Canyons Criminal Defense Lawyers

Utah Criminal Defense Attorneys

Main Criminal Defense Navigation

  • Canyons Home
  • Defense Strategy
  • How We Can Help
    • Felony Defense
    • Misdemeanors
    • Jury Trials
    • Appeals
    • District Courts
    • Justice Courts
    • 402 Reductions
    • Pardon
    • Expungements
  • Your Defense Team
  • Contact Information

Criminal Defense Firm in Utah

Criminal Defense Attorneys
Serving Clients Statewide

Criminal Defense Law for Mobile Header

  • Criminal Defense
  • Contact Information
Home » Criminal Defense Attorneys Utah » Waiving Preliminary Hearing

Waiving Preliminary Hearing

October 15, 2019 By Stephen Howard

Unless there is some strategic advantage to be gained, it is rarely advisable to waive any constitutional right. In Utah felony criminal cases, the defendant’s right to a preliminary hearing is guaranteed via constitutional due process. Consider carefully the rights being given up before advising a client to waive the right to a preliminary hearing.

Primary Purpose of a Preliminary Hearing

Before discussing whether to waive or not to waive a preliminary hearing right, the purposes and goals involved in conducting a preliminary hearing must be addressed.

Probable Cause Determination

The most fundamental purpose of a preliminary hearing is to require the government to demonstrate that probable cause exists showing 1) that a crime was committed; and 2) that the defendant committed that crime. In this sense, a preliminary hearing is sometimes informally referred to as a “probable cause” hearing.

Discovery

Utah courts have previously acknowledged that a preliminary hearing serves at least a limited discovery function. Whereas in a civil case, the parties are allowed to conduct formal discovery involving depositions, interrogatories, and requests for admissions, Utah’s Rules of Criminal Procedure do not allow the same kinds of discovery by the defense. The prosecution may take as long as needed to guild their case, question witnesses under the authority of law enforcement, conduct tests, consult experts, re-interview witnesses, or engage in other investigative methods. But the defense is much more limited in its ability to compel the disclosure of information.

The preliminary hearing provides a defense attorney the opportunity to ask questions of witnesses called to testify by the government. But because of the lower burden of proof and legal presumptions that the court must draw in favor of the government, many judges will severely restrict the defense attorney’s ability to engage in meaningful cross-examination of government witnesses.

At a preliminary hearing, the defense has a right to call witnesses. In many cases, the prosecution will limit the number of witnesses called at preliminary hearing or attempt to introduce evidence from witness instead in the form of written statements (“1102” statements). A defense attorney should be prepared for a challenge by the government if any of these government witnesses are subpoenaed by the defense.

Because the chief purpose of a preliminary hearing is the determination of probable cause, Utah’s courts have taken increasingly narrow views of what evidence is “relevant” and what witnesses can be called. But even with restrictions on discovery and the lowered burden of proof that applies, a preliminary hearing is still an important procedural right.

Burden of Proof

The burden of proof rests with the government at the preliminary hearing stage. There is no jury; instead, only a judge hears the testimony and evidence. Proof beyond a reasonable doubt is not required; instead, a judge need only find probable cause (some reason to believe) that a crime was committed by the defendant. Further lightening the burden of the government, judges are not permitted to weigh the credibility of the government’s witnesses. Instead, Utah law requires judges to draw reasonable inferences in favor of the government’s case and to resolve inconsistencies in the evidence also in favor of the government.

If the court finds the necessary probable cause, then the case is “bound over” for trial. If the court determines that probable cause does not exist, either that the crime occurred or that the defendant is the one who committed it, the case should be dismissed.

Next Article: Other Purposes

With the odds seemingly stacked against the defense, some attorneys question whether there is any reason to pursue a preliminary hearing. The answer to that question is a very definite “yes.”

Our next article addresses additional purposes of a preliminary hearing, beyond a mere probable cause determination, that can help a defense attorney develop a better case for trial or establish a stronger position for negotiations.

Filed Under: Criminal Defense Attorneys Utah

Related….

  • Lineup Procedures in Criminal Cases
    Lineup Procedures in Criminal Cases
    Lineup identifications are a common investigative tool used by Utah police. Photo lineups and in-person lineups present different potential problems.
  • 402 Reduction Process in Utah
    402 Reduction Process in Utah
    A felony conviction can be reduced to a misdemeanor, or a misdemeanor can be reduced to a lower degree by filing a motion under Utah Code section 76-3-402. This process is commonly referred to as a "402 reduction." It can be useful in clearing felony convictions from a criminal history record, in shortening the waiting period required for expungement, and in restoring expungement eligibility. How and when this tool may be used in cleaning up a person's criminal record will depend on several different factors. This page presents only general information on the requirements for obtaining a 402 reduction. For…
  • Concealed Firearm Permits & Denials
    Concealed Firearm Permits & Denials
    Utah's Department of Public Safety, Bureau of Criminal Identification ("BCI") is tasked with reviewing applications for concealed firearm permits (concealed carry permits) in Utah. Certain circumstances will result in an automatic hard denial. Other denials can involve circumstances that give BCI discretion in approving or denying the permit application. The following article discusses a few of the more common issues that can result in a denial. There is a difference between the right to purchase, possess, use, and own a firearm under the Second Amendment and the government's discretion and authority to issue a concealed firearm permit. Under Utah law,…

Call a Utah Attorney

Call a Utah Criminal Attorney in Davis and Salt Lake Counties


Find Utah Criminal Law Help

Paragraph Spacer

5-Star Reviews for Utah Criminal Defense

5-Star Reviews - Criminal Defense Attorneys

“I worked with Stephen and he was great to work with. Very knowledgeable and go-getting.”


