I have not had a preliminary hearing yet ... can I simply tell my court appointed defense attorney to waive the preliminary hearing?
... further ... based on investigations we conducted ... there appears to be a lot of evidence and witnesses on my side ... additionally I do not want my Civil Rights remedies to be affected and I have been told by a Civil Rights lawyer that a preliminary hearing would negate or hurt my claims related to 4th Amendment rights ...
Criminal Defense Attorney
Unfortunately, you cannot force a waiver of the preliminary hearing. Both you and the prosecution have a right to the hearing.
I suggest that you have a detailed conversation with your criminal attorney about your case. Perhaps you should have the civil rights attorney and the crimminal attorney discuss why the preliminary hearing should be waived.
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There is no reason why a preliminary hearing would hurt or negate 4th amendment claims you might potentially make (I have no clue what these might be). I also don't know or understand why you are having a civil rights lawyer second guess your criminal attorney. The more attorneys you consult the more conflicting opinions you are likely to get.
I have waived a preliminary hearing only once because of issues unique to that case. It is not an advisable thing to do. In my case the prosecution was happy not to have to do one
It sounds like your case has some issues that you have not fully explained here. Frankly, it would be unwise of you to take our advice on how to proceed given those facts. Although I agree with the answers already given, in your situation you need to seek the advice of those already representing you.
I can only try to guess and read between the lines of your question. Your attorney could file a motion to suppress evidence at the preliminary hearing and in certain circumstances, re-litigate that issue in another suppression motion after preliminary hearing. If that's the Fourth Amendment issue somebody was mentioning... yes, it could be an issue.
Without knowing a whole lot more about the facts of your case or the reasons why you would/wouldn't want to waive your right to a preliminary hearing, we're all just speculating. Your attorney is in the best position to advise you about these issues.
Best of luck.
Criminal Defense Attorney
The prosecution and the defense have a right to have the preliminary hearing. Generally, the defendant has the right to be brought before the court within 10 court days and / or 60 calender days from the date of arraignment.
Ordinarily, the prosecution will not object to a defense waiver of the preliminary hearing, hownever all case are different and their ar tactical choices to be made on both sides as to whether to compel a preliminary hearing and or waive a preliminary hearing.
Sometimes preliminary hearing are positive things in which your attorney can start to tell the story of what actually happened and / or mitigate the courts mind set towards the defendant. the opposite is lso true. this will be based on your attorney's valuation fo the facts and the law relevant to the issues.