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Preliminary hearings - a note for both lawyers and clients.

The first time your client should see a courtroom, if he’s out on bond, is a preliminary hearing. Some jurisdictions first require an advise of rights hearing, but many don’t.

If your client is in jail and can’t make bond, or if your client has no bond, file a motion for a bond hearing at the same time you file a motion for a preliminary hearing. Have them both set at the same time. There’s a tactical reason for that which I’ll explain in a minute.

Many jurisdictions bring an accused before the judge within 72 hours of arrest to have the judge advise the accused of his charge and to set a bond. Other jurisdictions have what are called “pre-set bonds.” Pre-sent bonds are set by an order from the presiding judge that certain charges will have certain bonds. It eliminates the need for bond hearings.

Preliminary hearings are also sometimes called probable cause hearings and is some places are still called, in rare instances, coroner’s inquests.

A preliminary hearing is a process hearing that many lawyers fail to understand is a vital part of the criminal justice procedure.

If I asked 10 lawyers to tell me their views on preliminary hearings, eight of them would say a preliminary hearing is a waste of time. They would say, “Why bother having a preliminary hearing when the preliminary hearing is just a formality and the judge is going to bind the case over for indictment anyway?”

I am one of probably 20% of criminal defense lawyers who believe that the preliminary hearing is your first opportunity to attack the case and get a dismissal by a judge prior to indictment.

It’s also a good first glimpse at the officer’s testimony – testimony you can preserve for impeachment later at trial.

Many lawyers say, “Why would I take the risk of the judge dismissing the case only to have the case later presented to the grand jury and my client is indicted, arrested and then has to make a new bond?”

For non-lawyers, a point: In most jurisdictions, a case dismissed at a preliminary hearing can be presented to a grand jury for indictment. If a person accused of a crime has a case that is dismissed after a preliminary hearing, that person could be re-arrested after the indictment and be forced to make a new bond.

So, the question is understandable, but it misses the larger point. The reality is that having looked at my caseload over the last 18 years, roughly 20% of the cases dismissed at preliminary hearing were never indicted later. This can happen for a variety of reasons: 1) The prosecutor, once having lost a motion to dismiss at preliminary hearing, just gave up; 2) The prosecutor forgot to present it to the grand jury.

My position is simple: The law is poker. You don’t deliberately lose a hand at poker in hopes of

winning another one later.

A dismissal at preliminary hearing is also beneficial to the client. While many lawyers say they don’t want to subject the client to re-arrest and having to make a new bond, many clients will suffer greatly while on bond.

For example, clients on bond can't find jobs because of background checks which show they're on bond. Also, many bonds require weekly drug testing (at $20 to $40 each test), which clients can't afford.

So, preliminary hearings are important, and I try to always hold them, and have then taken down by a court reporter to preserve the testimony for evidence at trial.

(Required by Alabama law: No representation is made that the quality of legal services is greater than other lawyers.)

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