Written by attorney Edward D. Dowling IV

Preliminary Hearing ( aka Felony Exam )

The question of whether a defendant should request and participate in a felony exam is similar to the questions of whether the defendant should testify before The Grand Jury (see previous article “The Grand Jury “) and whether the defendant should testify at trial. As stated in the article about the Grand Jury , the answer is generally no because anything the defendant says can and will be used against him at trial and this also tips off the prosecutor as to what defenses the defendant will use at trial. However, there are times when the answer is yes. One of these times would be when the defendant has a good defense (s) such as an iron clad alibi defense that the defendant was far away from the scene of the crime at the time it was committed or perhaps defendant was incarcerated at the time on other charges. If the defendant would not be a good witness on his own behalf , he should not testify. However if the defendant is likeable, and articulate and believable and has a good defense then he may be a good witness on his behalf and should testify.

Another reason for a defendant to request and attend ( whether he testifies or not ) is for Discovery of the evidence and witnesses and strength and weaknesses of the prosecution’s case against the defendant. This way the prosecutor must tip off the defendant as to the prosecutor’s theory of the case and strategy and witnesses and evidence without the defendant having to tip off the prosecutor ( unless defendant testifies and presents witnesses and evidence ). Thus in the situation where the defendant does not testify or present evidence and witnesses there is everything to be gained ( valuable information about the prosecution’s case that will be used at trial ) and nothing to lose since defendant is not providing any information to the prosecution.

The information gained at the felony exam is usually not obtainable in any other way since unlike in a civil case, which has a liberal policy of discovery in which the parties can obtain almost any and every piece of evidence ( witnesses, documents , photographs, test results, etc. ), in a criminal case Discovery is limited to certain things and usually requires making a written motion demanding the discovery items allowed by Criminal Procedure Law Article 240. A full discussion of Discoveery is beyond the scope of this article.

Watch for future articles in Criminal and Civil Law.

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