Presentation of defense evidence at State Court preliminary hearing

A preliminary hearing provides important tools for the defense team: to cross-examine the government's case, put on affirmative defense evidence, argue for reduced bail and seek dismissal of charges. When appropriate, our law firm uses the "prelim" stage to aggressively position the case for the trial court, so the client faces the lowest possible criminal charges in front of the jury, is out of custody, and also possibly has more negotiating leverage with the prosecutor's office to obtain a favorable pretrial settlement.

Under California law, a felony criminal case can reach the trial court in one of two ways. First, similar to the significant majority of federal criminal cases, the prosecutor can obtain a grand jury indictment. The second, and far more common avenue in state court, is for the prosecutor to directly file a felony criminal complaint. The complaint does not establish probable cause and does not create general jurisdiction for the Superior Court to try the defendant. A defendant charged by complaint has a right to a preliminary hearing, or "prelim," which is a probable cause determination by a judge. If the judge finds sufficient evidence to establish probable cause, he or she "binds over," or "holds to answer," the defendant who is then re-arraigned in the trial court.

Preliminary hearings are similar to bench trials in many respects. They feature live direct and cross-examination of witnesses; the rules of evidence (though relaxed in some respects) apply; the proceeding is adversarial; etc. However, the stakes for the defendant are substantially lower. The defendant cannot suffer a conviction at a prelim. Most important rights the defendant enjoys - to file motions, to ask questions of important witnesses, to demand discovery from the government - are not waived or forfeited just because they are not asserted at prelim. For this reason, and likely because of the substantially lower burden of proof - probable cause vs. beyond a reasonable doubt - some practitioners fall into the habit of regarding the procedure as "just a prelim," meaning a routine, low-stakes hearing deserving of far less attention than a trial.

Case law instructs otherwise. "The preliminary examination is not merely a pretrial hearing. Rather, it is a proceeding designed to weed out groundless or unsupported charges of grave offenses and to relieve the accused of the degradation and expense of a criminal trial." (Bullock v. Superior Court of Contra Costa County (2020) 51 Cal.App.5th 134, 145-146, internal citations and quotation marks omitted.) At the preliminary hearing, the 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 on the basis of an unconstitutional search or seizure under Penal Code § 1538.5 at the time of the preliminary hearing.

Perhaps most important among these rights, 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." Penal Code § 866(a). 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 merely because other evidence is sufficient to establish probable cause. (Jennings, supra, at 880.)

Although not specifically required under Section 866, good practice suggests that defense counsel 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: to establish an affirmative defense, to negate an element, or to impeach a prosecution witness. Note, however, that with a minimal amount of creative argumentation, nearly any witness' testimony which is relevant to the case could be characterized as accomplishing one, or more than one, of those purposes. In a murder case, the testimony of the defendant's friend that he received death threats from the victim prior to the date of the murder might be relevant to negate the element of malice, or to establish the affirmative defense of self-defense. In a vehicular manslaughter case, a forensic accident reconstruction expert might be relevant to impeach the testimony of a testifying police officer about the likely speed or position of an involved vehicle.

Some lawyers believe that revealing too much evidence at the preliminary hearing is not a good strategy and it is better to await a jury trial. In some instances, that may be the best approach. However, as the following examples demonstrate, presentation of defense evidence at preliminary hearing sometimes avoids the uncertainty and costs of a jury trial: (a) college student accused of shooting at a police officer - attempted murder charges reduced to assault after presentation of a blood alcohol expert and psychiatric testimony; (b) a black belt accused of causing great bodily injury at a party - felony reduced to misdemeanor and dismissed after testimony from percipient defense witness; (c) client accused of murder released on reduced bail after extensive evidence of provocation and heat of passion; (d) a client accused of disability fraud has case dismissed after defense testimony from insurance coverage expert; (e) another insurance fraud defendant is dismissed from a co-defendant case after her medical doctor testified at the preliminary hearing. Had any of these defendants been indicted by a grand jury, 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 the defense request to present evidence, that issue itself can be litigated in the first instance in a motion to dismiss the charges under Penal Code § 995, which will be heard by the trial court, or in the second instance by the Court of Appeals challenging the improper denial of the Section 995 motion. Again, the teaching of Jennings and other cases is that the preliminary hearing is not "just a prelim." It is the defense's first and sometimes, given that most cases resolve short of trial, only opportunity to meaningfully challenge the government's evidence and present defense evidence. A skillfully litigated preliminary hearing can clarify the issues in the case, alert both parties to the relative strengths and weaknesses in their evidence, and oftentimes lead to a negotiated resolution in the trial court.