Your California Preliminary Hearing

Posted about 5 years ago. Applies to California, 5 helpful votes

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1

What Is a Preliminary Hearing in CA?

In CA, before you can be prosecuted for a felony a magistrate must determine that there is sufficient probable cause to bind you over for trial. The standard of proof is very low, less even than in civil trials and you should not expect to win. After the preliminary hearing you will be arraigned on a felony information (like a complaint) and bound over for trial.

2

What Can I Do to Protect Myself at a Preliminary Hearing?

Not much. Because of Proposition 115, the police are allowed to use hearsay evidence in the prelim. Your attorney is not allowed to ask questions that are designed to seek out information or discovery. All he/she can do is cross examine on the elements of the offense with which you are charged.

3

Do I Have Any Recourse?

After your prelim is over if you were held to answer your attorney can make a motion to dismiss or a 995 as it is commonly called. At your 995 hearing a 2nd judge must look over the prelim transcript to see if the first judge was right. Sometimes your attorney can win a 995 motion but if he does the DA gets to refile the case. If the DA loses a 2nd prelim or 995 the case is dismissed and you are free.

4

When Will My Preliminary Hearing Take Place?

No less than 10 days after your first arraignment and no more than 60 unless you have waived time. Do NOT waive time. Having to conduct a prelim within 10 days puts a real strain on the Courts and the DA. If everybody refused to waive time most cases would be dismissed.

Additional Resources

John M. Kaman

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