Q – What is a preliminary hearing?
A – It is simply a test of the legal sufficiency of the government’s case against the accused.
Q – When am I ENTITLED to a preliminary hearing?
A – Only in a felony or gross-misdemeanor prosecution
Q – Is a preliminary hearing in front of a judge or a jury?
A – Only in front of the judge
Q – How much longer after arraignment do preliminary hearings take place?
A – Usually they are set within 15 days, but the judge frequently grants continuances to either side for good-cause.
Q – What would be good-cause to continue a preliminary hearing?
A – To locate witnesses and gather other evidence
Q – Why would we ever WAIVE this hearing?
A – If the evidence against you was very strong and/or the alleged victim was present, or if we were very close to a favorable plea agreement and did not want to agitate the alleged victim
Q – What is the applicable standard of proof in a preliminary hearing, and who has the burden of proof?
A – It is the government’s burden to show at least “slight or marginal evidence” that a crime was committed, and that the defendant is the one who committed it. See Sheriff v. Milton 109 Nev. 412, 851 P.2d 417,418 (1993) and Sheriff v. Hodes, 96 Nev. 184, 606 P.2d 178, 180 (1980)
Q – What happens if the government wins? What happens if we win?
A – If the government wins, the case is “bound over” or sent to the next-higher court i.e. District Court (with a new judge and new prosecutor) for a new arraignment on a later date. If the defendant wins, the case is over unless the DA’s office convinces a grand jury to indict you later.
Q – Can things discovered or discussed in a preliminary hearing be used against me, or against the government’s witnesses later?
A – Absolutely – preliminary hearings involve sworn testimony. Any prior inconsistent statement is useful for purposes of impeachment later i.e. at trial. We will offer a much broader description of impeachment processes in the TRIAL segment of this series.
Q – Am I allowed to – and can I be forced to testify at a preliminary hearing?
A – You are allowed to – but can never be FORCED to testify at a preliminary hearing, and anything you say can and will be used against you later. You can easily incriminate yourself – and we will discuss all of this with you. Most of the time, it is NOT worthwhile to testify since the government’s burden of proof is so low. You may end up giving the state a free preview of your trial defense – and the alleged victim would then also have a chance to change their story to refute yours.
FURTHER STRATEGIC CONSIDERATIONS:
At the preliminary hearing stage, the judge is likely to view the evidence in the light MOST FAVORABLE to the state (even though it is not written down anywhere). We know this from experience, also – as a general proposition, a judge will almost never dismiss a case when there are differing versions as to THE FACTS, a judge will most often only dismiss a case if there is a problem with THE LAW. Our system is designed to decide disputes on THE MERITS of each case, i.e. individual fact determinations, made by factfinders (jurors) not by judges.
Q – Is Cross-Examination allowed in preliminary hearings?
A – Yes, anyone who testifies can be cross-examined, including you. However, from the standpoint of strategy-it will not ALWAYS be best to cross-examine EVERY witness at this stage in EVERY case. Sometimes we cross-examine only as to CERTAIN ASPECTS of testimony in the preliminary stage. These two sample questions provide an example of ones that may be useful to ask during a preliminary hearing cross-examination of an alleged victim that we believe is lying, and likely to lie again later:
# 1 – “Is everything you testified to complete and accurate?”
# 2 – “Is your memory of what happened on the date of the alleged battery more-fresh now than it was then?” These questions allow or even force the alleged victim to commit to a version of events (that we probably know is false), knowing full-well that we can dispute it more-fully later if the witness tries to change their testimony at a jury trial. Sometimes it is best not to cross-examine someone fully at the preliminary hearing so as to deny them the opportunity to try to explain something away – and make up another lie to cover the first one.
Q – Can you provide an example of how what you say about cross-examination was applied in an actual case?
A – Yes I can – but this example was from a felony jury trial –
In 2010 I was representing a man who was accused of violating an injunction, stalking and attempted aggravated battery with a deadly weapon by allegedly trying to “run the alleged victim off the road” with his car. The alleged victim had earlier been granted permission by the local police to record my client on the phone – as part of a separate investigation into yet another crime, and there were MANY HOURS of recorded conversations that became relevant evidence of my client’s “course of conduct” as alleged by the prosecution in conjunction with their stalking case. Buried deep within the many recordings we received – the alleged victim could be heard saying that she “liked it” when my client called her – liked hearing his voice etc. This was a big deal – since one of the elements of the charge of stalking (a felony) was that the contact between the alleged victim and the defendant was unwanted and/or done for no legitimate purposes, only done to harass etc.
Therefore, we knew going into the trial the stalking charge was likely to fail. During cross-examination of the alleged victim, (which is AFTER the prosecutor did his examination) but before playing the aforementioned recording for the jury – we asked the alleged victim these questions:
“Earlier you testified that you never WANTED to be contacted by my client, right?”
“You never INVITED him to contact you?”
We already knew her response(s) would be along the lines of:
“Of course not, he scares me – and he sickens me”
My client and I also had a strong suspicion the prosecutor and this victim had not been nearly as diligent as my client and I – they had simply OVERLOOKED these parts of the recordings, which the prosecutor gave to us in discovery. This is yet another example of how we win by being more diligent than our adversaries. It is also an example of how someone telling lies usually cannot lie perfectly.
After the jury heard the alleged victim contradicted so obviously on that recording – her credibility was destroyed – and made it easier for me to argue that the jury – knowing she lied about one thing – could not believe her about any of the other things she said. The verdict was NOT GUILTY on the felonies.
Q- Is Hearsay admissible in preliminary hearings on domestic violence cases?
A- Rarely – and not in any MISDEMEANOR domestic violence cases – but there is an exception – as to FELONY domestic violence cases, but only those felony DV cases that became felonies based upon the severity of injuries to the alleged victim. This hearsay exception DOES NOT apply on felony cases that became felonies based upon the defendant having prior convictions.
Q – What is the hearsay exception on felony DV cases based upon severity of injury?
A – Excited utterances (discussed in earlier chapters) are statements made purportedly while the declarant (absent witness) was under the stress or excitement of some traumatizing event (alleged battery). An example of this would be a recorded 911 call that the prosecutor would play for the judge in court -if they could not produce/serve a subpoena on the alleged victim – “Oh my God, my boyfriend, John Smith- he just punched me in the head – send police quick! ” Keep in mind – that if the state has an alleged victim present who will testify, there is usually no need to play 911 recordings.