18 Sep 26
Also called a probable cause hearing, a preliminary hearing is an evidentiary court hearing conducted before trial to determine whether the defendant should stand trial. In this action, the prosecution shall submit sufficient evidence to prove probable cause of a crime and that the accused committed the crime. The standard of proof is not “beyond a reasonable doubt,” and there is no jury involved in a trial.
In this article, you will learn the mechanics and importance of preliminary hearings in California criminal proceedings. The article describes the process, who plays a role in the courtroom, and the criteria for evidence in a California court. Moreover, this guide discusses defense strategies during cross-examination, the court’s possible response, and the legal considerations involved in waiving the hearing to assist individuals through this process.
What Is a Preliminary Hearing in California Criminal Cases?
A preliminary hearing is a court procedure designed to protect the person from the government taking him to trial unless it has a good reason to do so. A judge reviews the evidence presented by the prosecution before a case can go to trial. The following are the rules governing this hearing.
The Standard of Proof/Probable Cause
One misconception is that a preliminary hearing constitutes a determination of absolute guilt. A jury trial is based on the standard of “beyond a reasonable doubt. But the standard for establishing guilt at a preliminary hearing is much lower in California. The prosecution must only show probable cause as defined by s 872(a) of the California Penal Code.
The mandatory requirement of this statute is that the presiding magistrate must decide whether there is “sufficient cause to believe that the defendant is guilty of a public offense. Does not demand absolute proof of guilt or conclusive evidence of all the elements.
Probable cause is the conclusion of a reasonable person after reading the evidence that a crime was committed and that you were probably responsible for it. This is a relatively low standard, and prosecutors often can obtain a holding order. With the relaxed threshold, they don’t have to show all of their evidence. They provide enough circumstantial evidence to get past the judge’s hurdles.
The Timeline for Scheduling the Hearing
California has strict deadlines for your preliminary hearing. If you are still in police custody after you are arrested and arraigned, the court must hold your preliminary hearing within 10 court days under s 859b of the California Penal Code.
The requirement is that the hearing be conducted within this specific time period; it is a strict legal requirement, not a judicial preference. On the other hand, if you’re released on bail, you have the right under the statute to have a preliminary hearing within 10 court days. But the time limit can be extended if this 10-day rule is formally waived.
Attorneys often recommend that out-of-custody defendants waive time so that a thorough defense investigation can be conducted, and courts generally set the hearing date no more than 30 days after the 60-day statutory cap (usually between 21 and 30 days).
The Key Participants in the Courtroom
A preliminary hearing is a more streamlined process than a full jury trial, and only a few key players are involved in the courtroom. It is important to know who is there and what they will be doing to understand the process better and be prepared for what to expect. The main ones are the judge, attorneys, and particular legal witnesses.
The Role of the Presiding Judge
The preliminary hearing judge acts as the one judge in the courtroom and is the final decision-maker. No jury box with your peers to judge the credibility of the evidence. Rather, one magistrate judge hears the evidence, sees the physical evidence, and decides all objections to the evidence submitted by the attorneys.
A judge applies the law to the facts that are presented in the session. When the defense objects to a line of questioning, the judge sustains or overrules the objection as per the rules of evidence. After the closing arguments, the judge makes the final determination whether the prosecution met the probable cause standard and determines the next steps in your criminal litigation.
The Duties of the Prosecutor and Defense Attorney
Both the prosecutor and the defense lawyer have opposing goals at this point in the evidentiary hearing. The prosecutor acts for the state, and it is his or her job to prove that you are responsible for the felony charges at a full trial. They call their own witnesses and present physical evidence to prove only the probable cause standard.
Your criminal defense attorney is your protector and champion on the other side of the courtroom. They are mainly tasked with exposing the truth to the state’s claims. The defense attorney is aggressive in cross-examining the prosecution’s witnesses, attacks the evidence’s legality, and vigorously asserts your constitutional rights.
The Role of Police and Civilian Witnesses
The witnesses provide the foundation for the testimony the state relies on. The prosecutor is very dependent on live testimony to prove the elements of the alleged crime in a typical criminal trial. The traditional rules of evidence are changed by statute in the preliminary examination under s 872(b) of the California Penal Code (as adopted by Proposition 115).
This particular provision allows qualified law enforcement officers to testify to out-of-court hearsay statements by victims or witnesses. It does not, however, require courts to admit hearsay from unsworn civilian witnesses or unqualified officers. This is a practical defense analysis because it enables the defense to protect vulnerable evidence witnesses from early cross-examination. The people sitting on the witness stand are typically one of a few types:
- Lead detectives in charge of the overall criminal investigation
- Initial arresting patrol officers
- Witnesses who were not military and were present at the scene
- Forensic experts are certifying specific evidence, either physical or digital
Step-by-Step Overview of the Preliminary Hearing Process
A preliminary hearing has a specific order of events mandated by California law. Every step from presenting the evidence to concluding the trial presents its own set of opportunities and challenges. This step-by-step explanation describes what happens in the formal legal process.
