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    Understanding The Right to a Colorado Preliminary Hearing


    Preliminary Hearing Process ColoradoIntroduction – Preliminary hearings are a critical stage in Colorado felony cases.  They provide the criminal defense lawyer with an opportunity to exercise some of the only leverage the Defendant has during the prosecution of a case. 

    They serve the function of compelling the parties to closely examine the strength of the evidence and then either to start the plea bargaining process or to “try” the prelim.  This Article examines all sides of the preliminary hearing in Colorado.

    Colorado Preliminary Hearing Law, Analysis and Tactics -Preliminary Hearing Process Colorado

    Shortly after the initial appearance in certain serious Colorado felony matters, a defendant is entitled to a preliminary hearing or examination at which the prosecution must introduce sufficient evidence to justify holding the case for court (also known as “bind over”)

    The defendant has a Sixth Amendment right to the assistance of counsel at this preliminary hearing.

    While a preliminary hearing is not constitutionally required, the Fourth Amendment does entitle the defendant to some judicial review of probable cause.

    This hearing is different from the review for probable cause for a warrantless arrest which must occur if detained beyond 48 hours. [County of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991) (an arrested person must receive a probable cause determination within 48 hours unless the prosecution establishes a “bona fide emergency or other extraordinary circumstance”).]

    There is a statutory right to cross-examine the prosecution’s witnesses at the preliminary hearing.

    Preemption by Grand Jury Indictment

    If the defendant is indicted by a Colorado statewide grand jury, a prosecutor is not required to conduct a preliminary hearing.

    ……Compare Federal Cases and The Indictment Process

    In federal cases, the Department of Justice has a policy that forbids bargaining away the highest charge if it is “readily provable.” [See United States Attorney Manual (“USAM”) 9-27.300, 9-27.330, 9-27.430.] While on its face the policy appears to treat pre- and post-indictment plea bargaining identically, in practice, a prosecutor will maintain that any indicted charge is “readily provable” and will be more likely to forego charges that do not appear in an indictment yet. Therefore negotiations with the United States Attorney should be front loaded before the indictment.

    Timing Of The Preliminary Hearing

    The judge sets the preliminary hearing date at the initial appearance or arraignment – this must be set within 30 days unless the time “30” rule is waived by the defendant.

    Failure to hold a timely preliminary hearing results in release of the defendant, but not in dismissal of the charges. If the defendant wants more time to prepare, waiving the 30 day rule will make sense.

    The Standard of Proof For Colorado Preliminary Hearings

    The standard of proof at the preliminary hearing is probable cause.

    A Preliminary Hearing Is A Screening Device

    The preliminary hearing serves as a screening device to select those cases in which the evidence is substantial enough to bind the case over for trial and restrain the defendant’s liberty, either by bail conditions or detention.

    What If the Evidence Is Conflicting

    If testimony conflicts or the magistrate can draw any of several inferences, the magistrate must accept the prosecution’s version. (Hunter v. District Court, 190 Colo. 48, 53, 543 P.2d 1265, 1268 (1975).)

    Te preliminary hearing takes place in court before a lower court judge – known as county court

    Applicability of the Rules of Evidence

    The Rules of Evidence Apply But Are Loosened – Hearsay Is Admissible

    Some prosecutors andJudges routinely rely solely on hearsay, and the only witness will be the investigating officer, however Colorado requires that some non-hearsay evidence be produced.

    The Arresting Officer

    The criminal defense lawyer should TRY to speak to the investigating and / or arresting officer. The officer may have his or her own doubts about the victim’s story and the value of the case.

    The officer might be willing to:

    • Clue the lawyer into helpful concessions that he or she would be willing to make on the stand (e.g., the victim was noticeably intoxicated when he reported the offense).

    • Offer to persuade the victim to accept a non-criminal disposition, such as restitution.

    • Warn the lawyer about pitfalls in certain lines of questioning.

    However, it is just as likely that the officer may try to lobby the lawyer to waive the hearing so the matter can be dealt with “downtown.” The officer’s motivation might range from the weakness of the case to the simple desire to avoid waiting all day in a crowded courtroom for the case to be called. In any event, the criminal lawyer  seldom should waive the hearing.

    The officer has already done as much harm to the defendant as he or she can by arresting him and filing the complaint. Any frustration by the officer at the criminal lawyer r refusal to waive the hearing will not worsen the situation appreciably.

