When the charges made against the accused amounts to a felony offense, then it is mandatory that the court with jurisdiction over the case conduct a preliminary hearing. This is also called a probably cause hearing and is done to determine if there is sufficient evidence present to prove a crime has been committed and that crime is a felony offense.

At the preliminary hearing, the prosecution presents evidence and witnesses to show the judge that a crime was committed and that there is probable cause to charge the accused. This evidence is subject to cross-examination by the defense and this is done after a plea of not guilty. This step may even be waived by the accused and the whole process goes into trial proper.

At the preliminary hearing, the judge with jurisdiction over the case reviews all the arguments and evidence presented. With what has been presented, the judge needs to be able to answer the following questions:

a) With the evidence presented, is there probable cause to lead a reasonable man to a belief that a crime was committed;
b) When the crime was committed, is there a probable cause to lead a reasonable man to the conclusion that the accused committed the crime;

There are two main burdens of proof that the prosecution needs to prove before the judge. The required proof in a probable cause hearing is well below the beyond reasonable doubt requirement in criminal convictions. Probable cause is defined under California law as the state of facts that would lean a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the accused is guilty of the crime.

To be able to get the case into trial proper, the prosecution must be able to present probable cause for each element of the crime charged. The prosecution should also establish probable cause for the accused’s prior convictions, sentencing enhancements as well as special circumstance allegations in these previous crimes.

When the judge finds probable cause, the court would require the accused to respond to the charges leveled. The case is then scheduled for pretrial in the next fifteen (15) days. When probably cause is not established, then the court can decide either to dismiss the case or dismiss the specific charge that has been unproven.

The accused, despite undergoing preliminary hearing, retains their Constitutional rights, which are as follows:

1) The right to a lawyer of their choice or if unable to afford one, a lawyer would be provided them free of charge;
2) The right to attend the preliminary hearing but this right can be withdrawn when the judge deems it fit, especially when the accused is disruptive of the proceedings. When this right is withdrawn, the case would proceed despite the absence of the accused;
3) The right to cross-examine evidence or the so-called corpus delicti rule and present other evidence aside from out of court admissions;
4) The right to confront and cross examine prosecution witnesses;
5) The right to present defense witnesses to establish affirmative defenses, negate an element of a crime or impeach the credibility or testimony of witnesses;
6) The right to be free from physical restraint unless there is a specific need to maintain safety of all the parties concerned;
7) The right of discovery of all relevant evidence to establish guilt or innocence of the accused;

The preliminary hearing process is a serious legal activity in California. Should you be or know anyone undergoing this process, do reach out to the lawyers at the Law Offices of Ramiro J. Lluis for a free consultation today.