Strategy for Preliminary Hearing in San Diego County Criminal Courts

Posted By Bill Nimmo & Raymond Gomez, Attorneys at Law || 15-Oct-2015

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.

Conclusion

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.