    Cross-Examination of Preliminary Hearing Witnesses

    There is a right to cross-examine to test the plausibility of the witness’s story and his or her willingness to adhere to it on cross-examination.

    Judges will allow some leeway in this regard. Most recognize that an assessment of the victim or witness’s credibility is essential if they are to discharge their screening function.

    However, Judges will have little patience for questions trying to show a witness’s general untrustworthiness, such as questions regarding the witness’s bias or motive or questions about the witness’s criminal record or uncharged acts of dishonesty.

    Such questions are meaningless in the preliminary hearing context, and it is best to avoid giving the witness practice at fielding the trial cross-examination.

    Defense Objectives

    Dismissal or a Reduction in Charges

    With the prosecution’s light evidentiary burden and the relaxation of evidentiary rules at preliminary hearings, a full dismissal is unlikely .Judges are disposed to err on the side of letting the case go forward so that the court of general jurisdiction can evaluate the case, especially if the charge is a serious one. They are more likely to entertain arguments that the case is overcharged.

    However, charges sometimes are an outright error, and the criminal lawyer must assess whether to “go for broke” at the hearing.

    Dismissal at the hearing has the obvious advantages of freeing the defendant from detention or bail restrictions, from the uncertainty of pending charges, and the adverse publicity that may result from formal charges.

    The near certainty that this attempt will fail cautions against any sacrifices at the preliminary hearing that will harm the defense case later.

    The Criminal Defense Lawyer Should NOT

    • Expose defense theories that the prosecutor can investigate and refute.

    • Open defense witnesses, especially the defendant, to cross.

    Furthermore, dismissal may prove a Pyrrhic victory. Apprised of the weaknesses in his case, the prosecutor may improve it and refile.

    Bail Reduction

    Even if the defense presentation falls short of convincing the Judge to dismiss, demonstrating the weaknesses in the case may convince the Judge to reduce bail to an amount the defendant can make.

    Questioning may show that:

    • The victim’s testimony is suspect.

    • Injuries are not so severe.

    • The defendant’s involvement in the transaction was minimal.

    Questions can be directed on all three points.

    Further along in the proceedings, these same three points might justify a more lenient plea and sentence.

    Discovery At The Preliminary Hearing

    Formal discovery is sparse in criminal cases. Even if funds are available for investigation, witnesses may be difficult to find and reluctant to be interviewed. Prosecutors often have little time to prepare witnesses before the hearing, and the defense might have its best chance to hear the witnesses’ unrehearsed story, verbatim and under oath.

    Even if a Judge severely limits cross-examination, or if the hearing reveals no facts previously unknown, the opportunity to hear the witness live and to record that testimony is invaluable.

    The criminal lawyer can start to assess whether to:

    • Attack the witness’s credibility at trial.

    • Claim that the witness is honest but mistaken.

    • Adopt a theory that accepts this witness’s testimony as accurate.

    • Avoid trial altogether.

    Cold facts about the witness’s background are no substitute. Even educated witnesses with clean records may prove to be inarticulate, twitchy or surly. Likewise, the felon who never completed high school may be charming and charismatic.

    Locking In Testimony

    Commit the prosecution’s witnesses to a sworn version of events that cannot be changed at trial.

    When the criminal lawyer  obtain a favorable concession or even a version of events that is not as harmful as other possibilities, use short, concrete, specific questions to assure that the answer cannot be changed or explained later. Questioning also should explore explanations both for the purpose of excluding them and learning them before they become a surprise at trial.

    On a charge against a pharmacist for illegally dispensing medication without a valid prescription, a treating physician may testify that based on the lack of an entry in his chart, he did not prescribe the medication on a particular date.

    However, he may have no independent present recollection of whether or not he did prescribe the medication on that date. He should be asked if there is any other reason he can say that he did not prescribe that particular medication for that patient. Perhaps he does not believe in that medication for the condition at issue. Or, the patient might have been taking another medication that would have interacted adversely with the particular medication.


    General Points

    A preliminary hearing is not a civil deposition. Although the criminal lawyer  have some leeway to probe, it will be severely limited.

    Therefore, the criminal lawyer  must begin to think of the likely defense theory and focus questioning on laying the basis for that theory by discovering and locking in testimony helpful to the theory and excluding harmful explanations.

    Alternatively, the preliminary hearing may debunk the defense and direct the criminal lawyer  to explore a different theory.

