Thursday, March 22, 2012

Preliminary Hearings In Criminal Cases -- What Are They, And Why?

I am frequently asked several questions by clients about preliminary hearings. "What is a preliminary hearing?" "Why do I have one?" And the most confusing question for them, "Why don't you want me to testify?"

A preliminary hearing in Virginia criminal cases (also known as a "probable cause hearing") is the first full hearing on the evidence before a judge in General District Court. Prior to the preliminary hearing, there was an arraignment, where no evidence is heard, and in most cases a bond hearing, where the judge might have heard an overview of the case. At the preliminary hearing witnesses will testify and a criminal defense attorney will be able to cross examine each witness.

Preliminary hearings have the function to check the validity of the charges, and to determine if the case is suitable for a trial in Circuit Court. Since General District Court judges do not have the authority to make a ruling on felony charges, the procedures set in place have them act as a sort of screener of felony cases. The judge will seek to answer two basic questions. Firstly, is the person standing in front of him the person charged on the warrant? Secondly, has the prosecutor presented enough evidence to establish a prima facie cases? In other words, have they shown some indication of being able to prove each of the elements of the charge? If the answer to both questions is "yes", then the matter is "certified" to the Circuit Court grand jury for the indictment process.

While it is possible for a case to be dismissed at the preliminary hearing, if one of the questions asked above is answered, "no", that may not be the end of the case. The prosecutor may still take the matter to the Circuit Court grand jury for a direct indictment, a sort of appeal of the decision by the lower court judge to dismiss the case. Once an indictment is issued, the defendant is arrested again and must begin the whole criminal trial process anew without the preliminary hearing the second time. Since this is a brand new case, any bond that was previously paid and any jail time accumulated during the first case will not transfer.

There is a common saying about indictments, "any prosecutor worth a damn can indict a ham sandwich." The reason is due to the low burdens imposed on the prosecution at this stage, and the lack of the defense to make much headway. Basically, the deck is stacked against the defendant at this point.

I try to explain it this way. Consider the judge as thirsty, thirsty for evidence. The prosecutor will try to quench his thirst by giving him water. If the judge's thirst is quenched, the prosecutor has met its burden. (As an aside, I am not meaning to imply that judges are prone to convictions. This is just a simile). At the preliminary hearing, the prosecutor is able to fill a glass with the water. Once they have put as much water in the glass as they have, the defense attorney then may take a pin and poke holes in the glass...if he could. Since it's hard to poke holes through glass with a pin, whatever water is in the glass remains, and if the judge's thirst is quenched, he certifies the case. At trial, however, the prosecutor has a higher burden. He must fill a Styrofoam cup. The defense attorney can poke several holes in the cup to drain some of the water. After both sides are done, if there is enough water left in the cup to quench the judge's thirst, he will convict the defendant.

Criminal defense lawyers usually take the opportunity to gather evidence about the case from the testimony of the several witnesses at the preliminary hearing. Witness testimony is under oath, and if any part of their story changes later at trial, that fact can be used in favor of the defendant. In most every situation, the defense attorney will strongly advise his client against testifying at the preliminary hearing, and generally will not present any evidence in defense. The reason is because  the prosecutor has the authority to seek a direct indictment if the case is dismissed, there is nothing gained by "tipping your hand" and showing your defense evidence to the prosecutor at the hearing. The prosecutor will then have the opportunity to plan for such defense at the trial and minimize any benefit to the defendant.

Garrett Law Group, PLC is the firm for Virginia Beach criminal attorneys if you have any questions.

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