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THE DARK SIDE: Preliminary hearings serve a valuable purpose

In my long career, only once have I had a case dismissed because after a preliminary hearing the commissioner decided that there was no probable cause to proceed.

In contrast, the following three scenarios happen all the time: (1) my client waived the hearing; (2) we insisted on a hearing but the witnesses didn’t show up, so the case was dismissed; and (3) the witnesses showed up, a hearing was held and probable cause was found.

The system works quite well, in my opinion, with one caveat I’ll get to later.

Nevertheless, a bunch of nimrods have gotten together to do one of two things: either eliminate the preliminary hearing altogether or allow hearsay at preliminary hearings.

I’m an old man, and I’ve heard a lot of ridiculous proposals in my life, but this takes the cake.

As stated above, it’s rare the state can’t meet the probable cause standard required at the hearing if all the witnesses show up. But it does happen. I think it should be self-evident that, if the state can’t meet its burden to show probable cause at a preliminary hearing, it is best for everyone involved that the case be dismissed at that time, rather than going to trial and having the State lose after significant expense on everyone’s part.

It is also self-evident that, if the witnesses won’t show up for the preliminary hearing, they are not going to show up for trial months later. Needless to say, it is best for everyone involved that the case be dismissed within 20 days of arrest, rather than months or years later.

The most common scenario is the waiver. In this case, the state must subpoena and produce witnesses for a hearing that never takes place. I acknowledge this is a burden on the state that appears a waste of resources on its face.

But it actually serves a valuable purpose, and one that saves the state resources. If sends a message to the defendant that the witnesses are willing to show up and testify.

If that induces a deal and saves the state the trouble of preparing for trial and proving the defendant guilty beyond a reasonable doubt, that’s a big savings for the state. It’s not a waste of resources, as the proponents of reform suggest.

In an alternate scenario, a hearing is held and probable cause is found.

Proponents of getting rid of preliminary hearings consider this an abomination.

They think it’s horrible that crime victims should have to testify at preliminary hearings. But the fact is the right of confrontation is an essential part of our adversarial justice system. To convict someone of a crime, sometimes someone has to testify.

If people really want to reform the laws governing preliminary hearings, here’s all that is required: pass a statute making preliminary hearing testimony inadmissible at trial.

Such testimony is admissible, but only if the defendant had the opportunity to meaningfully cross-examine the witness. At a preliminary hearing, though, the defense is supposed to be only allowed to question the plausibility of testimony, not its credibility.

Failure on the defense attorney’s part to question the witness’ credibility will result in the testimony being admissible at trial, if the witness fails to appear.

As a result, the preliminary hearing is a charade. The defense attorney is obligated to ask questions outside of the scope of the hearing, the prosecutor is obligated to object and the commissioner is obligated to grant the objection.

If people really want to improve how preliminary hearings are held, they should support an ironclad rule that preliminary hearing testimony is inadmissible at trial, unless the defendant caused the witness’ nonappearance.

Such a rule would end the charade that preliminary hearings currently are, while preserving an important procedural step in the criminal justice system.

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