Showing Evidence to Support The Elements of the Crime

Interestingly, many people do not understand a preliminary hearing and how it relates 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. Basically, 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.

Preliminary Hearings In California Criminal Cases

So, if you have a case where they don't have evidence on a point where they don't have evidence on the case, 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, if they wish to can file criminal cases.  That doesn't necessarily mean they can prove them, but they are certainly entitled to file them if they think they can prove them.

In a felony case, you can set the case 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. Now, 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 of the offenses.

A reasonable suspicion at a preliminary hearing is not a very high standard, so that means it's not that difficult for the prosecutors to prove their case if they have the evidence, or at least they have some proof.

Defense Lawyer Cross-Examination of Witnesses

In these preliminary hearings, I often see that the prosecutors put on their case, 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, it looks like 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 is probably multiple folds. Number one, I will try to get the case dismissed if I can. Number two, even if I can't get the case dismissed, I can do some damage to the case, 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 hearing in jury trials, which is all under the penalty of perjury to impeach and attack witnesses. So, we'll be doing the problem, and all of a sudden, they'll say something different than 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 try-able 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 the right move in that particular case.