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Should A Defendant Testify At Preliminary Hearing In A California Criminal Case?


Preliminary Hearings are meant to be hearings for the judge to determine whether or not the prosecutors have met their burden at least prima facie in reference to each of the charges charged against a criminal defendant in Los Angeles.

Elements of the Crimes in California Criminal Cases

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

So, it’s not a very high 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 perfunctory 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.

Now, on the flip side, defense attorneys and me in particular, I think preliminary hearings are very important because you can lock witnesses in under penalty of perjury on statements. You can confront them with inconsistent statements. You can attack their credibility. You can really get a peek at what the prosecution’s case is going to look like in a jury trial so you can prepare for the jury trial.

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

So, this question as to whether or not a defendant should testify really has to do with whether or not by the defendant testifying, you could win the case outright at the preliminary hearing.¬†Because, if you can’t and there’s a chance that the case is going to go to trial.

You don’t want to share with the prosecutor exactly what the defendant is going to say because then they are going to get ready for it at the trial. Defendant may say a lot of great things and now the prosecutors are going 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 and 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.

So, that doesn’t happen very often, but if does happen 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.

Contact a Los Angeles Criminal Defense Lawyer

You want the prosecutors to see your client’s version of events and then compare that to the evidence that’s going to be presented at the preliminary hearing, so they can really get a feel for how strong or weak their case is, and that might be a reason to have the defendant testify at a preliminary hearing in Los Angeles. Contact a California criminal defense lawyer at our law firm for help.

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.

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About the Author

Named Top Los Angeles Criminal Attorney by LA Times and named one of the Top 100 criminal defense attorneys in California by the National Trial Lawyers Association. I'm the attorney other lawyers hire to defend them.