Section 6.8 Preliminary Hearing as a Discovery Tool: Pretrial Discovery

• Library: Criminal Practice 2012 Supp

III. (§6.8) Preliminary Hearing as a Discovery Tool: Pretrial Discovery

While the sole legal purpose of a preliminary hearing is the judicial determination of probable cause to hold the defendant over for trial as to a felony offense, it also presents the defendant with an easy and inexpensive form of discovery. The preliminary hearing judge and defense counsel both learn the strength and nature of the case against the accused at this hearing. In most jurisdictions, the hearing is conducted in much the same manner as a trial, and the basic rules of evidence are followed “as far as practicable.” See § 544.280, RSMo 2000. What is “practicable” will vary from one jurisdiction to another, based on local practice, and over time. It should be noted that § 595.209.1(1), RSMo Supp. 2004, allows for victims of certain crimes “to be present at all criminal justice proceedings” (including preliminary hearing) “even if the victim is called to testify . . . as a witness in the case.” Therefore, a court may refuse to exclude these witnesses at a preliminary hearing, the court being the fact-finder on the issue of probable cause and there being no jury present or due process issues related to the truth-finding process of a jury trial. See §6.16, infra.

Some jurisdictions allow wide latitude during preliminary hearings and an almost unlimited opportunity for defense counsel to elicit testimony during cross-examination. Counsel should go as far as possible, and if the prosecuting attorney does not object, the judge usually will not limit counsel’s inquiry.

Unless counsel strongly believes there is a substantial likelihood that the merits of a hearing will result in a discharge of the defendant, defense counsel’s strategy should be geared toward discovering as much of the state’s case as possible. To this end, technical objections to evidence are not advisable. In most jurisdictions, hearsay and other technical rules of evidence are minimally applied by the court; objections, therefore, may be impractical.

When only hearsay evidence is proffered at the preliminary hearing by the state—e.g., when a Children’s Division worker testifies by recital from a report about what the child victim has told the worker and other interviewers—defense counsel should object on due process grounds. Counsel should refer to § 544.280, which requires the court to follow basic rules of evidence, including the barring of hearsay as the sole evidence before the court, and submit that to do...