Section 6.7 Conduct of Hearing

• Library: Criminal Practice 2012 Supp

C. (§6.7) Conduct of Hearing

The basic procedure for a preliminary hearing is that the defendant is present with counsel and the prosecuting attorney is present and calls witnesses to the stand. Those witnesses are sworn by oath or affirmation and will testify in open court subject to cross-examination by defense counsel. Defendants are also afforded the opportunity to present witnesses on their own behalf, and subject to the discretion of the court, counsel can argue their case after the evidence is submitted. This basic procedure differs greatly from that of a case presented to the grand jury by the prosecuting attorney for an indictment. Before the grand jury, neither the accused nor the attorney for the accused is present when witnesses for the prosecution appear and give testimony. Witnesses are not subject to cross-examination by defense counsel, there is no judge presiding (except the presiding judge of the circuit court, or their designee, and then only to convene, recess, and adjourn the grand jury, see § 540.021.5, RSMo Supp. 2004), and there is usually no opportunity for the defendant to present evidence. When grand juries are an available alternative, the prosecuting attorney decides which cases to present to the grand jury and which are to proceed to preliminary hearing. The typical cases presented to the grand jury are:

· political investigations;

· undercover drug cases;

· rape and other sex offenses;

· child molestations;

· homicide cases; and

· other complicated cases involving numerous witnesses and the need for documentary evidence.

There is no requirement that the grand jury proceedings be recorded in any manner, and typically they are not unless the defendant or defense witnesses are called to testify. While not the subject matter of this chapter, whether the defendant or witnesses on behalf of the defendant should testify at the grand jury will be a matter of defense strategy and may or may not be beneficial depending on the circumstances.

The defendant has no right to a preliminary hearing, and when a prosecuting attorney elects to dismiss a complaint or information and proceed on an indictment, there is no dual prosecution and the defendant has no right to insist that a complaint and following information be filed to the exclusion of the indictment. If a prosecuting attorney exercises this discretion in charging by way of indictment rather than complaint and information, a subsequent trial on that indictment is not improper. State...