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Preliminary hearing

California |
Filed under: Criminal defense

If representing yourself at a preliminary hearing... is it good to ask less questions and see that the crown has as evidence? Is it ok to cross examine ... with leading questions?

If I wanted to do prelim myself, but would get a lawyer if it was decided thee was to be a trial... what would be the best way to attend prelim yourself? Just listen to what evidence is given?

Attorney Answers 2

Posted

You have an absolute right to defend yourself at a preliminary hearing, but in my professional and personal opinion, you are making a terrible mistake by representing yourself in a criminal proceeding -- representing yourself at a preliminary hearing is just not a good idea.

If you do decide to get an attorney after the perlim, whatever defense you attorney you hire is not going to be happy -- that I assure you. At the prelim, get a public defender appointed and stay out of the way I guarantee that even the most burned-out unhelpful public defender will still do a much better job than you would on your own.

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Posted

I appreciate your willingness to take on the system yourself, but with all due respect, you're making a huge mistake, even if it's just through the preliminary hearing. Your question suggests your unfamiliarity with procedure and tactics that can have serious consequences against you.

The burden of proof at a preliminary hearing is quite low - it's a "probable cause" standard. Yes, you have the right to represent yourself at the preliminary hearing - and all the way through trial if you so choose. Because the burden of proof is so low, going to a prelim is an almost certainty you're headed to trial, so a prelim isn't just a fun little thing to try yourself, then get an attorney when it gets serious. It's already serious.

There may be tactical reasons to opt not to cross examine a witness at any hearing, but that would be determined by the case and the evidence. If there was a glaring lack of proof of any particular element of the charge, then choosing to not ask questions and arguing against being held for trial may be a tactic. Of course, getting witnesses locked into statements under oath is another important goal at a preliminary hearing. You can also be setting up defenses for trial if a trial is inevitable. There are motions to dismiss the information under Penal Code section 995 based on what happens at the preliminary hearing, but it's only based on what happens at prelim, so doing the hearing well matters. I've had cases where I asked very specific questions at the preliminary hearing in order to set my client up for the best outcome at trial. I've also asked questions designed to exploit what I thought were weaknesses in the case that lead to the dismissal of all charges on a motion later.

You may want to consult with an attorney BEFORE your preliminary hearing to discuss this in person before you commit to something that you can't undo. You're facing felony charges that carry the possibility of state prison time. This isn't a DIY situation. You're going against a prosecutor who does have formal legal training and is hell-bent on convicting you.

My strongest suggestion: Level the playing field and get representation.

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6 comments

Asker

Posted

can you tell me why most lawyers have their clients wave their primanary hearing

Asker

Posted

i went and spent a day viewing court cases at my local court house. everyone i watched waived that right

Joseph Briscoe Dane

Joseph Briscoe Dane

Posted

In my experience, it is rarely done. What you may have been seeing is defendants waiving their right to a speedy preliminary hearing, but not waiving the preliminary hearing itself.

Asker

Posted

im wondering if attorneys are addvising their clients wrong ! because of greed they can take on more cases a day if they waive that right they only have to spend few mintues on each case. the courts allow it to happen because lack time in the day they would need ten times more court houses to handale all the of cases

Asker

Posted

if you go watch fellony court every case attorneys have their clients wave that right then take a plea bargin, they get time the state get the conviction attornys get the money.

Asker

Posted

if go ask prisoners everyone in most cases waived that right most have no idea what even goes on during the trial because their attorneys paid by state or private just have them give up the best chance to see what their up against they trust their best interests are being looked after.

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