What are the advantages of waiving a preliminary hearing?
Pros of a defendant waiving the right to a preliminary hearing include to:
- avoid preserving testimony by hostile witnesses that could later be used at trial,
- stall the examination of state witnesses in the hopes they will be unavailable to testify at trial (perhaps because they are sick or will be out of the country, etc.),
- prevent evidence that might affect bail status,
- “minimize damage” by preventing the prosecutor from adding new charges or enhancements, and/or
- avoid publicity since preliminary hearings are open to the public.
If the hearing gets waived, all the prosecutor is left with are the offenses and information in the complaint.
What are the disadvantages?
Preliminary hearings can be advantageous to defendants. By waiving a preliminary hearing, defendants may lose out on the chance to:
- reveal defenses that were not readily apparent,
- reveal witnesses who do a poor job of testifying,
- show the prosecutor there are problems with important elements of the case,
- build a foundation to impeach the prosecutor’s witnesses, and
- provide a basis for plea negotiations.
Evidence that emerges that is helpful for the accused can convince the prosecutor a negotiated settlement is justified.
What is a preliminary hearing?
A preliminary hearing is an examination of the evidence in a felony case to determine:
- whether a crime has been committed; and
- whether there is “sufficient cause” to believe the accused committed it.
Sufficient cause means that after hearing the evidence, a person of ordinary caution would have a strong suspicion of the guilt of the accused. The overriding purpose of a preliminary examination is to weed out groundless or unsupported charges.
Admissible evidence
At the hearing, a qualified law enforcement officer can testify to hearsay. Hearsay is an out-of-court statement made by someone. The victim and other witnesses often do not testify.
Defense witnesses are only allowed to testify if their testimony will:
- establish an affirmative defense,
- negate an element of a crime charged, or
- impeach the testimony or statements of a prosecution witness.
Defendants’ rights
A person accused of a felony has the right to a preliminary hearing within ten days of the arraignment. This “speedy hearing” right is often waived. In many cases, the preliminary examination is held weeks or months later.
The accused has substantial rights at the preliminary hearing. The hearing may be the only time in a felony case that evidence is taken. The accused has the right to:
- confront prosecution witnesses,
- present evidence at the hearing to negate an element of an offense,
- impeach prosecution evidence, OR
- establish an affirmative defense.
What is the procedure for waiving the preliminary hearing?
The procedure for an accused to waive the right to a preliminary hearing is by:
- pleading guilty before or at the preliminary hearing, OR
- expressly giving up the right to the hearing.
In either case, the accused must:
- be represented by an attorney at the time of the waiver, OR
- waive the right to counsel in open court (except capital cases).
After the waiver
After the waiver, an information must be filed within 15 days. An information is the charging document filed by the prosecutor after a preliminary hearing. The information may only charge the accused with either:
- the offenses in the complaint, OR
- any offense or offenses shown by the evidence at the hearing.
Also, an information can only be amended:
- to charge an offense shown by the complaint, OR
- by evidence taken at the preliminary examination.
Note that even if the preliminary hearing is waived the prosecutor or judge may still insist that one be held.
