Felony Preliminary Hearings in Colorado
| Publication year | 1988 |
| Pages | 1085 |
1988, June, Pg. 1085. Felony Preliminary Hearings in Colorado
Colorado law provides for a hearing shortly after felony charges are filed in order to test the validity of the accusations. Preliminary hearings are governed by Crim.P. 5 (in county court) and Crim.P. 7 (in district court), as well as CRS § 16-5-301. They are also mandated by constitutional principles,(fn1) and have been held to be a "critical stage" of the criminal process at which the right to counsel attaches.(fn2) This article discusses the purposes for and procedures followed at preliminary hearings.
Individuals charged with felonies are entitled to a preliminary hearing if the case is filed by information in county court, or if the charge is filed directly in district court.(fn3) There is no right to a preliminary hearing upon indictment(fn4) nor after a juvenile transfer hearing.(fn5) A person is only entitled to a preliminary hearing upon a charged offense, not upon a sentence enhancement provision.(fn6) Current statutes provide that a preliminary hearing may be had even if the defendant is incompetent, but this provision is of questionable constitutionality.(fn7)
Both Crim.P. 5 and 7 provide that a preliminary hearing can be had only upon written demand of either party.(fn8) This request is timely if it is made within ten days of the presentation of charges. The failure to request the hearing within the ten-day period operates as a waiver of the preliminary hearing. The hearing may also be waived by a knowing failure to appear at the hearing.(fn9)
Upon demand, the hearing must be held within thirty days of the setting absent a finding of good cause.(fn10) The sanction for violation of the thirty-day rule is dismissal with prejudice.(fn11)
The stated purpose of the preliminary hearing is to establish probable cause to believe that a crime was committed and that it was committed by the defendant. The standard for probable cause
requires evidence sufficient to induce a person of ordinary prudence and caution conscientiously to entertain a reasonable belief that the defendant may have committed the crimes charged.(fn12)
In assessing the evidence presented, the court is to view the evidence in the light most favorable to the People, since the preliminary hearing is a screening device, not a trial. All conflicts in testimony must be resolved in their favor as well. A witness' testimony may only be discounted when the court finds the witness to be incredible as a matter of law. Affirmative defenses are not pertinent to the probable cause determination. For this reason, the defense rarely presents evidence at the hearing, and the defendant rarely testifies.(fn13)
These recitations hide the real purpose of the preliminary hearing in modern practice: plea bargaining. Short of the trial itself, the preliminary hearing is the only setting attended by the defendant, defense counsel, prosecutor, detective, victim and witnesses. As such, it mandates the appearance of all the participants in the plea-bargaining process. Perhaps two-thirds of all felonies are resolved at this time.
The courts have often stated that discovery is not a purpose of the preliminary hearing,(fn14) but it is often the purpose of the defense attorney. While current discovery rules make almost all discoverable material available prior to the preliminary hearing,(fn15) ordinarily there are unanswered questions from the viewpoint of defense counsel. The typical preliminary hearing is a sparring...
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