The Prosecution’s Presentation of Evidence
The prosecutor always starts the proceeding, since the burden is entirely on the government. One by one, the state presents its witnesses to build its case of the alleged crime. The prosecutor’s direct examination is open-ended, and the witness is expected to explain what he or she observed.
If, for example, you’re charged with felony burglary, the prosecutor asks the responding officer questions to establish that a burglary occurred. The prosecution also formally presents physical evidence, including photographs, recovered evidence, or laboratory reports, to the official court record. This is the first presentation you will make that will lead your defense attorney to respond.
Cross-Examination by the Defense
After the prosecutor finishes the direct examination of a witness, your attorney is in charge. In criminal court, cross-examination procedures give your attorney the privilege to ask leading questions, which require only a yes or no answer. This is the most important time in your defense.
Your lawyer challenges the witness’s recollection, examines the witness’s vantage point and aggressively challenges any biases the witness may have. The goal is seldom to utterly destroy the witness. Rather, the questioning methodically undermines the witness’s testimony and reveals flaws in the process. A strong cross-examination provides the state with the opportunity to defend the less compelling parts of its story.
Closing Arguments and the Judicial Ruling
Once the prosecution and defense have presented all their evidence and witnesses and have formally presented their cases, the judge asks for closing arguments. The prosecutor provides a summary and states that the evidence presented is very likely to meet the low standard of probable cause.
They ask the judge to issue a holding order, which will tie you up for trial. On the other hand, your defense lawyer highlights the specific weaknesses in the evidence that were revealed at the hearing. They claim that the state did not link you to the crime, or the evidence is only sufficient for a lesser charge. After these final convincing words, the judge decides the bench and immediately determines what the next steps will be in your case.
Strategic Defense Objectives in the Proceedings
The low burden of proof also means that prosecutors often win these hearings, but defense attorneys employ them as an important strategy. The defense does not just rely on securing a dismissal; it uses the hearing to gather intelligence and establish a strong basis for trial or plea negotiations.
Gathering Crucial Case Information and Discovery
Police reports, body camera footage, and forensic information gathered by the state are open to criminal defendants. But written reports can’t always tell the whole story of a criminal investigation. The defense’s preliminary hearing strategy involves using live testimony to complete the discovery documents.
When a police officer or civilian testifies under oath, the prosecution’s whole theory of the case is presented verbally. You watch the way the people who will testify in front of the jury act, their confidence, and their overall credibility. Your defense’s trial strategy changes when it collects this nuanced intelligence early.
Locking Witnesses Into Sworn Testimony
An official court reporter transcribes all the words spoken during this court appearance, which makes an official, sworn legal record. A high-quality defense lawyer uses this transcript to secure a witness’s testimony for good. Witnesses’ memories fade, or they try to embellish their stories to make them more convincing when the case goes to the jury several months later.
If a witness changes their testimony during the trial, your lawyer uses the preliminary hearing transcript as evidence to impeach the witness. It is extremely disadvantageous to the prosecution if evidence of a direct contradiction is brought to the attention of the jury between the initial sworn testimony and the trial testimony.
Establishing Grounds for Future Suppression Motions
The police must respect constitutional principles when conducting searches, seizures, and interrogations of suspects. When your lawyer thinks the police have breached your 4th or 5th Amendment rights, the cross-examination strategy changes to building a fact pattern for future legal action.
Your lawyer can ask specific, well-thought-out questions that will make your investigation officer explain how they came by certain items of evidence. The defendant has statutory authority to move to suppress, as evidence, any tangible or intangible thing acquired by him/her as a result of an unreasonable search or seizure without a warrant under s 1538.5 of the California Penal Code.
This provision must specifically establish that a constitutional violation has occurred, not merely that there were procedural errors. Strategically, the judge’s grant of the suppression motion deprives the prosecution of the evidence it improperly obtained and on which it seeks to prove guilt.
Potential Outcomes of the Judicial Determination
After the prosecution and defense have presented their cases, the judge must decide whether there is sufficient probable cause. The outcome of this ruling will influence the course of the criminal case. The court typically makes one of three main decisions that have implications for the defendant’s immediate freedom and legal strategy.
The Case Is Bound Over for Trial
The most common outcome of this judicial review is that the judge agrees with the prosecution. If the judge finds that the state has been able to establish probable cause, he or she will enter a formal holding order pursuant to s 872(a) of the California Penal Code. This provision legally empowers the magistrate to order the defendant to answer to the charges in a trial court.
