Posted on March 10, 2017

What is a California Preliminary Hearing?

In California, a defendant has a statutory right to a preliminary hearing when accused of any felony offense, unless the District Attorney obtains an indictment from the grand jury.  A preliminary hearing ensures there is sufficient evidence to sustain the charges against a suspect.

Every crime carries elements the prosecutor must prove.  The evidentiary standard in a preliminary hearing is probable cause, far lower than the beyond a reasonable doubt standard in a criminal trial.

In this hearing, the prosecutor must prove each element of the crime sufficiently to move forward in their case.  If a prosecutor fails to sufficiently prove their case, the judge will dismiss the complaint.  However, a prosecutor may elect to file charges a second time.

Often, prosecutors do not present all the evidence in their case.  Instead, as a tactical reason, prosecutors produce only the minimal evidence required to meet their burden of proof.  Furthermore, the prosecutor often calls police officers as witnesses at preliminary hearing because officers are generally able to testify to one-layer of hearsay.  In fact, an entire preliminary hearing in a murder case can be proven sufficiently by calling only a single police officer.

There are limitations when the defense intends to call witnesses.  If the defense elects to put forth evidence, the court will confine the witnesses to a specific affirmative defense.  Defenses include, alibi, impeachment, self-defense, or evidence tending to negate an element of the crime.  The judge usually inquires as to a witnesses offer of proof to the case.

A defendant has a right to testify at preliminary hearing but it is not recommended.  These hearings are critical for the defense because it allows the defense to observe the prosecutor’s intended witnesses at trial and allows the defense to question and explore the witnesses in preparation for a defense later at trial.

For more information or to schedule a free confidential consultation, contact an Orange County Criminal Defense Attorney at the Law Offices of John D. Rogers.

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