Chapter 10 The Preliminary Hearing

• Jurisdiction: United States

Chapter 10 The Preliminary Hearing

Held to Answer

A preliminary hearing (also known as a preliminary examination or evidentiary hearing) is a hearing held in an open court before a judge to determine if the person being charged with a felony should be tried for the crime and whether there is enough evidence to proceed with trial. If, after hearing the preliminary hearing evidence, a court feels there is probable cause that a crime was committed, and the defendant before the court is the one who committed that crime, the court will hold to answer the defendant. Cal. Penal Code §872.

By holding to answer a defendant after a preliminary hearing, the judge feels the case is worth going forth to a jury trial to determine the guilt of a defendant. The court will determine the custody status of the defendant and decide whether to set bail pending trial. If the defendant is held to answer, the prosecution must file an information with the trial court within fifteen calendar days of the holding order. The information gives the trial court jurisdiction to handle the case. In smaller counties the court that heard the preliminary hearing may also be the court that conducts the trial. In larger counties a different court may conduct the trial.

Prop 115 Testimony

In 1990, proposition 115 amended the California Constitution to remove a defendant's Sixth Amendment right to cross-examine and confront witnesses in a preliminary hearing. Cal. Penal Code §872 and Cal. Evidence Code §1203.1 codified Prop. 115, permitting one level of hearsay at a preliminary hearing. Cal. Penal Code §872 states: "[T]he finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer, . . . relating statements of declarants made out of court offered for the truth of the matter asserted."

This means an officer can testify to a witness' statement. The officer must have over five years' experience or be POST certified (the officer has completed a Peace Officer Standards and Training course on the testimony of witnesses). An officer can testify to multiple levels of hearsay so long as each level has an exception. However, an officer cannot merely be a "reader" of someone else's report. The officer must have some personal knowledge of the matter about which the officer testifies.

17(b) Motion

After hearing the evidence at a...