    These are critical things to understand about preliminary hearings:

    • A preliminary hearing is not a trial.

    • Many issues that are foremost with the defendant (e.g., the victim’s mendacity, the officer’s abusiveness) do not matter at all to the Judge.

    • An overly aggressive cross-examination may frustrate efforts to discover the prosecution’s case.

    • Defense witnesses generally should not testify.

    • The defendant should almost never testify.

    Obtain All Charging Papers and Police Reports

    In addition, the criminal lawyer  may make a demand for exculpatory evidence. [Brady v. Maryland, 373 U.S. 83 (1963) (prosecution has a due process obligation to disclose exculpatory evidence);

    The criminal lawyer  may also use the hearing as an opportunity to subpoena records from third parties even if the criminal lawyer choose not to offer the evidence at the hearing. A subpoena cannot require a witness to come to counsel’s office, but the criminal lawyer may mark on the subpoena that the witness, if he chooses, can avoid a personal appearance by delivering the subpoenaed records to counsel’s office. This is especially effective for business records, which counsel then can use to begin investigation, to share with witnesses and to plea bargain.

    The Lawyer Should Visit the Scene

    In some cases, familiarity with the scene is indispensable to understanding whether the crime could have happened as the prosecution describes.

    The preliminary hearing offers the defense an opportunity, perhaps the only one, to have the prosecution’s witnesses place themselves by their testimony in locations where they could not have observed what they claim to have seen. By the time of trial, the prosecutor probably will have persuaded the witnesses to reconcile these inconsistencies.

    Also, specific descriptions of where witnesses were in relation to each other and to key events are unlikely to appear in police reports or other discovery. The hearing is the time to obtain this information, and often the criminal lawyer  can understand and direct this testimony through questions only if the criminal lawyer  have viewed and paced the scene.

    The Criminal Lawyer Should Interview Defense Witnesses

    Defense witnesses can:

    • Steer the criminal lawyer  toward the successful defense and away from the fruitless.

    • Assist in disabusing the defendant of an improbable story.

    • Alert the criminal lawyer  to concessions prosecution witnesses are likely to make.

    Such interviews serve to develop the defense theory that should be pursued at the hearing.

    Common Issues At The Preliminary Hearing

    The “Fishing Expedition/Discovery” Objection

    Both practitioners and judges recognize that discovery is a legitimate defense objective at a preliminary hearing.

    A lawyer is needed at the preliminary hearing because she can use questioning skills to discover the prosecution’s case

    Nevertheless, courts uniformly rule that the questions directed purely at discovering the prosecution’s case should not be allowed.

    As a result of the tension between the rule and the reality, defense counsel must frame questions carefully and be prepared to respond to the objection that the question serves no purpose but discovery.

    A question is not objectionable merely because discovery is an incidental result of a question that does have some tendency to test the existence of probable cause. Discovery is an acceptable by-product of the probable cause inquiry, but not a permissible end unto itself


    The criminal lawyer may ask an officer who claims to have observed the defendant sell drugs the description and identities of other participants and bystanders with the following question: Was the buyer stopped, searched, questioned or arrested?

    The criminal lawyer  may be seeking witnesses, but the criminal lawyer  also can argue that the criminal lawyer  are testing the officer’s perception and the plausibility of the officer’s story.

    Other valid responses include:

    • “The prosecution covered this area on direct.”

    • “I’m testing the witness’s recollection (or story).”

    • “Whether my client confessed, ran, had a gun or had a large amount of cash goes to the    issue of whether or not there is probable cause.”

    To Impeach or Not?

    The criminal lawyer may be tempted to launch an aggressive cross-examination, attacking the witness with the full cross-examination arsenal (prior inconsistent statements, motive and bias, prior convictions and dishonest acts). However, this is generally a bad idea. First, it will not succeed, and second, it will interfere with the criminal lawyer legitimate defense goals of discovery and obtaining concessions from the witness.

    If the basis for the impeachment is information that the prosecutor does not possess and is not likely to obtain before trial (a motive to lie, a bias, an inconsistent statement contained in a document not within police or prosecution files) the criminal lawyer  should almost never reveal the information at the preliminary hearing, unless it is the rare bombshell that could cause the prosecutor to lose all confidence in the case. Such bombshells land in fiction, but almost never in fact.