For the People – For Attorneys

Important Information for People Facing Criminal Prosecution in Utah

Knowing what you are facing in a Utah criminal prosecution is critical in choosing the right attorney to defend your rights. Articles in this section provide imformation about Utah's criminal justice system that each person should know. Click to learn more.

Information for Utah Criminal Defense Attorneys

The "For Attorneys" section provides tips and articles from the Canyons team intended to assist Utah defense attorneys improve their knowledge base and hone the skills needed to successfully represent clients facing criminal prosecution. These materials must be considered in context of relevant constitutional provisions, procedural rules, case law, and statutes. Reliance on these materials by individuals without the assistance of an experienced attorney is not recommended.

Contact Form 7

    Find a Salt Lake Criminal Defense Attorney






    CONTACT US

    Case Results – Select Victories in Utah Criminal Defense

    Utah Criminal Defense Attorney Wins

    Client faced felony charges for allegedly using a gun to menace another driver during road rage incident. Defense trial strategy demonstrated that the alleged victim was the likely aggressor and that client had taken reasonable action to defend himself.

    Client facing first-degree felony and potential life in prison. Effective cross-examination of victim at preliminary hearing showed that someone else had committed the crime. Judge ordered case dismissed without trial.

    First-degree felony burglary charges with gang enhancement were filed based on client’s participation in burglary planned by other individuals. Based on client’s peripheral involvement and evidence his conduct was out of character, prosecutor consented to abeyance agreement at misdemeanor level that would ultimately lead to case dismissal.

    Utah CLE Events / Calendar for Criminal Defense Attorneys

    For Laywers in Utah

    Canyons Law Group defense team presents on topics relating to internet crimes, including: prosecutor's constitutional discovery obligations; digital technology issues in discovery; police practices in internet "sting" cases; statutory history and interpretation for defense; and more.
    ↽⇀

    Contact Canyons Law Group directly to register. Space is limited.
    ↽⇀

    One hour MCLE credit for Utah attorneys pending approval.

    • Felonies
    • Misdemeanors
    • District Courts
    • Justice Courts

    Constitutional – Utah Defense Attorneys

    Sixth Amendment Double Jeopardy - Utah Criminal Lawyer

    Constitutional Rights

    P Spacer

    • Team Strategy
    • Jury Trials
    • Appeals
    • Expungements

    5-Star Reviews for Utah Criminal Lawyers

    5-Star Reviews - Criminal Defense Attorneys

    “The feedback from [the person] that I referred to them was exceptional. Thank you both!”


    Click to Call a Utah Defense Attorney

    Call a Criminal Defense Lawyer in Utah


    HR Spacer


    Contact Form for Utah Criminal Lawyer

      Contact a Crimnal Lawyer in Salt Lake City






      CONTACT US

      Selected Victories – Utah Criminal Defense





      Client charged with felony aggravated assault for using broken bottle as a weapon. Defense case focused on self-defense, resulting in not guilty verdict by the jury at trial.

      Contractor client was accused of theft for alleged misappropriation of customers’ funds following delays in cabinetry work. Case was bound over for trial following preliminary hearing. Successful motion to quash demonstrated that the legal theory supporting the government’s theft charge was flawed and required dismissal. Court granted dismissal.

      Call Attorney in Utah Footer

      CALL NOW   -   801-449-1409   -   TEXT NOW

      For the People – For Attorneys – Mobile

      Utah Attorney Protecting Liberty Rights

      Knowing what you are facing in a Utah criminal prosecution is critical in choosing the right attorney to defend your rights. Articles in this section provide imformation about Utah's criminal justice system that each person should know. Click to learn more.

      Important Information for Criminal Defense Lawyers in Utah

      The "For Attorneys" section is intended to assist attorneys defending clients in Utah criminal cases. These articles must be read in context of relevant constitutional provisions, procedural rules, case law, and statutes. Reliance on these materials by individuals without the assistance of an experienced attorney is not recommended.

      Constitutional Rights Legal Education

      Criminal Defense Attorneys Utah - Constitutional Rights

      Sixth Amendment Double Jeopardy - Utah Criminal Lawyer


      Search for Utah Criminal Law Information

      Contact Information for Utah Criminal Defense Lawyers

      Canyons Law Group, LLC
      Offices in Salt Lake and Davis Counties
      Serving Clients Statewide

      952 South Main St., Suite A
      Layton, UT 84041

      560 South 300 East, Suite 200
      Salt Lake City, UT 84111

      801-449-1409

      Utah Criminal Defense Locations

      Serving Northern Utah and the Wasatch Front
      Salt Lake, Davis, Weber, Cache, Tooele, Summit, Box Elder, Morgan, and Wasatch Counties

      Serving Central and Southern Utah
      Washington, Iron, Kane, Sevier, Sanpete, Juab, and Carbon Counties

      Make Online Payment

      Payments for Utah Attorneys
      • EnglishEnglish
      • EspañolEspañol
      Criminal Defense Page Archve
      Sitemap

      Copyright © 2010–2023 · Canyons Law Group, LLC · Stephen W. Howard, PC

      This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.