What’s the Point of a Preliminary Hearing?
If you’ve been charged with a felony, the next step after your arraignment is the preliminary hearing. The purpose of the preliminary hearing is for the prosecution to convince a judge that a felony was committed and that you were the one who committed it.[i] The prosecution will attempt to do this by calling witnesses to testify to your alleged guilt. If the judge agrees that there is enough evidence to suggest that you committed a crime,[ii] your matter will proceed to trial.
At trial, the prosecution will again present witnesses to testify against you. This time, however, instead of trying to convince a judge of your alleged wrongdoing, the prosecution will attempt to convince a jury of 12 random people from the community.
The only way for the prosecution to prevail – and for you to be convicted of a crime – is for the 12-person jury to unanimously agree that you did, in fact, commit the felony that you’ve been accused of.
Why Are We Doing This Twice?
It may seem redundant to conduct both a preliminary hearing and a trial to determine a person’s alleged guilt. Why must witnesses be required to come to court twice to testify, essentially about the same matter?
Believe it or not, the prosecutor’s two bites at the apple actually benefit the accused. A preliminary hearing is meant to ensure that the prosecution actually has enough evidence to prosecute, and hasn’t just built its case on baseless accusations.[iii]
Preliminary hearings also serve a more practical purpose. A trial is a lengthy process that can play out over the course of a few days, a few weeks, even a few months, depending on the complexity of the case. But a preliminary hearing can be completed in a few hours; it is an accelerated version of the trial.
Part of the reason that preliminary hearings are shorter than trials is that the rules of evidence, which are designed to keep unreliable information out, are relaxed.[iv] Preliminary hearings also sidestep the protracted process of picking a jury since, at least at this early stage, the decision of culpability is being made by one individual, a judge, who must assess a person’s alleged guilt to a lesser standard than that of a jury.[v]
Every person accused of a crime is entitled to a jury trial.[vi] But before significant resources are invested in this constitutional endeavor, the prosecution must distill its case to its essence and demonstrate that summoning a jury and adding yet one more case to an already-impacted court docket would not be a waste of time.
Essentially, the purpose of a preliminary hearing is for the prosecution to fish or cut bait.
But you can’t use the preliminary hearing to fish for discovery! [vii]
Can a Preliminary Hearing Help a Defendant?
Yes.
A preliminary hearing may have been designed with the prosecution in mind, but it also affords the defense a strategic opportunity to advance its position.
If a defendant – that is, a person who has been accused of a crime – can successfully undermine the prosecution’s case, then he can create options for himself. Instead of being resigned to his case proceeding to trial, he can work to show why a reduction in charges,[viii] a favorable plea deal, or an outright dismissal of the prosecution’s case[ix] is necessary.
If a defendant can successfully undermine the prosecution’s case, he can show why a reduction in charges, a favorable plea deal, or an outright dismissal of the prosecution’s case is necessary.
The method to making these options a reality is known as cross-examination, which is the critical questioning of the prosecution’s witnesses. With the help of a skilled criminal defense attorney, a defendant may be able to establish a defense to the charges, negate a critical aspect of the prosecution’s case, or undermine the credibility of one of its key witnesses.[x] And if he can do that, then his case is much more likely to result in a favorable outcome.
It is true that many felony cases go through a preliminary hearing and still proceed to trial. But this does not mean that a defendant should view his preliminary hearing as perfunctory. Rather, he should see it as an opportunity to take active steps to improve his position. Unless, of course, he is satisfied with being at the mercy of the district attorney.
Contact a Professional
If you’ve been accused of a felony and would like to speak with someone, help is available. Michael J. Ocampo is a skilled criminal defense attorney and former prosecutor. Michael will discuss with you your options, what to expect at your preliminary hearing, and what steps you can take to defend yourself against the prosecution’s allegations. Contact former prosecutor Michael J. Ocampo at (714) 451-6834 to schedule your free, initial consultation.
[i] Penal Code §866(b). See also Rideout v. Superior Court (1967) 67 Cal.2d 471, 474.
[ii] Technically, the preliminary hearing judge, known as a magistrate, will “hold the defendant to answer” to the charge(s) against him upon a finding of probable cause. Penal Code §872(a). After the defendant is held to answer, his case will be transferred to a different judge known as a trial court judge. The prosecution will then file with this trial court an updated pleading, known as an information, within 15 days Penal Code §§739, 1382(a)(1).
[iii] Penal Code §872(a).
[iv] See, for instance, Penal Code §872(b), which allows police officers to testify to information that they learned from someone else, instead of just to information that they perceived firsthand.
[v] A standard known as “probable cause” or “sufficient cause,” which is significantly less than the “reasonable doubt” standard that is applied in jury trials. See Penal Code §§872(a), (b); 995.In fact, most cases are held to answer at the preliminary hearing stage and proceed to trial.
[vi] Sixth Amendment to the U.S. Constitution. See also Fourteenth Amendment to the U.S. Constitution.
[vii] Penal Code §866(b).
[viii] Penal Code §17(b)(5), when the felony charged is a wobbler.
[ix] Penal Code §995(a)(2)(B).
[x] At the preliminary hearing stage, all cross-examination questions must relate to one of these three lines of inquiry. Penal Code §866(a). Note: In order to conduct effective cross-examination, defense investigation should be performed prior to the preliminary hearing.
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
