PRELIMINARY HEARING

The prosecution begins a felony case by filing a grand jury indictment or by filing a complaint with a magistrate. If a complaint is filed, a preliminary hearing must be held before a magistrate to ensure there is sufficient evidence to hold a defendant to answer for the charges against him in the trial court. When an indictment is filed, there is no right to a preliminary hearing. At the preliminary hearing, the prosecution must present sufficient evidence to convince the magistrate that probable cause exists to believe that a crime has been committed by the defendant. If the prosecution makes this showing, the magistrate will hold the defendant to answer to the charge in the trial court. The prosecution must then file an information in that court within 15 days. Once the magistrate makes a holding order, the magistrate’s power ceases and jurisdiction vests in the trial court to deal with the charges in the case. Because the vast majority of felony cases settle before trial, the preliminary hearing may be the sole proceeding at which evidence is taken. The preliminary hearing gives the defense a key opportunity to show the prosecutor why a particular settlement is justified, and to show the magistrate why the case should be discharged or reduced. It also provides one of the few opportunities to reduce a wobbler and to eliminate enhancements. The defense may cross-examine witnesses for purposes of raising an affirmative defense, negating an element of the offense, or impeaching a witness. If the defendant does not have an adequate opportunity to cross-examine the witness, the preliminary examination testimony may not be admissible. The defense may also bring a motion to suppress at a preliminary hearing, provided there is sufficient notice. The defense may also request that the magistrate make factual findings which may result in the discharge of some or all charges. When the felony charged in the complaint could have been charged as a misdemeanor, he judge may reduce the charge to a misdemeanor.

Source: CEB: California Criminal Law Procedure & Practice