If you are charged with a felony, then you have a right to a preliminary hearing. The following are ten hot tips to help you understand what that hearing is, but your attorney should be the first person you go to with any questions.
Remember, the right attorney makes all the difference because knowledge is POWER!

• In all California felony cases, there are four important court dates. The first court date, which is called the arraignment, the second court date, which is the preliminary hearing, the third court date for filing of the Information, which sets forth the charges based on the evidence taken at the preliminary hearing, and then the fourth court date, which is the trial. Those are the four most important, but there are often many other appearances in between them.

• What is the California Preliminary Hearing? Your right to one begins when the district attorney files a Complaint on or before your first court date. The Complaint list the charges the district attorney believes are supported by the police report. At the preliminary hearing, the district attorney must present enough evidence to convince the judge that there is probable cause to support those charges. This is a very low burden of proof. It is far easier than satisfying the burden of evidence imposed on the district attorney at trial, which is beyond a reasonable doubt; the very highest burden of proof in the law. In contrast, the burden of proof at the Preliminary Hearing is one of the lowest there is in law. Evidence will consist of the testimony of the alleged victim, if any, witnesses, and then any real evidence, such as toxicology results. Real evidence may also consist of showing the judge the actual knife used in a stabbing or the gun used in a shooting.

• The judge may find enough evidence to support all the charges in the Complaint. The judge may also dismiss some of the charges for lack of sufficient evidence. The judge may also reduce any or all of your charges from felonies to misdemeanors. However, one of the risks at the Preliminary Hearing is that evidence of additional crimes may be presented. If that happens, then the district attorney can add additional charges to the Information, which is filed at the next court date. If your attorney is not asking very many questions at the Preliminary Hearing, there is a good chance the reason is that he or she is concerned about asking a question that will result in additional charges being made.

• If additional charges are filed based on the evidence at the Preliminary Hearing, then there is a good chance that your bail will increase. If that happens, then you will be remanded into custody at the third court date and will not be released until you pay the additional bail. Harsh! However, if charges are dismissed or reduced to misdemeanors, then there is a good chance that your bail will be decreased. That sounds a lot better!

• Despite the risk of additional charges, there are some great advantages to having a Preliminary Hearing. One of those is that it is an opportunity to make a record of the testimony. So if the alleged victim is testifying at the hearing, then every word that person says will be recorded. The same is true for every other witness who testifies. After the hearing, a transcript of the testimony will be provided to the defendant free of charge. Your attorney will review every word said by all the witness and keep their testimony in mind if you case goes to trial. If a witness says anything different at trial then they did at the Preliminary Hearing, it can be used against them to show they are not credible. We have won cases based on witnesses saying one thing at the Preliminary Hearing and something different at trial. This is why it is so difficult to successfully lie on the stand.

• Another great advantage of the Preliminary Hearing is that the defendant can challenge the lawfulness of how any evidence was seized or any search was made. To do this though, your attorney must file notice with the court and serve that notice on the district attorney at least five court days before the hearing. For an illustration, assume the defendant was stopped while driving for no reason other than he just looked like a gangster and during the stop cocaine was found. It is illegal for an officer to stop anybody just because they look like a gangster. If your attorney proves at the Preliminary Hearing that the stop was illegal then all the evidence obtain by the officer as a result of the stop should be suppressed, meaning it cannot be used against you. That means that any charges being made as a result of the discovery of cocaine would be dismissed. That would be great! Just in case you were wondering, you do not get your cocaine back.

• One of the many differences between a Preliminary Hearing and a trial is that hearsay is admissible if the person testifying is a peace officer. This means that if you are being charged with domestic violence, for example, then the officer who interviewed the alleged victim can testify as to what the alleged victim, or any other witness for that matter, told him. If that happens, then your accuser won’t event testify at the Preliminary Hearing. This is not the case at trial. At trial, hearsay is NOT admissible, which means that the alleged victim or witness would have to testify.

• As mentioned, at the Preliminary Hearing, the judge may find all the charges in the Complaint are supported by the evidence or may find there are additional charges. If so, then the district attorney will prepare the Information based on the judge’s ruling. The district attorney may even add charges to the Information not even considered at the Preliminary Hearing if it is believed they are supported by the evidence. If your attorney disagrees with either the ruling by the judge or district attorney over what charges in the Information are supported by the evidence, then they can be challenged at a proceeding called a “995 Motion to Strike.” That motion is made after the third court date and is based solely on the record, also known as the transcript, of the Preliminary Hearing. At the 995 hearing the judge will either agree or disagree with your attorney and make a ruling accordingly.

• Once you enter a “not guilty” plea, you have a right to a preliminary hearing within 10 court days and under any circumstance before 60 calendar days from the date you entered your plea of not guilty. This is called your right to a speedy Preliminary Hearing. To calculate court days, you count all the days from the date you entered your “not guilty” plea, except weekends and holidays. Calendar days include weekends and holidays. Often, you will want to defer entering pleas of “not guilty,” meaning you wait to say it until another court date, to give your attorney more time to review all the evidence, which may include toxicology results, viewing physical evidence, reviewing all police report, video evidence, and audio evidence. If your attorney is not given enough time to do this, then he or she may miss something crucial at the Preliminary Hearing. Sometimes, deferring entry of your “not guilty” plea is a difficult choice to make because your bail may be so high that you can’t get out of jail. Making the right choice about whether to assert your right to a speedy Preliminary Hearing is sometimes difficult, but with the right attorney, is should be a little easier.

• You also have a right to waive your Preliminary Hearing. If you do this, then you go right to the third court date where the information is filed. One of the reasons to waive the Preliminary Hearing, and really the only reason, is if there is a good chance that evidence will be presented at the preliminary hearing that will result in additional charges (see Hot Tip #3, above.) If that is the case and your attorney determines that the risk and harm to you if charges are added outweighs the benefits to proceeding with the Preliminary Hearing, then it is better to waive it.

At Fiumara & Milligan Law, PC, we pride ourselves in providing the very best representation and legal advice. We are experienced attorneys who know our way around the law. The right attorney makes all the difference, so make sure you call us. Know your rights!
Fiumara & Milligan Law, PC
182 Farmers Lane, Suite 100A
Santa Rosa, CA 95405
707-571-8600
Or call us at our Marin County Office
4040 Civic Center Drive, Suite 200
San Rafael, CA 94903
415-492-4507