Preliminary Hearings in Felony Cases

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.

What is Discovery in a Criminal Case?

A defendant in a criminal case will naturally be afraid of what could happen to him or her. Misdemeanor and felony charges carry the potential for jail and prison time. In addition, defendants face the possibility of future scrutiny in their employment prospects and personal reputation.

The first two questions usually asked by a defendant are: "What did I do? What evidence does the prosecution have?" The process by which a defense attorney obtains the evidence is called "discovery." Discovery is the opportunity for the defendant to find out what kind of case the prosecution will present against the defendant.

During the pre-trial stage of a case, discovery is undertaken by both the defense attorney and prosecuting attorney. Both sides are required to discuss their case. There are not supposed to be surprises at trial. Legal dramas on television and movies are not representative of a majority of real cases.

Discovery is done informally, at first. Sometimes the Judge presiding over the case will have to be involved to handle disputes. Common disputes arise when a defense attorney has reason to believe that the prosecution has not handed over particular evidence. The prosecution must turn over certain evidence, such as:

• witness names and the content of their testimony
• "real evidence," or physical evidence
• evidence that is favorable to the defendant, i.e. "exculpatory"
• felony history of any witnesses for purposes of impeachment
• any "relevant" recorded or written statements

Sometimes attorneys disagree as to what is relevant. A judge will rule once a motion is made by one of the parties. Defense attorneys should be aggressive in pursuing disclosure.

Certain legal principles are supposed to protect a defendant as well. For example, "Brady" violations occur when a prosecutor intentionally withholds exculpatory evidence. Recently, the United States Chief Judge of the 9th Circuit Court of Appeals, Alex Kozinski, criticized California state judges for allowing prosecutorial misconduct. He said that there is an "epidemic of Brady violations..."

Regardless of misconduct or not, it is important for defendants to be aware of their rights. Discovery is important to a case. Sometimes it will lead to a defense verdict. Other times it can help facilitate a favorable plea deal. If you have been charged with a crime, it is important to consult with an attorney. Evidence and its impact on your case can be discussed.

Defending Against a Criminal Threats PC 422 Charge

Anyone familiar with the criminal justice system knows that it is not perfect. Any institution cannot be perfect when the institution is comprised of imperfect human beings. Nonetheless, there are commonplace problems that should be addressed. Until then, a defendant should be aware of how to successfully navigate a criminal threats charge when the facts are scant to support a conviction.

California Penal Code section 422 defines "criminal threats" as willfully threatening to kill or severely harm a victim. It is a "wobbler" crime, meaning that it can be charged as a misdemeanor or felony. However, prosecutors will routinely charge it as a felony to gain an advantage in the plea bargaining stage of the case.

Like with any other crime, the prosecution has to prove each element of the alleged violation beyond a reasonable doubt. The elements of Pen. Code section 422 show that it may be difficult to prove each element beyond a reasonable doubt when there exist facts favorable for the defendant. Let me explain, by first stating each element of the crime.

• Defendant willfully threatened to unlawfully kill or cause great bodily injury (GBI) to another person or person's immediate family (from here on out we will exclude the section regarding a person's family)
• Defendant made the threat orally, in writing, or by electronic communication device
• Defendant intended that his or her statement be understood by the person as a threat
• The threat was so clear, immediate, unconditional, and specific, that it communicated to the person being threatened a serious intention and the immediate prospect that the threat would be carried out 
• The threat actually caused the person to be in sustained fear for his or her own safety and
• The threatened person's fear was reasonable under the circumstances.

After an examination of the elements, one should be able to see how a criminal threats charge could be effectively defended against. Not all perceived "threats" fall under the purview of PC section 422.

For example, a threat made in jest between two friends would not be a chargeable offense. A conditional threat, as well, could not lead to a conviction: "I will hurt you if you continue to date that person..."

Similarly, a threat must cause a sustained fear in the person threatened. Say a defendant is mentally ill. While experiencing a psychotic episode, the defendant makes a criminal threat against a law enforcement official. Prior to the threat, the law enforcement officer knew or should have known that the defendant was a mentally ill person. Further, the defendant, outnumbered by six other officers, had no way of carrying out the threat. The hypothetical above would likely end with an acquittal.

A criminal charge is not a criminal conviction. A prosecutor may charge a defendant with a criminal threats charge, but there may be facts that support a dismissal or acquittal.