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What is a preliminary hearing?

There are criminal offenses that are not as serious or as grave as those that require proceedings before a grand jury. There are some cases when the police arrest an accused person in the act of committing a crime or arrests a person upon complaint of another person. The public prosecutor or district attorney will then issue a charge sheet indicating the criminal acts committed by the accused, and file this before the judge. The judge will then scrutinize the charging sheet or information for accuracy and sufficiency. The judge will do this during the preliminary hearing.

While the accused is in custody or even if the accused is already out on bail, the court will require the accused person to appear for a preliminary hearing. This is often the first appearance of the accused person in court. At the preliminary hearing, the judge will explain to the accused the charges against him. The judge will also explain to the accused person what his rights are under the charges. If the charging sheet, indictment or information is deficient, the judge may dismiss the charges or give the prosecution the opportunity to present evidence that the indictment or information is sufficient.

Does the accused have to appear at the preliminary hearing?

Yes, it is required for the accused person to attend and appear at the preliminary hearing. The court will usually issue an order requiring the accused to appear with a lawyer at the preliminary hearing. If the accused is out on bail and he failed to appear, the judge will revoke the bail and issue a bench warrant to order the police to bring the accused to appear in court.

Why does the accused need to appear for preliminary hearing?

The issues to be discussed at the preliminary hearing will have consequences on the accused person’s liberty. Thus, he must be present so that he can defend himself and protect his right to liberty. Secret trials are prohibited in liberal democracies such as in California.

Do I need a lawyer at the preliminary hearing?

Yes, when the accused appears before the court, he needs a lawyer. He may stand as his own lawyer and he can defend himself, but the judge will usually appoint the public defender to stand as the lawyer of the accused during the preliminary hearing. If the accused person already has a lawyer, the lawyer will appear with the accused at the preliminary hearing.

What else will be discussed at the preliminary hearing?

The judge and even the accused or the lawyer for the accused may raise the issue of the sufficiency of the charges. The charging sheet, indictment or information may contain charges of two or more criminal acts. The rule is, ever criminal indictment or information must contain only one criminal charge.

The judge or the lawyer of the accused may also raise the issue of the sufficiency of the evidence that the prosecutor possesses – as the public prosecutor may not even have enough evidence to prove that a crime was committed. The evidence in possession of the prosecution may not even be enough to prove that it was the accused who committed the crime charged.

The prosecutor may have filed the indictment or information in the wrong court. Each criminal court may hear criminal charges that are committed within its territorial jurisdiction – that is, the judge can only hear cases that were committed within the county. If it occurred in a place outside the county, then the prosecutor must withdraw the indictment or information and file it in another county.

The prosecutor may have filed the indictment or information after the time limits set by the law. The prosecutor may file indictments or information for only a set number of years. If the indictment or information was filed beyond the time limit or prescription period, the charges can no longer be brought against the accused.

What happens when the judge thinks that the prosecutor has insufficient evidence for the charges brought?

The prosecutor or district attorney will then call on witnesses to show that, indeed a crime had been committed and there is strong likelihood that it was the defendant that committed the crime. The public prosecutor or district attorney will then call the arresting officer or the police officer who investigated the crime. The accused will hear the evidence for the prosecution, so he can know how to prepare his defense. The accused will not be allowed to question the witnesses presented by the prosecution.

What happens after the prosecutor presents witnesses?

The judge will issue a ruling. The judge can do one of two things. The judge may rule to set the case for trial because there is sufficient evidence to charge the accused with the crime. On the other hand, the judge may dismiss the charges against the accused.

If the accused has been in detention during the preliminary hearing, the judge may determine if the accused can be allowed to post bail. If the accused is not a flight risk and the charges are not serious, the judge may set the amount of bail for the temporary liberty of the accused while he waits for the date of the trial.

If the charges are serious and if the prosecutor objects to allowing the accused to post bail, the judge may schedule a bail hearing where both the accused and the prosecutor can present evidence to show why the accused person should or should not be allowed to post bail.

What happens when there is not enough evidence to support the criminal charge in the indictment or information but there is sufficient evidence to charge a lesser offense?

The judge may order the prosecutor and the accused to conduct plea bargaining. During plea bargaining, the accused proposes to plead guilty to a lesser offense if the more serious offense is withdrawn. This is beneficial for the court because a case will be removed from its roster of cases. A plea of guilt to a lesser offense may also be beneficial to the prosecutor who will also reduce his or her case load by one. For the accused, a plea bargain may also be beneficial as the lesser offense may have a penalty which does not require imprisonment: a fine or community service. In all cases, the criminal justice process is shortened faster than if it went through trial.

If a lesser charge is offered, should the accused accept it?

It depends. Here is where having a lawyer is most important for the accused. Pleading guilty to a lesser offense may save the accused time, money and sleepless nights. However, a plea of guilty results in a conviction for a crime appearing on your record. This may affect your job and career options in the future. Going on to trial may seem daunting, but at trial, the complaining witness may not present his testimony well. The police officer may no longer be available to testify. These may mean that you will be found not guilty of the crime because the prosecutor failed to prove the charges brought against the accused. Thus, plea bargaining should be entered when the accused is fully aware of all the possible consequences. At plea bargaining, a lawyer is crucial.

Are you set to appear at a preliminary hearing? Do you want legal representation? Do you wish to know what your options are in case there is sufficient evidence to back up the charges brought against you? Do you wish to have a lawyer present at the preliminary hearing to determine what the weakness of the prosecution’s evidence are? Are you facing plea bargaining and you don’t know what to do? Call any of the Criminal Defense attorneys at the Ramiro J. Lluis Office, we have been defending residents of California in the Los Angeles area for thirty years. We are willing to help.