Criminal Law: Preliminary Hearing

Front 1

What happens after bail is set and counsel is appointed at the preliminary arraignment?

Back 1

The defendant will be given a date for his preliminary hearing.

Front 2

What is the purpose of the preliminary hearing?

Back 2

To determine whether sufficient evidence exists which indicates that an offense has been committed and that the arrested person committed it.

Front 3

Why are preliminary hearings considered screening devices?

Back 3

Because they protect the accused from unwarranted prosecution. The accused is spared the time, expense, and embarrasement of having to stand trial if there is insufficient evidence against him.

Front 4

Who is the preliminary hearing usually held before?

Back 4

A member of the minor judiciary such as a magistrate, district justice, or municipal court judge.

Front 5

How long after the preliminary arraignment is the preliminary hearing?

Back 5

The preliminary hearing must be scheduled expeditiously if the defendant is in custody. This usually means 3-10 days from his preliminary arraignment. If the defendant is released on his own recognizance (R.O.R) he is entitled to have his preliminary hearing conducted within 20 days.

Front 6

Are preliminary hearings open to the public?

Back 6

Yes, however occasionally the court will exercise its discretionary power to have a hearing held “in chambers” in especially sensitive cases such as sexual assault that involves minors.

Front 7

What is the burden of proof at a preliminary hearing?

Back 7

The standard of proof required at the preliminary hearing is a prima facie case of guilt. This means “at first glance,” the facts are elicited by the prosecution must make out the elements of the criminal offenses. If so, the matter is “bound over” for trial before the court of general jurisdiction. Otherwise, the charges are dismissed.

Front 8

Why is the preliminary hearing important to the defense attorney?

Back 8

1) the defense is presented its first opportunity to personally observe the type of evidence which the prosecution intends to introduce, such as witnesses, and 2) it serves to perpetuate the testimony of all the witnesses.

Front 9

How is the preliminary hearing used as a limited discovery device?

Back 9

Limited discovery becomes a byproduct of the preliminary hearing because a defense lawyer can learn a great deal about the prosecutions case. Unlike civil litagation, there are no depositions or interrogatories where counsel can examine adverse witnesses. Therefore, through cross-examination at a preliminary hearing, the defense counsel will attempt to learn as much as he can about the prosecution’s case.

Front 10

Can the defendant exercise his right to testify at a preliminary hearing?

Back 10

Yes but it’s ill advised. Virtually all defendants whose cases are heard at a preliminary hearing are “held for court.” Also, if a defense witness testifies, it would benefit the prosecution because then it would be transcribed and could be used to set the stage for the possible impeachment of the witness at trial.

Front 11

What are the prosecutions tactics at a preliminary hearing?

Back 11

To present as little evidence as possible. He does not wish to disclose any more about his case than is necessary. Even if there are multiple witnesses, only use one.

Front 12

Are there circumstances in which the prosecution will want more witnesses to give testimony at a preliminary hearing?

Back 12

If a witness is unavailable at trial, but their testimony is important, his testimony from the preliminary hearing can be tread at trial as an exception to the hearsay rule. As long as the defense has an opportunity to cross-examine at the preliminary hearing, it is not a violation of the 6th Amendment right to confrontation.

Front 13

Can a defendant waive his right to have a preliminary hearing?

Back 13

Yes but it is ill advised.

Front 14

Under what circumstances may it be advantageous to waive a preliminary hearing?

Back 14

If the prosecution witness was old, infirm and likely to die by the time the case comes to trial, the defense counsel may want to waive the preliminary hearing so that there would be no preserved testimony and no notes of testimony could be read at trial. Under those circumstances, the DA would want to preserve the witness’s testimony and not agree to the waivor.

Front 15

What are the requirements for waiving a preliminary hearing?

Back 15

1) a colloquy has to be conducted with the defendant, and 2) defendant must sign a written waiver.

Front 16

What is a colloquy?

Back 16

A series of questions in which the judge determines if the defendant understands what he is doing and the rights that he is giving up.

Front 17

Do the rules of evidence apply at the preliminary hearing?

Back 17

It depends on the jurisdiction. Some jurisdictions apply them more loosely than in the trial stage. However, all jurisdictions permit a defendant the right of cross-examination.

Front 18

What happens after the judge holds the defendant over for trial?

Back 18

The official accusation against the defendant will be prepared.

Front 19

Who prepares the official accusation?

Back 19

It depends on the jurisdiction. In some jurisdictions, the grand jury will return an indictment. In other jurisdictions, where the indicting grand jury has been abolished, the prosecution will prepare an information which is a written accusation that specifies the formal charges against the defendant.

Front 20

What is an information?

Back 20

A written accusation by the prosecution that specifies the formal charges against the defendant.

Front 21

What happens if the court finds that the prosecution has not met its burden of proof at a preliminary hearing?

Back 21

Then the case will be discharged, however this discharge does not have the same sense of finality to it as an acquittal would have at trial.

Front 22

Does the double jeopardy provision apply in the preliminary hearing stage?

Back 22

No, therefore the accused can still be subject to re-arrrest even if the case was discharged at the preliminary hearing.

Front 23

What are some motions that the defense counsel can make before the closing of the preliminary hearing?

Back 23

1) motion to dismiss a vague indefinite charge
2) motion to dismiss for lack of proof
3) motion to reduce the original charges

Front 24

What is a motion to dismiss a vague indefinite charge?

Back 24

The complaint charging the defendant with the crime must be drawn with some degree of particularity. If the complaint is vague and indefinite the defendant has the right to move to dismiss it for being insufficient as a matter of law.

Front 25

What is a motion to dismiss for lack of proof?

Back 25

Defense counsel could say “I move to dismiss on the grounds that the prosecution has not sufficiently proven that a crime has been committed or that the defendant has commited any such crime.”

Front 26

What is a motion to reduce the original charges?

Back 26

For example, murder to manslaughter, robbery to theft, aggrevated assault to simple assault.

Front 27

What are the motions that can be filed after the defendant has been “held for court”?

Back 27

Defense counsel can file a motion to quash for the indictment or information.

Front 28

What is a motion to quash for indictment or information?

Back 28

A motion in which a prima facie case has not been made out. The motion will state that as a matter of law, the prosecution has not proven the elements of the crime that make out a prima facie case. A defense attorney can also file a motion to quash an indictment or information if he finds that defects occurred in the finding or presentation of the charging document.

Front 29

Can the prosecution bypass the preliminary hearing?

Back 29

In some states, the prosecutor can bypass the preliminary hearing by going right to the grand jury for an indictment. Once the grand jury has indicted for the same offenses, the defendant’s right to a preliminary hearing is eliminated.