How to Defend a Felony Case, Part 8: Preliminary Hearing, California Penal Code Section 738

Part 7: Follow Through

The eighth step in defending a felony charge is the preliminary hearing. The preliminary hearing occurs when the case has not been resolved at the readiness conferences because the prosecutors would not dismiss the charges and the client would not plead guilty. The preliminary hearing is like a mini trial, without a jury, except that the prosecutors need not prove that the client is guilty beyond all reasonable doubt. Instead, the prosecutors need only prove that there is a strong likelihood that a crime occurred and that the client committed it.

At the preliminary hearing, the prosecutors are required to put on evidence and have their witnesses (or at least some of their witnesses) testify. These witnesses are subject to cross examination by your lawyer. You also have a right to put on evidence and have your witnesses testify, but your right to do so is limited. In fact, many times lawyers decide not to put on any evidence at all. The reason for this is that it is sometimes better to see the evidence against you without tipping your hand and revealing your case strategy. Other times, it may be greatly beneficial to put on all the evidence you can. A client is only permitted to put on evidence that goes toward an affirmative defense—evidence that shows that you are not guilty.

If you win the preliminary hearing, your case is dismissed. If the prosecutors win, then the judge will deem you “bound over” to continue with the criminal procedure. The next step in the procedure would be an arraignment on an “information.” Information is like a criminal complaint. In fact it is oftentimes the same exact document. The courts just give it a different name to signify that you are now at the post-preliminary hearing stage of the process.

The attorneys at Wallin & Klarich have the skills and expertise to provide you with the best possible defense to your felony case. Our experienced felony defense California attorneys can be reached by phone at 1-888-749-0034. We will be there when you call.

Part 9: Motion to Dismiss the Information or Indictment