Purpose of Preliminary
The purpose of a preliminary hearing (sometimes called a committal
or commitment hearing in Georgia) is “simply to determine whether there is
probable cause to believe the accused guilty of the crime charged,
and if so, to bind him over for indictment by the grand jury.”
The Real Reason To Have a Preliminary Hearing
More often than not, probable cause is established in the eyes of
the court of inquiry. So why have a preliminary hearing? Discovery,
discovery, discovery! However, you must engage in discovery without
appearing to be on a fishing expedition. As long as you conform to
the law and rules of evidence, you should be able to get as much
discovery as is available.
Rules of Evidence
Superior Court Rule 26.2 says that rules of evidence apply at the
preliminary hearing except that hearsay may be allowed. The rule
also says that the prosecutor has the burden of proving probable
cause. It also says that the defendant shall be allowed to introduce
evidence. Moreover, “the court of inquiry shall hear all legal
evidence submitted by either party."
Under the rules of evidence, every party has a right to confront
witnesses called against him as well as the right to a thorough and
sifting cross-examination of those witnesses. If a thorough and
sifting cross of the state’s witnesses is not allowed, the testimony
of that witness could not be used if the witness is unavailable.
At the hearing, defendant may be represented by counsel, or he may
represent himself. If the defendant needs to subpoena witnesses for
the preliminary hearing, he can rely on the court to compel
attendance of defense witnesses. An accused shall be given a
reasonable time to prepare for the hearing. If the hearing is
continued to a future date, it appears that if the crime charged is
bailable by the court of inquiry, the accused has a right to have
bail set at this point.
Your Client Can Be Charged With a New Offense
If the evidence at the preliminary hearing supports a new or
different charge, the court may bind the case over to the
appropriate court on the new or different offense. If your client
is charged with obstruction of a police officer, and you think the
evidence could be construed as aggravated assault on a police
officer, perhaps you wouldn’t really want a preliminary hearing.
In another instance, my client was out on a very reasonable bond for
possession of cocaine. The judge warned me if the evidence indicated
a more serious charge, he would bind it over on the more serious
charge and raise my client’s bond significantly. Since the evidence
would have showed intent to distribute rather than possession, my
client agreed to waive the hearing.
Should Your Client Testify at a Preliminary Hearing
Any testimony your client gives at a preliminary hearing would be
sworn testimony that could be used against him at trial. Why not
just use the hearing to get discovery and not give discovery.
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