A preliminary hearing provides essential tools for the criminal defense team. For example, it allows them to cross-examine the government's case, present defense evidence that argues for reduced bail and seek dismissal of the charges.

When warranted, our law firm uses the “prelim” stage to position the case for the trial court. Hence, the defendant faces the lowest possible charges, stays out of custody, and potentially has negotiating leverage with the prosecutor for a favorable pretrial settlement.

Under California law, a felony criminal case can proceed to a trial court in two ways. First, the prosecutor can obtain a grand jury indictment. The other common way is for prosecutors to file a felony criminal complaint directly.

Notably, the complaint does not establish probable cause or general jurisdiction for the Superior Court to try the defendant.

All charged defendants have a right to a preliminary hearing, or “prelim,” which is a probable cause hearing by a judge. If the judge finds sufficient evidence to establish probable cause, they “bind over” or “hold to answer” the defendant, who is then re-arraigned in the trial court.

Preliminary hearings are similar to bench trials as they have live direct and cross-examination of witnesses, the rules of evidence apply, and the proceeding is adversarial.

However, the stakes for the defendant are substantially lower as they can't get convicted at a prelim. The defendant still has legal rights, such as the following:

• to file motions,
• ask questions of essential witnesses,
• demand discovery from the government.

For this reason, and because of the substantially lower burden of proof, probable cause vs. beyond a reasonable doubt, some lawyers consider the procedure as “just a prelim,” meaning a routine, low-stakes hearing that deserves far less attention than a trial.

Weeding Out Unsupported Charges

However, the preliminary examination is not merely a pretrial hearing. Instead, it is primarily designed to weed out groundless or unsupported charges of grave crimes and to relieve a defendant of a criminal trial. (Bullock v. Superior Court of Contra Costa County (2020) 51 Cal.App.5th 134, 145–146)

At the preliminary hearing, a defendant enjoys “fundamental procedural rights” that are “derived from our earliest criminal legislation (Stats.1851, ch. 29, ss 153, 159) and have remained unchanged since the codification of the Penal Code in 1872.” (Jennings v. Superior Court (1967) 66 Cal.2d 867, 875.)

For example, a defendant may move to suppress evidence based on an unconstitutional search or seizure under Penal Code 1538.5 PC at the preliminary hearing.

Importantly, the defendant must be permitted to present evidence and testimony at the preliminary hearing to the extent that it is “reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness, or the statement of a declarant testified to by a prosecution witness” as defined under Penal Code 866(a) PC.

Denial of this right, either by refusing to allow the defendant to call appropriate witnesses or by limiting cross-examination of the prosecution's witnesses, is not harmless because other evidence is sufficient to establish probable cause. (Jennings, supra, at 880.)

Intent to Call Witnesses

Although not required under PC 866, good practice suggests that defense lawyers notice their intent to call witnesses and provide a written offer of proof as to each anticipated witness sufficient to establish the nature of their testimony and how it complies with the three categories in the statute:

• establish an affirmative defense,
• negate an element, or
• impeach a prosecution witness.

Notably, with minimal creative argumentation, nearly any witness' testimony relevant to the case can be characterized as accomplishing one, or more than one, of those purposes.

For example, in a Penal Code 187 PC murder case, the testimony of the defendant's friend that he received death threats from the victim before the murder might be relevant to negate the crucial element of malice or to establish a defense of self-defense.

In a vehicular manslaughter case, a forensic accident reconstruction expert could be relevant to impeach a testifying police officer about the likely speed or position of an involved vehicle.

A Prelim Can Possibly Avoid a Trial

Some criminal attorneys believe that revealing too much evidence at the preliminary hearing is not a good defense strategy and that it is better to await a jury trial. In some instances, that may be the best approach.

However, as the following examples show, the presentation of defense evidence at a preliminary hearing can sometimes avoid the uncertainty and costs of a jury trial:

• College student was accused of shooting at a police officer. PC 664/187 attempted murder charges were reduced to assault after the presentation of a blood alcohol expert and psychiatric testimony;
• A black belt was accused of causing great bodily injury at a party. The felony was reduced to a misdemeanor and dismissed after testimony from the witness;
• Client was accused of murder and released on reduced bail after extensive evidence of provocation and heat of passion;
• Client was accused of disability fraud and had the case dismissed after defense testimony from an insurance coverage expert;
• Another insurance fraud defendant is dismissed from a co-defendant case after their medical doctor testified at the preliminary hearing.

Suppose any of these defendants had been indicted by a grand jury.  In that case, the first time they would have had the right to “fight the case” and dispute the evidence would have been at a jury trial.

Even if the preliminary hearing court denies a request to present evidence that can be litigated in Penal Code 995 PC motion to dismiss the charges, which the trial court will hear, or in the second instance by the Court of Appeals, challenging the improper denial of the 995 motion.

Again, Jennings and other cases teach that the preliminary hearing is not “just a prelim.” Instead, it is the defense's first and sometimes, given that most cases resolve short of trial, the chance to challenge the government's evidence meaningfully and present defense evidence.

A skillfully litigated prelim can clarify the issues in the case, alert both sides to the relative strengths and weaknesses in their evidence, and often lead to a negotiated resolution in the trial court. 

The criminal defense law firm of Eisner Gorin LLP is located in Los Angeles, CA. You can contact us by phone or through the contact form.

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• Preliminary Hearings in California