A lot of our blog posts touch upon the subject of criminal procedure. The reason: defendants should be aware of what is going on in their case. Too often, defendants are ignorant of what they must accomplish to be cleared of the charges against them. Knowing the different burdens of proof, obstacles, and objectives will only assist the attorney in his or her representation.
With that preface, let us discuss preliminary hearings, commonly referred to as "prelims." A felony case begins with a complaint being filed. A complaint lists out allegations, or criminal charges, against the defendant. Once the defendant is arraigned, where the court explains the charges against the defendant and asks the defendant to enter a plea of guilty or not guilty, a preliminary hearing is set within ten days, unless time is waived (a time waiver allows hearings to be scheduled further out).
A prelim is a probable cause hearing. A judge, or magistrate, hears evidence and then determines whether there is sufficient probable cause to find that the defendant must "be held to answer." Held to answer is a legal term, which means that there is enough evidence for the defendant to stand trial for the charges itemized in the complaint.
The court may dismiss some charges (even all, at times), however, if he or she believes that there is insufficient probable cause. Probable cause is a lower burden to meet than proof beyond a reasonable doubt. Probable cause is met when there are facts that would lead a man of ordinary care and prudence to believe and hold a strong suspicion that the defendant is guilty of a crime.
It is not enough if the prosecutor can only prove some of the "elements" of the crime. All elements of the charged crime must meet the threshold of probable cause, or the charges must be dismissed.
At the defendant's preliminary hearing, an attorney may be present. Most constitutional rights that would apply at trial are also applicable at preliminary hearing. A defendant may cross examine prosecution witnesses. Evidence may also be presented by the defendant to negate an element of the charged crime. There is also a right to discovery, where the prosecution must disclose all exculpatory (helpful) evidence.
Strategically, an attorney may feel that a preliminary hearing is futile, but insist that one take place anyway. Why? He or she will get an opportunity to hear a preview of the prosecution's case against the defendant. It helps prepare the defense attorney for trial. Another reason: an attorney may want to impeach a witness at trial, when there is a likelihood that the witness will testify differently at preliminary hearing. Other times, an attorney may advise that the defendant waive his right to a preliminary hearing --like when there is plenty of evidence to find probable cause.
Defendants should always consult with a criminal defense attorney prior to the preliminary hearing. As stated above, there is a possibility that the case will be dismissed at preliminary hearing. But, more likely than not, if a defendant is not prepared or ready, he or she will "lose" at the preliminary hearing. Thus, a diligent defendant will seek out representation before he or she goes forward to prelim.