Proceedings by Way of Preliminary Hearing in general

In general

Counsel's role is much greater where the prosecution proceeds against the defendant by way of a preliminary hearing, than when a grand jury is used.FN2 The preliminary hearing involves the prosecution introducing at least enough evidence to establish that there is reasonable cause to believe that a crime has been committed and that the defendant has committed it.

Therefore, counsel for the defense will have an opportunity to test the sufficiency of the prosecution's case by cross-examining those witnesses the prosecution calls to testify. Counsel may also want to call other prosecution witnesses likely to testify at trial, both to size them up as witnesses and to discover whether there are inconsistencies between their testimony and that of other witnesses.

In many jurisdictions, the preliminary hearing also provides an opportunity for the defense to litigate the legality of any searches or seizures that may have produced evidence against the defendant, and to challenge the admissibility of any evidence that comes from computers.

Where the evidence submitted to the court is insufficient to establish reasonable or probable cause to believe that the defendant has committed a crime, counsel can move to have the complaint dismissed based on insufficiency of the evidence.FN3 In some jurisdictions there is a limit on the number of times that the prosecution can refile a case once a complaint has been dismissed after a preliminary hearing.FN4

Where the case against the defendant is weak, counsel may be tempted to present witnesses to bolster the defense's version of the facts. This is an unusual action. Counsel will generally want to keep the testimony of such witnesses unknown to the prosecution as long as possible, thereby maximizing the defense's ability to present those facts at the time is most useful to the defense. In some cases, where a witness is very persuasive on behalf of the defendant, and where it appears that the witness may help persuade the prosecution of a weakness in its case, an exception to the general rule may be advisable.

The standard proof required before the judge holds a defendant to answer is far lower than the standard at trial. Therefore, cases are seldom dismissed at the preliminary hearing level, particularly if the question is one of credibility. Courts are most likely to indicate that there is a conflict, and leave it for the trial court or the jury to resolve the conflict.FN5