Waiving Preliminary Hearing

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.