Saturday, June 25, 2011


Step 4: The Preliminary Hearing (or Grand Jury Indictment)

At this point in the proceedings the defendant’s case is still in magistrate court, and a magistrate judge still presides over the case. Before the case can be “bound over” to district court, there needs to be a finding by either a magistrate judge or a grand jury, that there is substantial evidence that a crime was committed, and that the defendant is the one who committed the crime. Some defendants look at these hearings as a kind of mini-trial, but they are quite different from a trial. The standard of proof is much lower, the prosecutor will not need to prove their case beyond a reasonable doubt, like they would for a jury trial. A grand jury proceeding does not even have a defendant or his attorney present for the proceedings (these are what attorneys call “ex parte” hearings). Consequently, you will not have an opportunity to cross examine the witnesses that testify before the Grand Jury, nor will you have an opportunity to call your own witnesses. On the other hand, at a preliminary hearing you will have the opportunity to cross examine the witnesses, and to call your own witnesses. If a grand jury or a judge determines that there is substantial evidence to move forward, then the case will “bound over” to district court.

There doesn’t necessarily have to be a hearing to get the case bound over to district court. Often the prosecutor will attempt a resolution of the case at the preliminary hearing stage. If the Defendant wants to take advantage of the offer, then the defendant will be required to “waive” the preliminary hearing. What this means is the Defendant agrees that he wants to take advantage of the State’s offer, and is willing to relieve them of their duty to present their evidence to the magistrate judge. Sometimes it is a good idea to waive your preliminary hearing, and sometimes it is not. This will be a strategic decision. Sometimes it is a good call to get the witnesses statement on the record. Other times it is not. Sometimes there is nothing to lose, sometimes there is everything to lose. This will be a decision that you will have to make with the advice of your attorney

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