cause to believe the acts were committed by the accused.

Sufficient cause is a legal standard, much lower than beyond a reasonable doubt. It is “a state of facts that would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.”

If the magistrate finds sufficient cause to hold the defendant to answer, the finding may still be challenged by a defense motion to set aside the information under Penal Code 995.

In California, if a felony is prosecuted by grand jury indictment there is no right to a preliminary examination.

What are Some of the Defense Attorney's Goals at the Preliminary Hearing?

The prosecutor's objective at the preliminary hearing is to establish the required sufficient cause while presenting as little of the prosecution 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 preserve a witness's testimony,
  • to provide a basis for plea negotiations,
  • to evaluate the strengths and weaknesses of the case.

An accused person can “waive” or delay their right to a preliminary examination. But 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 a weak case.

PLEASE NOTE: Experienced criminal defense attorneys know that sometimes a case is more serious than the prosecutor is aware. This is one reason that independent defense team investigation is VITAL in felony cases.

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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