I am writing this article so you can understand the value of the preliminary
hearing. The preliminary hearing is that hearing when witnesses are called
to determine whether there is enough evidence to bind a case over for
trial. It is also a major crossroads in the case because once it is over
you are set for trial and you change the readiness department never to
go back to the old department again.
Today, I see a lot of cases go through prelim quickly and I question whether
that is the attorneys just moving the case along to try to get them resolved
and get rid of a case out of their caseload or it is a judgment that this
is in the best interest of the client. I see a lot of cases where there
are issues that should be aired out and the prelim is really one of the
only places where you will get to air out those issues. This article is
about the nature of the preliminary hearing and how it can be used as
a “tool” for your case.
The preliminary hearing, or prelim as it is nicknamed is a hearing where
the prosecution puts on evidence to show that there is a “probable
cause” or a “strong suspicion” that a crime has been
committed and that the defendant is the one who committed that crime.
In trying to streamline the prelim the legislature has made the law so
a police officer can testify as to what people said and not call the actual
witnesses. That is called prop 115 testimony. Also the defendant cannot
ask questions that are calculated to gathering discovery. So our rights
are limited. But in many cases the prosecution puts on actual witnesses
and there is an opportunity to cross examine those witnesses thoroughly.
You can even use the prop 115 witnesses to establish weaknesses in the case.
Where There Is an Issue
If you have a case where there is an issue, you can use the prelim to expose
that issue, and educate the prosecutor to the weakness in their case.
This later can be used to help bargain down whatever the offer was pre-prelim.
I do this regularly. When you have someone that is overcharged the prelim
is a great place to demonstrate that. You might even get a judge to “dump”
the excessive charges. I had a recent case where the judge dismissed the
residential burglary charge in favor of a “trespass” because
the judge believed that the defendant did not have any intent to steal
or commit a felony when he went in the house. Now I am hoping to get a
better deal because the time exposure is less and the DA will be able
to see that the defendant was just paranoid on meth and trying to hide
from the cops when he went into this house. Another typical area where
you might have success is if you are charged with attempted murder. Many
times that is added to a case just to up the bargaining power. You might
be able to show some real doubt that there was any intent to kill making
it a lesser charge of assault (ADW or GBI.) Of course this is a call for
your lawyer after carefully examining the facts.
Doing Nothing or Waiving Prelim
If the facts are pretty clear and you are just trying to keep negotiations
open you may want to “offer” to waive prelim or indicate that
you intend to do no real cross examination of the witnesses. This can
make the DDA softer on extending the offer or extending negotiations till
after the prelim. The less unnecessary work you put the DDA through, the
less they are going to resent you and be harsh. This is especially true
if the victim is very vulnerable. Once you cross examine a victim sternly
then you lose a lot of power to negotiate, especially if the evidence
is pretty strong. So if you gain nothing by cross examination or making
the DDA put on a bunch of witnesses just to prove what is clear then you
might consider “offering” to waive prelim. Sometimes the DAs
will turn down your offer for their own purposes but you, the defendant,
have done nothing to make them angry or to resent you. It is their job
not to resent you if you insist on your rights but we live in a world
of reality and when you make people mad you pay for it!
Murder or Sexual Assault Cases
A lot of times families cannot afford to hire a high quality effective
lawyer for an entire case. One way to get around this and make sure the
case is well “set up” for trial or further handling is to
hire a well- known, high quality lawyer through the prelim. I do this
frequently in murder cases. It is the tactical mind and the time to analyze
the weaknesses in the case that you need when you are charged with a case
like murder or a rape where there is a real question of what happened.
A good lawyer, who has the case from the beginning can make sure the case
is analyzed and set up properly. I just handled a case in LA where a defendant
was charged with murder in a strip club. He went in with a gun to protect
his stripper girlfriend who was getting threats from another stripper’s
husband. Ultimately the husband came to the strip club and attacked the
defendant. The defendant shot him as he was being attacked and then shot
him again when he was on the floor. I was hired to do the prelim and it
lasted 3 days. We established that the victim’s wife had actually
set up her husband for a fight(she didn’t know he would get killed)
and we established that my client was sitting in that club peacefully
protecting his girlfriend when the husband showed up unannounced. The
prosecution and I agreed on the witnesses to be called and they numbered
about 7 or 8(including the victim’s wife, 3 security guards, medical
examiner, and the detective.) At the end the judge bound over but indicated
that if the defendant had not fired the second shot(6 seconds after the
first,) that she would have found it was self-defense.
Now the client is in the position where we have shown the DDA that there
are problems in his case. A good crime reconstruction expert may be able
to show that the second shot was an unintentional discharge which would
probably result in an involuntary manslaughter conviction. The client’s
problems are not over and I have not given all of the facts, but his case
is in a much better position now for a state appointed lawyer to handle.
The issues and the need for certain experts is clear. I am providing the
client with all of my expert and discovery recommendations so his new
lawyer will have a roadmap to a well-defended trial or a deal.
If you are charged with a rape charge and the victim will be called because
the DDA wants to see how credible she is, you may want a high quality
lawyer to handle the case through the prelim. The art of cross examination
is not something that every lawyer can do well and when you have a female
making these kind of allegations you need a good lawyer to take her on
at the hearing. If she doesn’t turn up at the trial and they introduce
her testimony as unavailable you better have conducted a thorough cross
of her at the prelim.
Every case, from the beginning, should be handled “tactically”
and with a broad strategy to get the best result. This starts from the
initial interview with the client and a review of the police reports.
Just showing up and letting the prelim happen without any thorough plan
is not good law practice. Unfortunately it happens too often and who gets
harmed is the client. So plan you strategy and tactics with your lawyer
and make sure that your lawyer can articulate why they are going to handle
the prelim in the manner they describe. It is more critical than you think.