Goals at the preliminary hearing
Dismissal or a reduction in charges
A dismissal of your case after your preliminary hearing is unlikely because the prosecution has a light evidentiary burden and the rules of evidence are relaxed. Magistrates are disposed to err on the side of letting the case go forward so that the court of general jurisdiction can evaluate the case, especially if the charge is a serious one. They are more likely to entertain arguments that the case is overcharged.
However, charges sometimes are an outright error, and your criminal attorney must assess whether to “go for broke” at the hearing.
Dismissal at the hearing has the obvious advantages of freeing you from detention or bail restrictions, from the uncertainty of pending charges, and the adverse publicity that may result from formal charges.
Because any attempt to have the charges dismissed has a high likelihood of failure, your attorney must take care not to do anything at the preliminary hearing that will harm the defense case later. For example, your attorney should not:
- Expose defense theories that the prosecutor can investigate and refute.
- Open defense witnesses, especially you, to cross.
Furthermore, dismissal may prove a Pyrrhic victory. Apprised of the weaknesses in his case, the prosecutor may improve it and refile.
Even if the defense presentation falls short of convincing the magistrate to dismiss, demonstrating the weaknesses in the case may convince the magistrate to reduce bail to an amount you can make.
Questioning may show that:
- The victim’s testimony is suspect.
- Injuries are not so severe.
- Your involvement was minimal.
Further along in the proceedings, these same three points might justify a more lenient plea and sentence.
Formal discovery is sparse in criminal cases. Even if funds are available for investigation, witnesses may be difficult to find and reluctant to be interviewed. Prosecutors often have little time to prepare witnesses before the hearing, which gives the defense its best chance to hear the witnesses’ unrehearsed story, verbatim and under oath.
Even if a magistrate severely limits cross-examination, or if the hearing reveals no facts previously unknown, the opportunity to hear the witness live and to record that testimony is invaluable to your attorney.
Based on the witness’s testimony at the preliminary hearing, your criminal defense lawyer can start to assess whether to:
- Attack the witness’s credibility at trial.
- Claim that the witness is honest but mistaken.
- Adopt a theory that accepts this witness’s testimony as accurate.
- Avoid trial altogether.
Cold facts about the witness’s background are no substitute. Even educated witnesses with clean records may prove to be inarticulate, twitchy or surly. Likewise, the felon who never completed high school may be charming and charismatic.
Locking in testimony
Your defense lawyer wants to commit the prosecution’s witnesses to a sworn version of events that cannot be changed at trial. When your attorney obtains a favorable concession or even a version of events that is not as harmful as other possibilities, he or she should use short, concrete, specific questions to assure that the witness’s answer cannot be changed or explained later. Questioning also should explore explanations both for the purpose of excluding them and learning them before they become a surprise at trial.
On a charge against a pharmacist for illegally dispensing medication without a valid prescription, a treating physician may testify that based on the lack of an entry in his chart, he did not prescribe the medication on a particular date.
However, he may have no independent present recollection of whether or not he did prescribe the medication on that date. He should be asked if there is any other reason he can say that he did not prescribe that particular medication for that patient. Perhaps he does not believe in that medication for the condition at issue. Or, the patient might have been taking another medication that would have interacted adversely with the particular medication.