Why I Never Waive a Preliminary Hearing

Okay, never may be a bit misleading, but it isn’t completely inaccurate. It’s very rare that I will waive a preliminary hearing, and there are very specific circumstances for doing it – waiver is required for admission into ARD, there’s a plea deal which requires the client to waive, or there’s some other direct benefit to the client. Before I tell you why I don’t waive preliminary hearings, let me first explain what their legal purpose is.

A prelim, as we call it, is essentially an evidentiary hearing. The prosecution merely has to show a “prima facie” case against a defendant. It’s an extremely low standard. All they have to show is that there’s some evidence that a crime was committed and more likely than not, the defendant is the person that committed the crime. Put a little differently, the judge has to decide if the allegations match the crime charged. Defendants and their counsel are not entitled to discovery until after the prelim; hence, we don’t get to see evidence until the case makes its way to the trial court. At the preliminary hearing, judges generally won’t let you get into issues of credibility or suppression, and most cases are bound over for trial.

Despite the low threshold and the tight constraints on what can be asked, the prelim is my chance to gather information on the case and begin setting the stage for suppression and trial. While I can’t get into issues of credibility or suppression, I can lay the groundwork to be able to challenge these things going forward. There have been many times where I got testimony about the incident that I was then able to use in a suppression motion. I also tape record all preliminary hearings and have them transcribed. That transcript becomes important at trial, because if any testimony changes from the prelim I can use it to challenge the witness’s credibility. You can still file suppression motions and challenge credibility even if you choose to waive your prelim. However, you are limited in your information and may not be able to make as thorough or strong an argument.

As an example, let’s look at a typical DUI case. Before the prelim, we receive a Criminal Complaint and an Affidavit of Probable Cause which gives a brief summary of why the person was arrested. Most officers administer Standardized Field Sobriety Tests (SFSTs) and the defendant’s performance forms the basis for probable cause to arrest. What the affidavit often doesn’t include is details about how the defendant performed on the SFSTs. At the prelim, I can question the officer on what clues he or she saw on the SFSTs. If they don’t see enough clues, I can use that as a reason to challenge the arrest. Without asking these questions at a prelim, I may not have the information I need to adequately challenge the probable cause to arrest, and my chances of winning on a suppression motion are seriously diminished.

Simply put, information gathered at a prelim could ultimately help you win your case. You’re going to run into resistance, both from judges and District Attorneys who believe that you should waive simply because the case will be bound over for trial anyway. Don’t let this deter you. Defendants have a right to a prelim. Absent something requiring you to waive (ARD, plea deal, etc.), exercise this right! It could mean the difference between winning your case and spending time in prison.


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