In felony cases, a defendant is entitled to a preliminary hearing within ten days of the arraignment.  A preliminary hearing is a hearing that is similar to a trial, but there is not any jurors and the amount of proof required is considerably lower.  At the hearing, the prosecutor will present evidence to show probable cause exists to believe a crime was committed and the defendant committed the crime.  Probable cause must be proved for all crimes, prior convictions, enhancements, and special circumstance allegations, unless it is a sentencing enhancement.

The district attorney is not required present all possible evidence or put on all possible witnesses on the stand. In California, Proposition 115 permits the court to make a probable cause determination based on hearsay evidence given by a qualified investigative officer.  In order for Proposition 115 to apply, the investigating officer must be a sworn peace officer, and must be employed as an officer for at least five years or taken a class at the academy.  The consequence of Proposition 115 is that the victims and/or witnesses are not required to testify at the primary hearing and the government may rely on the officer’s testimony about what the witnesses said out of court. The confrontation clause of the Sixth Amendment is not violated because the burden of proof is not equivalent to trial.

Defense counsel will have an opportunity to cross-examine all the government’s witnesses that are called to the stand.  Typically, the defense will not call any witnesses because this is the opportunity for the defense to learn what evidence the government has against the defendant.  Counsel will only produce defense witnesses when it will establish an affirmative defense, to negate an element of the crime, or to impeach a witness.

At the end of the hearing, the judge will make a determination of whether there is enough evidence to justify holding the defendant to answer for the alleged charge.  If the judge finds there is not enough evidence to support a finding of probable cause, the charges and/or entire case against the defendant will be dismissed.

If you are facing a criminal preliminary hearing, don't go it alone. Call an experienced criminal and DUI lawyer now. (559) 447-1240.