The primary purpose of preliminary Hearings in Los Angeles is for the judge to assess whether the prosecutors have met their burden, at least prima facie, for each of the charges against a criminal defendant.

What that means is that every crime that anybody could be charged with within Los Angeles has elements. Certain things have to be proved. Usually, the elements are broken down into two, three, four, and five elements. At a preliminary hearing, the prosecutors just have to present evidence that, if believed by a jury, would meet each of the elements of the charges in the criminal case.

So, it's a low standard that they have to meet. It's not beyond a reasonable doubt when it comes to a preliminary hearing. That's saved for a jury trial.

So, really, the prosecutors and judges take the mentality that these hearings are just kind of superficial, and as long as they have some evidence, they're going to let the case go to trial. They're going to hold the person to answer at the preliminary hearing.

On the other hand, defense attorneys, including myself, consider preliminary hearings to be of utmost importance. They provide an opportunity to lock witnesses into their statements under penalty of perjury, confront them with inconsistencies, and challenge their credibility. This allows us to gain insight into the prosecution's case for the upcoming jury trial, enabling us to prepare effectively.

Is it Possible to Win the Case at the Preliminary Hearing?

The decision of whether a defendant should testify at a preliminary hearing is contingent on the potential to win the case outright. If this is not feasible, the case is likely to proceed to trial.

You don't want to share with the prosecutor exactly what the defendant is going to say because then they will have to prepare for it at the trial. The defendant may say a lot of great things, and now the prosecutors will have to try to get witnesses to counter that at the trial.

Whereas if the defendant doesn't testify at the preliminary hearing and only testifies at the trial, a lot of times – not always – it's too late for the prosecutor to get witnesses to counter what the defendant is going to say. It's too late because the prosecutor has already put their case out there before the defendant testifies, so now the defendant has heard everything. That's one of the big advantages a criminal defendant has in Los Angeles.

Prosecutors Have Burden of Proof

First, you have the presumption of innocence, then you have the fact that the prosecutors have the burden, so they have to go first to put on their evidence, and now you can listen to everything and then make your move as far as your testimony.

So, the question becomes, why would you give them a sneak peek at what you're going to testify to by testifying at a preliminary hearing? The only reason that I could see doing that is if you thought the preliminary hearing was so weak and that you might be able to win it and your testimony would be the extra testimony to win the case.

That doesn't happen very often, but if it does, then that might be a scenario where a defendant would testify at a preliminary hearing. Otherwise, most defense attorneys in Los Angeles and across the country, including myself, are not going to have their clients testify at the preliminary hearing.

Another reason you might want to have a defendant testify at a preliminary hearing, which I've used before – and I've seen other defense attorneys use – is you're going to work a deal out in the case because they do have some evidence against your client for something.

You want the prosecutor to really see how weak their case is and some of the issues in their case, and the best way to do that is for your client to testify. If that's the scenario, then that might make sense because you never have any intention of going to trial, but you want the prosecutors to see what a strong witness your client would make.

Ultimately, the decision of whether the defendant should testify at a preliminary hearing is a strategic one. You want the prosecutors to see your client's version of events and compare it to the evidence. This can give you a clear advantage in understanding the strength or weakness of their case, and it might be a reason to have the defendant testify at a preliminary hearing in Los Angeles.

But, for the most part, you don't want to have the defendant testify at a preliminary hearing because you don't want to take away the element of surprise that you have at a trial by waiting until the last minute for your client to testify.