The Preliminary Hearing
Following the arraignment process is the preliminary hearing often referred to as the prelim. The whole purpose of the prelim is to determine if there is sufficient evidence to have you, as the defendant, answer for the alleged charges.
The prelim basically answers the questions on whether there is enough probable cause to believe that a crime was committed and if there is enough probable cause to believe that you, the defendant, are the person who committed the crime. The burden of proof is on the prosecution but only as to probable cause.
If a defendant's right to a speedy trial has been violated due to an extensive delay, they can file a motion to dismiss due to a lack of a speedy prosecution. Such a motion is commonly known as Serna motions after the 1985 California Supreme Court decision in Serna v. Superior Court.
The prosecution must just show probable cause at the prelim and then during the jury trial, the prosecution must prove guilty beyond a reasonable doubt.
Your Legal Rights
As a defendant you have legal rights that we will make sure you exercise. For one, you have a legal right to an attorney, the right to confront and cross examine witnesses, the right to produce defense witnesses, the right to be free from physical restraint, and more rights that our lawyers will break down and explain to you.
If the judge makes a factual finding that there is no probable cause to try you then that finding is binding on the prosecutor. The prosecution may be able to re-file another complaint or file a motion to reinstate the dismissed counts. Legal findings are not binding and the prosecution may choose to re-file.
During a prelim, the judge may also make the decision to reduce a felony to a misdemeanor. As your criminal attorney, we play a huge part in this and do everything we can to get charges dismissed and/or reduced.
Motion to Dismiss
If the judge finds probable cause as to the charges during the prelim, we, as your criminal lawyer, can file a 995 motions which is another challenge to probable cause. The prosecution, in response to a 995 motion, must offer sufficient proof to each element of the crime being charged.
How Can You Win Your Criminal Case at the Preliminary Hearing?
If you or a loved one is charged with a crime and it's a felony, and you have a preliminary hearing coming up, you want to have a strong attorney ready to fight your case. A preliminary hearing is a mini-trial where the prosecutors have to put on the evidence that meets the elements of each crime you're charged with.
If they can't meet one of the elements at the preliminary hearing, then it's incumbent upon the judge to dismiss the case. We use these preliminary hearings for a couple of reasons:
- One, of course, to weed out weak cases and get them dismissed; and
- Two, to do damage to the prosecutor's case for purposes of trial in the future because everything is under penalty of perjury, and you can use the transcript from the preliminary hearing to attack the witnesses at the trial and also to weaken the prosecutor's case so you can use it to negotiate.
So, preliminary hearings are essential to a person's ability to defend themselves. Don't trust your case in the beginning to some weak experience by letting them do the preliminary hearing and then hand it off to somebody who knows what they're doing because you've taken away half of your arguments.
You've got to get the best attorney from the beginning to attack the prosecutor's case at the preliminary hearing.
Proof Beyond a Reasonable Suspicion
Of course, the way to win a preliminary hearing is to show the judge listening to the case that the prosecutor's case is no good. It's not a very high standard for the prosecutors to prove. They have to prove by a reasonable suspicion that the person committed the crimes, versus in a jury trial; they have to prove the case beyond a reasonable doubt.
So, you have two completely different standards there, so it's pretty easy for prosecutors to prove their case in a preliminary hearing. But unfortunately, many judges don't take these proceedings seriously and are usually just a rubber stamp, letting the prosecutors move to the next phase.
Weeding Out Weak Cases
But I have had success at preliminary hearings. Sometimes you get judges who listen to the evidence and realize how weak the prosecutor's case is, and also realize there is case law that says that a preliminary hearing can be used to weed out weak cases that the prosecutor files.
To do that, you will have to attack the credibility of whatever witnesses the prosecutors decide to call to meet their burden. You can also put on an affirmative defense where the defense calls witnesses to attack the prosecution's case.
We, as defense attorneys, and I've been doing defense work since the early 1990s, don't put on an affirmative defense at the preliminary hearing.
That rare prelim where you've got the prosecutors looking weak based on their evidence put in, and you know the evidence that you're going to be able to put in is bulletproof, and you want to make a run at trying to get the case dismissed.
You don't want to do that if you'll get held to answer at the preliminary hearing. It will get moved to the trial phase because then you're giving the prosecutors a sneak peek at your evidence, and you can bet that when the trial comes, they will be ready for your attack.
You want to spring your attack if the case goes to trial for the first time at the trial, not the preliminary hearing. So, that's a strategic decision, whether you put on an affirmative defense at a preliminary hearing. It's got to be made by your defense attorney.
I've had a lot of preliminary hearings dismissed over the years by attacking the prosecutor's evidence and showing the judge that their case is weak. If you need the best, pick up the phone now. Ask for a meeting with Ron Hedding. Let me put my 30 years of experience to work for you.
If you are facing a crime, contact a lawyer at the Hedding Law Firm a free case review. Rest assured hat we will help you and do everything in our power to get you the best possible results.
