Preliminary Hearing

Even in cases where probable cause will be easy to establish, a defendant may decide not to waive the preliminary hearing, despite the risks. There are several benefits he might derive from the hearing that are unrelated to screening the prosecution's case.

First, the preliminary hearing can serve as an informal means of discovery. Discovery in criminal cases is typically far more limited than in civil actions, and resource constraints may hamper defense counsel's ability to learn the substance of the prosecution's case on her own. At the preliminary hearing, however, the prosecutor often will have to reveal the names of key witnesses and the substance of their testimony, information that can be of great value in preparing a defense. The ability to cross-examine government witnesses also can be an effective discovery tool, although here the defense must proceed with caution. In an effort to uncover information, the defense questioning may signal to the prosecution what the defense theory will be at trial, may inadvertently reveal a gap in the prosecution's case, or may even show that the defendant played a more prominent role in the crime than the government originally thought. As a result, unless the preliminary hearing is the only viable method of obtaining crucial information, defense counsel may prefer to learn what it can from the prosecution's case-in-chief, and not pursue additional discovery through cross-examination.

A second benefit is that the defense can lay the groundwork for the future impeachment of witnesses. If a witness gives helpful testimony to the defense at the preliminary hearing, but then backs away from that position at trial, the defense can use the prior, under-oath testimony to show how the witness has changed her story. Having a witness commit to a certain version of events can be particularly important at this early stage in the process, since at that point the witness may not be as well prepared to testify as she will be at trial. Again, however, there are risks in trying to extract useful testimony from a witness. If the cross-examination of the witness is too sharp or confrontational, the witness may harden her position in favor of the prosecution. In addition, if defense counsel exposes a flaw in the witness's testimony at the preliminary hearing, the prosecution may have time to correct the problem or find another witness by the time of trial.

For the prosecution, the main benefit of the preliminary hearing is the chance to perpetuate testimony. Once a witness has testified at the preliminary hearing, that testimony can be introduced as evidence at trial if the witness later dies, disappears, or otherwise becomes unavailable. Although defendants have complained that this procedure denies them the right to cross-examine the witness at trial, these objections are often, although not always, unavailing. Courts have generally concluded that because the defense has the opportunity to cross-examine the witness at the preliminary hearing, its ability to challenge the testimony is adequately protected. An additional benefit to the prosecution is the ability to "lock-in" a witness' story. If the prosecution is concerned that a witness has a poor memory or will feel pressured to alter her testimony prior to trial, placing the witness under oath and on the record at the preliminary hearing reduces the chances that the witness will later change her story.

A third benefit of a preliminary hearing is that it can help educate the defense, the prosecution, and the court. The suspect may realize for the first time the strength of the prosecution's case, which may help her decide whether to seek a plea bargain. For the prosecution, the hearing is the first chance to present the case in a formal setting, which encourages early preparation of the case and helps reveal how witnesses will perform under cross-examination. Finally, if the suspect was not represented at the first appearance (as is often the case), the preliminary hearing is the first chance defense counsel has to bring certain information to the court's attention. Most notably, the defense may move for a reduction in bail or other changes in the pretrial release conditions based on information not previously available to the magistrate.