Preliminary hearings can give the defense a leg up

There is nothing pro-forma or perfunctory about preliminary hearings in criminal defense cases.

A preliminary hearing puts flesh and muscle on the bare bones of a case. Until the state presents its case and offers up its witnesses before a district judge at a preliminary hearing, the case exists only on paper, in various tersely worded legal documents.

In focusing my practice at Scaringi Law on criminal law, family law and civil litigation, I've attended scores of preliminary hearings, and I always come away with new insights into a case. Simply put, there is all upside and little downside for the defense at a preliminary hearing.

So why don't they get the respect they deserve in criminal defense work?

An overlooked opportunity

In my view, preliminary hearings are anything but a waste of time. Yet some busy lawyers see them this way. However, I believe these harried attorneys are unwisely overlooking huge opportunities to seize sizable advantages for their clients.

True, criminal cases are rarely dismissed at the preliminary hearing stage. The threshold for the district justice to bind over the charges for trial is very low. This may be the reason some misconstrue the proceedings as a useless rubber stamp.

But they are missing the bigger picture: This is the first full chance to see the prosecution's cards in a criminal case. In questioning witnesses and investigating officers, I get a dry run at testing their demeanors and witness-stand presence well before trial, should the case go that far.

Often, the preliminary hearing also marks the beginning of a negotiation between the defense and prosecution toward settling the case. The more holes in the prosecution case that become all too apparent at the preliminary hearing, the more favorable the terms to the defense of any plea bargain. But your criminal defense attorney must be actively looking for these openings by fully preparing for and engaging in the preliminary hearing, rather than treating it as a mere formality.

This is why I rarely waive a client's right to a preliminary hearing. It is just too valuable an opportunity.

A sneak preview of the prosecution

Sure, I have hit home runs at preliminary hearings. Recently, I persuaded a prosecutor to withdraw criminal attempt homicide charges against a client because the holes in the case became readily apparent as we approached the preliminary hearing. Still, seeing the charges go away at this early stage remains the exception, not the rule.

Don't feel we have failed simply because the charges are bound over after a preliminary hearing. The defense is almost always in a better position following a preliminary hearing. Why? It is an unmatched opportunity to get a sneak preview of the prosecution's case. We see many of the players in person. They are put under oath, and I can question them on the stand.

For the defense, there is everything to gain at the preliminary hearing. The accused should never testify. The burden of the preliminary hearing falls on the prosecution alone.

At one preliminary hearing, I sensed that a victim was deeply torn by the prosecution of a client. There was an underlying relationship there that shined through on the stand. Immediately, I knew this would prove a major prosecution weakness. In the end, my sixth sense about the witness provided an opening for a deal that proved very favorable to my client.

Leave the trials to TV shows, legal thrillers and the movies, thank you. Preliminary hearings are where all good defense work really begins.

A public misunderstanding

Officially, the purpose of a preliminary hearing is to determine whether the specific crime charged may have been committed and whether the person charged may have committed it. It is a low legal threshold, and on the vast majority of occasions, the case is held over for court.

All of this has little or nothing to do with actual guilt or innocence. The press and the public often fail to see it this way, mistaking charges being bound over at a preliminary hearing as showing guilt. Far from an ending, however, the preliminary hearing marks only the beginning of the defense's many legal moves.

Preliminary hearings are also often the last best opportunity to argue bail amounts and secure my clients' release from jail, should this situation exist. In most cases, I push to have the preliminary hearing as soon as possible in order to get bail and/or the charges reduced.

Sometimes, clients who face an ironclad criminal case can benefit from their time served in county jail while awaiting their preliminary hearings and, later, their trials or sentencing in a plea agreement. This time served reduces the length of any prison sentence after conviction.

The vast majority of the time, however, the defense is out to lessen bail and, if possible, reduce the charges - all of it occurring at a timely preliminary hearing.

Reputations on the line

Simply put, preliminary hearings mark the first detailed public airings of the prosecution's case. If the case just doesn't add up at a preliminary hearing, the prosecutor and police risk appearing biased and unfair unless they make allowances with lower bail and possible reductions in the charges being pressed.

Good criminal defense is about preparation and experience. My preparation begins as soon as I take your case and many times pays off at the preliminary hearing, where I do anything but go through the motions.

Instead, this is where I go to bat for my clients, taking the first important step toward the most favorable outcome to your criminal case.

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