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Preliminary Hearings (Overview)

The preliminary hearing (prelim) is part of a criminal prosecution for an alleged felony crime. It is the hearing where the district attorney must show the judge that there is enough evidence in the case to proceed with prosecution. In legal terms, the preliminary hearing is a probable cause hearing where the district attorney must demonstrate to the judge that he has sufficient evidence to justify prosecution. If the district attorney proves to the judge that there is sufficient evidence to justify prosecution then the judge will hold the defendant to answer. To hold a defendant to answer simply means that the judge will not dismiss the criminal allegation for lack of sufficient evidence and the defendant may continue to be prosecuted by the district attorney (including prosecution through trial if necessary).

Note: A preliminary hearing is not a trial. A preliminary hearing is criminal court hearing where the judge will listen to the district attorney's basic evidence and reason for prosecuting the defendant. If the judge agrees that there is enough evidence to continue to prosecution beyond the preliminary hearing then the judge will hold the defendant to answer. It lay terms, this basically means that the defendant's case is proceeding to trial; however, many criminal charges may be dismissed or settled through a negotiated plea before the case reaches the actual trial stage. 

Timing: The preliminary hearing was developed over the years as a defense to prosecution. Before the preliminary hearing was developed a defendant could be held in jail indefinitely solely on the criminal accusations leveled against him. Today, a defendant has a right to put the prosecution’s evidence to the test at an early setting so that the prosecutor cannot incarcerate a defendant for weeks, months, or even years as the prosecutor continues to collect evidence and investigate a crime. Today, a defendant in a felony case has a right to a preliminary hearing within the following time requirements:

A preliminary hearing must commence with 10 court days of the defendant's arraignment unless the court finds good cause to continue the preliminary hearing. In any event, the preliminary hearing must be commenced within 60 calendar days even if the court finds good cause to continue the 10 day rule. A defendant may waive this speedy preliminary hearing right with the court’s permission. In fact, a defendant can waive the entire preliminary hearing. Also, when the court suspends criminal proceedings in a case involving the mental competency of the defendant then the court must reinstate the defendant’s rights to a preliminary hearing as laid out above, unless the preliminary hearing was already held in the defendant’s case when the criminal proceedings are reinstated.

Note: Special timing considerations apply to cases that involve co-defendants where one defendant does not want to "waive time" but another defendant wants to "waive time" and to continue the preliminary hearing to a date outside the statutory time frame.

Preliminary Hearing Day: A preliminary hearing is really an opportunity for the district attorney to show the judge that there is sufficient evidence to hold the defendant to answer for the alleged offense; however, that does not mean that the defendant has no ability to defend at the preliminary hearing. Most criminal defense attorneys will attempt to either induce, or lock-down favorable evidence from prosecution witnesses, especially officer testimony. Also, the defense attorney also has the right to object to evidentiary issues at the preliminary hearing; however, evidence rules are relaxed at preliminary hearings, which makes defending at the preliminary hearing more difficult for defense attorneys than at the actual criminal trial (if the case ever proceeds to trial). Defendants also have the right to present some evidence for a limited purpose at the preliminary hearing.

Prelim Rights: The defendant has rights at a preliminary hearing. These rights include, but are not limited to, the following: Right to a continuance in order for newly appointed counsel to prepare, right to remain silent, right to the evidence that the prosecutor will use against the defendant, right to testify, right to an uninterrupted hearing, right to cross-examine witnesses, right to have the hearing transcribed, right to an interpreter, and more.

Note: The defendant also has the right to a suppression request at the preliminary hearing (motion to suppress evidence). There are benefits and detriments to bringing a contemporaneous motion to suppress with the preliminary hearing. A motion to suppress brought contemporaneously with a prelim is beyond the scope of this brief overview. For more information on the rights and defenses available at a preliminary hearing, including the right to request a suppression of prosecution evidence, contact our criminal defense lawyers for a free consultation.

Prop 115 Cases: There is a special rule in preliminary hearings that allows the prosecutor to present hearsay evidence. Essentially, this means that a testifying officer at a preliminary hearing may state what other persons have stated, even though the person who originally made the statement is not present for the defendant to effectively cross-examine. A Prop 115 preliminary hearing means that an entire case can be presented against the defendant by one testifying officer. Of course, at a subsequent criminal trial, the prosecutor must present the live witnesses who made statements when those witnesses are available so that the defendant may effectively cross-examine those witnesses.

PC 17b: At the conclusion of a preliminary hearing the defendant’s attorney will often argue that the defendant’s felony charges should be reduced to misdemeanor charges based on any mitigating circumstances deduced at the hearing. This is allowed for felony crimes that could have been charge alternatively as a misdemeanor (wobbler crimes).

Note: If the defendant is held to answer at the conclusion of the preliminary hearing then the defendant will be on a trial footing. This does not mean that the case will not settle through a negotiated plea deal before the case ever gets to trial, but it does mean that the prosecutor is more invested in the case and the case is less likely to settle. In fact, in some case, after the defendant has proceeded to a preliminary hearing, the district attorney is legally forbidden from settling the case without court permission (PC 1192.7).

Appeal: The defendant and the prosecutor may appeal the decision of the court after a preliminary hearing. The primary method of appeal for the defendant is through a 995 motion where the defendant essentially asks another judge to reconsider the prelim judge’s rulings.

Negotiations before Hearing: In some cases, where the defendant is charged with a serious felony, the district attorney will not be able to settle the case without new evidence first emerging after the prelim. This is why many criminal cases end by negotiated settlement (plea deal) before the case ever proceeds to a preliminary hearing.

Finally, if the judge dismisses the criminal allegations at the conclusion of the preliminary hearing the district attorney may usually refile the criminal charges; however, the district attorney is limited in how many dismissals it may suffer before a dismissal of criminal charges are ordered with prejudice (cannot be refiled); therefore, the district attorney does not treat a preliminary hearing as an endless supply of attempts to prosecute. Preliminary hearings are prosecuted thoroughly, aggressively, and smartly by prosecutors and that is exactly why a defendant needs an experienced criminal defense attorney on his side during this important process.

If you or a loved one is charged with any misdemeanor or felony crime contact our criminal defense lawyers for a free consultation. Our experienced and successful lawyers have handled hundreds of criminal cases in the Inland Empire. We can help you too. Call today!


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