How a criminal defense attorney prepares for a preliminary hearing

Before your preliminary hearing, your criminal defense attorney will develop a defense theory to explain why you are not guilty.  At the hearing, he or she will focus questioning on laying the basis for that theory by discovering and locking in testimony helpful to the theory and excluding harmful explanations.  Alternatively, the preliminary hearing may reveal that the expected theory is not viable and direct your attorney to explore a different theory.

Although you may be angry and indignant and want the charges exposed as false immediately, you must understand what to expect from the preliminary hearing.

  • A preliminary hearing is not a trial.
  • Many issues that bother you the most (e.g., the victim’s lack of truthfulness, the officer’s abusiveness) do not matter at all to the magistrate.
  • An overly aggressive cross-examination of witnesses by your attorney may frustrate his or her efforts to discover the prosecution’s case.
  • Your witnesses generally should not testify.
  • You should almost never testify.

Questions for you

Your criminal defense attorney will likely begin preparations by interviewing you.  He or she will want to know:

  • Do you concede that you were at the scene?
  • Do you have an excuse or justification for the conduct?
  • What is your prior history with the victim or witnesses?

This information is indispensable for building defenses, such as entrapment or consent, or beginning to explore the witnesses’ credibility.

During the hearing, your defense lawyer can present your story to the witness in his or her questions and elicit confirmation or denial. Your defense attorney can then prepare for trial knowing which points he or she can make through the witness, and which questions he or she must avoid.

Discovery

Your attorney should obtain from the prosecution whatever evidence the discovery rules of your jurisdiction permit.  The prevailing rule is that the defense has no right to discovery before a preliminary hearing. Nevertheless, the discovery rules of some jurisdictions may entitle your attorney to obtain prior statements of any witness who testifies at the preliminary hearing.

In addition, your criminal defense attorney may demand exculpatory evidence, i.e., evidence in the prosecution’s possession that tends to prove you are not guilty.

Your attorney may also use the hearing as an opportunity to subpoena records from third parties. Your attorney may mark on the subpoena that the witness can avoid a personal appearance at the preliminary hearing by delivering the subpoenaed records to your attorney’s office. This is especially effective for business records, which your defense lawyer then can use to begin investigation, to share with witnesses, and to plea bargain.

Visit the scene

Your criminal defense attorney should visit the scene in preparation for your preliminary hearing.  In some cases, familiarity with the scene is indispensable to understanding whether the crime could have happened as the prosecution describes.

The preliminary hearing offers the defense an opportunity, perhaps the only one, to have the prosecution’s witnesses place themselves by their testimony in locations where they could not have observed what they claim to have seen. By the time of trial, the prosecutor probably will have persuaded the witnesses to reconcile these inconsistencies.

Also, specific descriptions of where witnesses were in relation to each other and to key events are unlikely to appear in police reports or other discovery. The hearing is the time to obtain this information, and often your lawyer can understand and direct this testimony through questions only if he or she has viewed and paced the scene.

Your criminal attorney should bring a camera and photograph the scene.

Interview defense witnesses

In preparation for your preliminary hearing, your criminal defense attorney should interview defense witnesses event thought they likely will not testify at the hearing.  Defense witnesses can:

  • Steer your lawyer toward the successful defense and away from the fruitless.
  • Assist in making sure your version of the events is not improbable.
  • Alert your attorney to concessions prosecution witnesses are likely to make.

Help your attorney to develop the defense theory that should be pursued at the hearing.