Preliminary Hearings in California Felony Cases
This is the defense's first opportunity to attack the prosecution's case. The defense attorney gets the chance to cross-examine each of the prosecutor's witnesses under penalty of perjury.
This gives the defense a chance to lock the witnesses into their story and then go out and investigate what they claim and see if evidence can be established that shows the witness is not telling the truth or has exaggerated their testimony. An effective preliminary cross-examination can destroy the prosecutor's case or damage it enough to set up a successful future negotiation. However, it requires the services of an experienced defense lawyer.
In my experience, the prosecutors and judges (usually the former) try and rush through the preliminary hearing stage and do not allow the defense to gain any ground at this point in the proceedings. The best defense attorneys will fight tooth and nail against this abuse of the process.
Showing Evidence to Support The Elements of the Crime
Interestingly, many people do not understand a preliminary hearing and its relation to a criminal case in Los Angeles. But if you have a felony pending in the San Fernando courthouse, you better figure out what a preliminary hearing is and how it might relate to your case.
Misdemeanor cases do not entitle a defendant to a preliminary hearing. It's only a felony case. After the arraignment, the subsequent major court proceeding will be a preliminary hearing on the road to doing a trial. What it is, is the prosecutors have to put together their case. They have to put on evidence that at least preliminary shows can meet all the elements of the charges.
So, if you have a case where they don't have evidence on a point where they don't have evidence on the subject, but they filed it anyways – that's what people ask me all the time – how can they file that case? They can file whatever they want, just like people can file lawsuits; prosecutors in criminal courts can file criminal suits if they wish to. That doesn't necessarily mean they can prove them, but they are entitled to file them if they think they can prove them.
In a felony case, you can set the point as a defense attorney for a preliminary hearing and make them show the judge what evidence they have that if the case went to trial, would it meet each of the elements. There might be problems with some of their evidence, but that's not necessarily what the test is at a preliminary hearing. The standard at a preliminary hearing is, is there a reasonable suspicion that the person was charged with particular crimes committed each the offense.
A reasonable suspicion at a preliminary hearing is not a very high standard, so it's not that difficult for the prosecutors to prove their case if they have the evidence, or at least they have some proof.
Gathering Available Evidence in the Criminal Case
Another thing is that the prosecutor and judge will not permit the defense to gather all available evidence before conducting the preliminary hearing. This is a particular problem in the Los Angeles criminal court system.
I find myself battling this tendency and not conceding the prosecutor's attempts to hide evidence from the defense, or they are simply too lazy to go and get it. A reasonable defense attorney must demand the evidence and turn over every possible lead to defend their client! During my years of practice as a preliminary hearing defense attorney in San Fernando Valley, CA, I ensured that I had access to all the evidence needed to defend my case.
Defense Lawyer Cross-Examination of Witnesses
I often see what the prosecutors put on their cases in these preliminary hearings, and I am entitled to cross-examine their witnesses. Usually, I can do some pretty good damages to their witness's case at the preliminary hearing. So, my client will say, well, wait a minute. Why didn't' the judge dismiss that case? You destroyed their witnesses at the preliminary hearings. If a judge doesn't dismiss the case, the answer is that they only have to put on evidence of each of the elements that, if believed, they could prove their case.
So, a lot of times, the defense will put on evidence. The prosecutors will put on evidence and say, look, there's an issue here. I'm going to let a jury decide. I'm not going to come in and play jury in the case. I am not usually the one that handles that in a preliminary hearing. My job is to see if the prosecutors put on enough evidence to meet all the elements if the jury believed it, and so that's what they do.
But then, in other cases I've seen, the evidence for the prosecutors is so ridiculous that the judge will say, you know what, I'm not going to let this go past the preliminary hearing. I'm going to dismiss this case. So, to judge that is not easy because you often have police reports, but as soon as a good cross-examiner at a preliminary hearing starts asking questions, the next thing you know, new evidence comes out. The evidence they have can turn sour. There're all sorts of things.
Setting Up Case for Trail
So, I do preliminary hearings if I decide to do them in probably multiple folds. Number one, I will try to get the case dismissed. Number two, even if I can't get the case dismissed, I can do some damage to the point, and then I can use that damage to work out some resolution with the prosecutors, and finally, I'm setting the issue up for trial.
If I can get witnesses locked in under the penalty of perjury, then I can set the particular case up for trial. I can't tell you how many times I've used the transcript from the preliminary hearings in jury trials to impeach and attack witnesses, all under the penalty of perjury. So, we'll be doing the problem, and suddenly, they'll say something different from what they said during the preliminary hearing, and we're doing the jury trial in front of a jury. I'll then get up and say, hey, wait a minute. You just said this.
Didn't you testify earlier in these court proceedings at a preliminary hearing under penalty of perjury, and they're going to have to answer yes, and then I'm going to show them what they said. I'm going to compare it to what they said now. Now they have a big problem because they've contradicted themselves. This is the first step in an effective cross-examination in a San Fernando case to destroy the witness's credibility and win the case.
So, preliminary hearings are critical. There're all sorts of reasons to do them. At the end of a preliminary hearing, you ask the judge to dismiss the case. If the judge denies that motion when you get into the new trial court, you can then file what's called a 995 motion and say to the new judge and say this judge was wrong. We want you to dismiss the case. We don't believe there was enough evidence to hold the client to answer and do a jury trial in this case, and the judge will be forced to rule on that 995 motion. The prosecutor will be forced to defend it.
So, suppose you have a case with some triable issues. In that case, you want to consider doing a preliminary hearing. This is something you should sit down with your criminal defense attorney and decide whether or not a preliminary hearing is a right move in that particular case.
Determining Whether There is Sufficient Evidence
If you have been arrested for a crime and have gone through the arraignment process, the next step is the preliminary hearing, often referred to as the prelim. The prelim is to determine if there is sufficient evidence to justify having you answer for the alleged charges. Make sure you have a defense lawyer on your side for the prelim.
The prelim is the answer to 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. As an experienced preliminary hearing defense attorney, I have provided services in LA County, Encino CA, Burbank CA, Van Nuys CA, and San Fernando Valley.
The burden of proof is on the prosecution to show probable cause. The trial must show probable cause at the prelim, and then during the jury trial, the prosecution must prove you guilty beyond a reasonable doubt. As a defendant, you have legal rights to make sure you exercise as your criminal defense attorney. For one, you have a legal right to an attorney, the right to confront and cross-examine witnesses, the right to produce defense witnesses, and the right to be free from physical restraint. Exercise your rights and contact a preliminary hearing defense attorney.
If the judge makes a factual finding that there is no probable cause to have a trial, the result is binding on the prosecutor. The prosecution may 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.
Retain a Los Angeles Criminal Attorney
If the judge finds probable cause for the charges during the prelim, we do not quit! We can file a motion called 995 motions which is another challenge to probable cause. In response to a 995 motion, the prosecution must prove each element of the charged crime.
If you face a crime, we have the necessary experience, skill, and knowledge to effectively and competently represent you. Contact us for a face-to-face consultation with a preliminary hearing defense lawyer, and we will discuss everything further in detail.