This is a good question about why do they do preliminary hearings?  What are they used for?  What's the significance to a criminal case?  The reality is that a preliminary hearing is only something that is available and utilized if the person is charged with a felony.

You're not entitled to a preliminary hearing if you're charged with a misdemeanor.  Basically, what this is, it's the government — the prosecutors having to meet certain elements and satisfy the prima facia case when they've got somebody charged with different crimes.

It really amounts to being mini trial, where the prosecutors have to put on evidence through witnesses and other evidence at a hearing where a judge sits.  The defendant is there.  The defendant's lawyer is there and because the government has the burden, they're the ones that call the witnesses.

The defense attorney gets to cross-examine the witnesses, and when the government is done putting on all of their witnesses, they should have been able to satisfy all of the elements of each of the crimes.

If they did, then the case will be moved on to the next court which will be the trial court and the person is entitled to have a trial.  At the end of the prosecution's case at a preliminary hearing, the judge will ask the defense, do you have any affirmative defense?

What the judge is asking, are you going to put on any evidence?  If you're going to try to put on evidence at a preliminary hearing, the defense will usually have to explain to the judge why you're calling those witnesses and what evidence you're proposing to put on because he's not going to waste time here because it is the preliminary hearing.

This means it's not going to be some huge, long event and the judge is not going to allow you to put on evidence if he or she believes it's a waste of time. So, what you'll have to do is say, I'm putting this evidence on to negate the elements of the crime and then explain to the judge what type of evidence you're putting on.

Or you're putting on this evidence to impeach the main witness in the case — impeach their credibility — and once they're credibility is impeached, then I'm going to make the argument that they shouldn't be believed by you and, therefore, the case should be dismissed.

Prosecutor Only Has To Prove Reasonable Suspicion

At a preliminary hearing, the prosecutors have to prove their case by a reasonable suspicion. So, that's not a very high standard.  That's not beyond the beyond a reasonable doubt standard that is required at a trial.  So, a lot of time these preliminary hearings go fairly quickly.

I would say the average preliminary hearing in Los Angeles county is twenty or thirty minutes.  Where you start to get into lengthy preliminary hearings is where there's a lot of evidence and there's real serious charges.

But what I would say the purpose of the hearing is for the prosecutors to show their case and it's part of a law that they have to do a preliminary hearing.  So, that's part of the purpose.

But I think from a defense standpoint, the preliminary hearing can be used to either get the case dismissed — which is very difficult to do — or do damage to the prosecutor's case and their witnesses in a preliminary hearing.

Remember, people are testifying under penalty of perjury, so you can start to get and build your defense.  I can't tell you how many times we do a very effective job at a preliminary hearing, the case ends up going to trial.

The witness, realizing they made mistakes at the preliminary hearing then tries to change their testimony and an effective cross-examiner is able to point out to the jury that they already testified under penalty of perjury about an important issue and they've lied about it.  They said something different at the preliminary hearing where they put their hand up and swore to tell the truth.

So, it's a very effective thing for a defense attorney use during a trial to show the jury that the witness lied during the preliminary hearing and now look, they're saying something different at the trial — both of which are under penalty of perjury.  So, that's one way that a preliminary hearing can be used.

Los Angeles Criminal Defense Lawyer

Another way is, after the preliminary hearing — if you're trying to get a better deal or a better resolution for your client — you can show the prosecutors some of the inconsistencies between the preliminary hearing and evidence that you've developed through investigation, or the preliminary hearing and the police reports.

Maybe somebody said something totally different to the police than what they said during the preliminary hearing related to an important issue which the prosecutors are going to have to prove.

So, in my opinion, preliminary hearings are very important.  I don't just treat them as something that I'm going to just quickly go through.  I treat it as an opportunity to do damage or get the prosecutor's case dismissed.  That's the way preliminary hearings should be utilized by the defense. Contact the Hedding Law Firm for help.