Just because you reach this next phase doesn’t mean that you’re guilty, and it doesn’t mean that you will be convicted. It just means there’s enough evidence for the case to have passed the judge’s initial screening. If this occurs, then the court sets a second arraignment date, and trial preparation begins.
Reduction of Felony Charges
At times, the evidence presented establishes that a crime has been committed, but does not necessarily establish the degree of the original felony charges. For instance, the prosecution may charge you with felony grand theft, but the cross-examination shows the worth of the stolen property is below the statutory felony threshold.
In such instances, the judge can dismiss the felony charge. The judge then seals the case on a much milder misdemeanor charge. A charge reduction will completely change your legal situation and remove the danger of a long state prison term, and keep your basic civil rights intact.
The Effect of “Wobbler Offenses”
Some crimes are designated as “wobblers” in California, which means that the prosecutor has the discretion to charge them as a misdemeanor or a felony. Your lawyer makes a strong request to the judge to use s 17(b) of the California Penal Code during the hearing. This is a specific statutory authority that gives the presiding magistrate the express authority to reduce a wobbler felony to a misdemeanor at or before the preliminary examination.
The statute does not mandate that the judge dismiss the charge, but allows him the discretion to do so after conducting his own analysis. The judge looks at your criminal record, the circumstances of the crime, and the justice of the case. A 17(b) motion can dramatically alter the nature of the litigation and instantly protect you from the dire consequences of litigation.
Discharge of the Criminal Charges
The best-case scenario is if the judge decides that the prosecution utterly failed to prove its case. The judge immediately dismisses the criminal charges if the evidence is not sufficient to establish probable cause. You leave the courtroom without the immediate restrictions of the legal system. In California jurisdictions, however, such a dismissal is normally made “without prejudice. The principle of double jeopardy does not apply at a preliminary hearing.
The California Penal Code provides that an order terminating an action shall not bar prosecution of a felony offense if the action has been dismissed once and the felony offense is a felony. California keeps the express, statutory authority to re-indict a second time on the same felony charges under the “two-dismissal rule.” Prosecutors typically take advantage of this second opportunity to correct procedural errors or present new evidence. Still, the law provides a second chance as long as the statute of limitations has not run out.
Strategic Considerations for Waiving a Preliminary Hearing
Defendants have the constitutional right to waive a preliminary hearing. In most cases, it’s better to proceed with the hearing, but there are certain tactical situations in which it’s extremely beneficial to waive the right to a hearing. It is important to analyze the evidence and to continue negotiating with the presiding prosecution to determine whether to waive or proceed.
Advantages of Proceeding with the Hearing
If the government proceeds with the hearing, it will offer an unprecedented opportunity to test the government’s case. The hearing provides the prosecutor with the opportunity to organize and assess the credibility of the witnesses and to publicly display the prosecutor’s theories of the case.
Overworked prosecutors only review the detailed aspects of a case file a few hours before the scheduled proceeding. The prosecutor knows, at the very moment that your defense attorney is tearing apart a poorly prepared witness on the stand, that there are weaknesses in the prosecutor’s case. This aggressive posture in court can lead to good plea deals. Early exposure of the weaknesses in the police investigation provides maximum leverage to your defense.
Situations Where Waiving the Hearing is Beneficial
Your lawyer may recommend waiving the probable cause hearing proceedings in certain limited situations, even though there are obvious benefits in conducting the state’s evidence. The waiver of this right is a significant tactical move and can completely change the course of the case. Your legal team assesses the risks and rewards and then presents them to the court.
If the defense tries to manage the release of damaging information or to secure a time-sensitive deal, it makes sense to bypass the hearing. There are certain situations where it may be a good idea to waive the preliminary hearing:
- Entering an extremely lenient plea deal with the prosecutor, with the understanding that the prosecutor is explicitly relying on the waiver to spare the court of administrative burden
- Blocking the prosecution from presenting evidence of witnesses whose testimony could uncover new and surprising evidence that could result in further felony charges
- Delaying the trial by allowing your defense experts more time to find a missing witness to your alibi
- Covering up the details of a case or incident that may be very graphic or sensitive to the public eye to prevent bad publicity
Find a Criminal Defense Lawyer Near Me
A preliminary hearing can be a complex process with many rules and standards to follow. This is not a formality but a key opportunity to examine the prosecution’s case, correct witness testimony, and obtain a charge reduction or outright dismissal. An aggressive defense strategy is crucial for uncovering weaknesses in the evidence early in the case, as the prosecution only has to prove probable cause. One wrong move could seal the case for trial, with serious charges still pending, so it is essential to move quickly and have a lawyer with the experience to handle the case.
At Leah Legal, we have extensive experience across all areas of criminal defense and are prepared to advocate for clients in Van Nuys. Free consultation to safeguard your rights and create a strong defense strategy. Contact us at 818-484-1100 to discuss your particular case.
