§ 8.4 Preliminary Hearing

LibraryCriminal Law in Oregon (OSBar) (2022 Ed.)

§ 8.4 PRELIMINARY HEARING

Prosecutors most commonly choose to use grand juries and indictments to commence a prosecution, not the preliminary hearing process. If a case has been taken to a grand jury, a defendant has no absolute right to a preliminary hearing. The Oregon appellate courts have consistently ruled that the lack of a preliminary hearing in a magistrate's court does not deprive a circuit court of jurisdiction to try an indictment returned against the defendant by the grand jury. State v. Phelps, 8 Or App 198, 201, 493 P2d 1059 (1972); State v. Walley, 1 Or App 189, 191, 460 P2d 370 (1969); Haynes v. Gladden, 245 Or 487, 489, 422 P2d 679 (1967); State v. Sanford, 245 Or 397, 405, 421 P2d 988 (1966); Anderson v. Gladden, 234 Or 614, 627, 383 P2d 986 (1963), cert den, 375 US 975 (1964); Anderson ex rel. Poe v. Gladden, 205 Or 538, 547, 288 P2d 823 (1955), cert den, 350 US 974 (1956); State v. Wakefield, 111 Or 615, 633, 228 P 115 (1924). Preliminary hearings, however, are still used on occasion as a method of commencing a felony prosecution.

The minimum legal requirements controlling the substance of the preliminary hearing specify that the prosecution must convince the magistrate that there is probable cause that a crime has been committed and probable cause that the defendant committed it. ORS 135.175. The magistrate can make a written order "holding the defendant for further proceedings on the charge" only if there is sufficient evidence to demonstrate probable cause on both of these grounds. ORS 135.185.

The preliminary hearing need not be conducted by a lawyer-magistrate. State v. Pfeiffer, 25 Or App 45, 48-49, 548 P2d 174 (1976). Before conducting the preliminary hearing, however, and during the course of the hearing, a number of procedural steps are mandated by statute. See § 8.4-1 (district attorney's decision to prosecute), § 8.4-2(a) to § 8.4-2(g) (conduct of the hearing).

§ 8.4-1 District Attorney's Decision to Prosecute

A prosecutor generally has great laditude and charging discretion, but it is not unbounded. For example, a prosecutor's charging decisions, including whether to proceed by grand jury indictment or preliminary hearing, must have "a rational explanation for the differential treatment that is reasonably related to [the prosecutor's] official task or to the person's individual situation." State v. Savastano, 354 Or 64, 96, 309 P3d 1083 (2013) (holding that Article I, section 20, of the Oregon Constitution applies to a prosecutor's charging decisions, but overruling the more rigorous standard announced in State v. Freeland, 295 Or 367, 667 P2d 509 (1983)).

More obvious, perhaps, a prosecutor has a duty to bring only charges that are supported by probable cause and to disclose evidence that mitigates the degree of offense. State v. Woodson, 315 Or 314, 318 n 7, 845 P2d 203 (1993); Oregon RPC 3.8. Probable cause means that "there is a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it." ORS 131.005(11).

Similarly, a prosecutor may not act vindictively or prejudicially:

"Vindictive prosecution," which is rooted in the Due Process Clause, is premised on the notion that "[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort[.]" Thus, a criminal charge is subject to dismissal if the state brought the charge in retaliation against a person "for exercising a protected statutory or constitutional right."

"Selective prosecution" has a different constitutional source but reflects a similar value. Drawing from Equal Protection Clause standards, selective prosecution arises where a defendant
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