Preliminary Hearings-and What's Wrong With Them
| Publication year | 1978 |
| Pages | 1926 |
1978, November, Pg. 1926. Preliminary Hearings-And What's Wrong With Them
When no one is the least bit happy with a long-established institution, it is a wonder how it survives. However, the preliminary hearing, like a citadel beseiged, has survived---perhaps in part because one always defends citadels, but primarily because, even with faults, there is a basic need for a hearing at an early stage of criminal proceedings to protect defendant and society alike. A common complaint is that time, money and justice are being squandered in a straight-jacketed format.
The initial premise is that a preliminary hearing is used to determine if there is probable cause to believe that an offense has been committed and that the person charged committed that offense.(fn1) The question then is posed: How intensive is the inquiry?
C.R.S. 1973, § 16-5-301, provides for preliminary hearings in all felony or Class 1 misdemeanor cases and Rules 5 and 7, Crim. P. set out procedural matters. In addition, case law has developed some ground rules beyond serious argument.
Depending upon the criminal filing procedures of the particular judicial district in Colorado, a preliminary hearing may be heard either in the county or district courts---or, in some instances, both. Request must be in writing and filed within ten days of the first court appearance. The hearing must occur not later than thirty days from time of setting, unless extended by the court for good cause. Either prosecution or defense may make the request.
Rule 5, Crim. P., covers procedures in the event that the case is initiated in county court through the filing of a felony or Class 1 misdemeanor complaint.
If the county judge finds probable cause, the defendant is bound over for trial and, in the case of a felony complaint, return is made in district court. All county court records are transferred.
If the county judge does not find probable cause, the complaint is dismissed and the defendant discharged, subject, however, to the right of the district attorney to refile the case in district court by virtue of a direct information. In that event the defendant may again request a preliminary hearing.
An important caveat is that, while a preliminary hearing is a critical stage in the administration of justice,(fn2) it is not a mandatory step in every criminal prosecution. It may, therefore, be waived(fn3)
As an example, a defendant could fail to file for hearing within the ten-day period under Rule 5 and this would be deemed a waiver, extending even into district court when later, perhaps, a request for preliminary hearing is made following bind-over, under Rule 7(h). The Colorado Supreme Court has ruled that the district court has no jurisdiction to entertain a motion for the hearing.(fn6)
Rule 7, Crim. P., covers the procedure in the event that an information has been filed in the district court
1) as an initial commencement of prosecution;
2) following a preliminary hearing in county court where defendant was discharged and the district attorney elects to persist in prosecuting;
3) following a preliminary hearing in county court where defendant was bound over for trial in district court;
4) following a bind-over from county court where defendant failed to request a hearing;
5) in the event county court records have not been delivered to the district court.
The rule distinguishes between informations which may be filed with and without permission of the trial court.
At a preliminary hearing, the defendant has the right to be represented by counsel and must himself be present, unless his appearance is excused by application to the court.(fn7)
Under either rule and in either court, after a finding of probable cause, the only course is arraignment and trial; there is no provision for rehearing or reconsideration.(fn8) A defendant cannot appeal an adverse ruling; the remedy is an original proceeding which...
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