    Reasons not to impeach:

    • It will not affect the bind-over decision. In many jurisdictions, the Judge should take the prosecution’s evidence as true in deciding whether to bind over.

    • It reveals lines of cross-examination, surrenders the element of surprise and enables the witness and prosecutor to prepare to respond at trial.

    • It consumes some of the limited time the Judge allotted for the hearing, subtracting from the time that may be used for discovery.

    • It antagonizes the witness. Not only will he become uncooperative during the hearing, but he is less likely to submit to an informal defense interview afterwards.

    Reasons in favor of impeachment:

    • If the witness equivocates or fumbles, the Judge may consider not binding over or holding the case on a lesser charge. The prosecutor may start to consider a more lenient plea offer.

    • Where the inconsistency between a prior statement and the present is drastic, the criminal lawyer  might need to know the explanation for it sooner rather than later. For example, the victim witness who incriminates the defendant at the hearing initially may have told the police that the defendant had nothing to do with crime, because the defendant threatened the witness. At trial, the criminal lawyer  would never ask why the change in story, but the “why” question can be asked without much risk at the preliminary hearing.

    • If the witness becomes unavailable at trial, the preliminary hearing testimony may be admissible. If this is a possibility, the criminal lawyer may want to conduct the impeachment at the hearing. On the other hand, the criminal lawyer can impeach an unavailable declarant by introducing the impeaching material at trial.

    Reading an inconsistent statement into the record does not capture the flavor of a witness squirming and equivocating before a jury, but it does have the advantage of depriving the witness of an opportunity to explain. Further, while the criminal lawyer lose the effect that an unsavory witness has on a jury, the prosecution likewise has to make do with a cold transcript read to the jury.

    Waiver Of The Right to Preliminary Hearing – The Debate

    The preliminary hearing presents an opportunity to question witnesses and officers before they have had a chance to rehearse, clarify and coordinate their stories. The prosecutor handling a preliminary hearing typically sees the file for the first time that day and may not speak to the witnesses at all before calling them to the stand.

    The hearing is less valuable and the waiver more understandable in those jurisdictions (such as the federal courts) where only agents and officers testify, and the testimony consists of hearsay and multiple hearsay. However, even there the hearing provides some discovery. In federal court, having a hearing also forces the prosecution to disclose law enforcement reports that it otherwise would not have to provide until the time of trial.

    The criminal lawyer should consider waiving the hearing in these situations:

    • Absent a waiver, the prosecutor will preempt the hearing by obtaining a grand jury indictment or filing an information that will include more serious charges.

    • The prosecution will reduce the charges or offer a more favorable plea than otherwise available in return for the waiver. Make sure to memorialize the agreement, either by having the prosecutor amend the complaint on the record, by stipulating on the record that the case will be bound over only on the lesser charge, or by following it up with a confirming letter.

    • The case has a high profile, and the preliminary hearing will disclose to the public inflammatory evidence that will wreck the defendant’s chance for a fair trial. The press and public have a First Amendment right of access to preliminary hearings. To close the hearing, the defendant must show a substantial probability of prejudice and the lack of any reasonable alternative to closure, a standard rarely met.

    • The hearing may alert the prosecution that the crime is more serious than initially believed, and the defendant is undercharged.

    • The victim might be amenable to a lenient or even non-criminal disposition, but after testifying and weathering cross-examination, the victim may harden his or her position. This may arise especially where the victim is a domestic partner or friend.

    • The criminal lawyer  know that a crucial prosecution witness is unlikely to appear at trial, and holding the hearing will enable the prosecution to preserve the testimony for trial.

    Calling Witnesses At The Preliminary Hearing

    Defense Witnesses

    The criminal lawyer  may call witnesses, including the defendant, at the preliminary hearing. However, the criminal lawyer should not.

    Calling witnesses gives the prosecution all that it strives to keep from the defense: free discovery, a chance to lock in testimony, and a fixed story that can now be investigated and refuted. Despite the criminal lawyer’s best efforts, no defense attorney can know the case thoroughly at this early stage, and even a well-rehearsed defendant’s story may crumble before unexpected questions on cross and evidence in rebuttal. Finally, defense evidence most likely will make no difference in the outcome.

    If the prosecution case already established probable cause, the Judge will not weigh the credibility of the witnesses and revisit that determination.

    Prosecution Witnesses

    Calling prosecution witnesses in the criminal lawyer r case may seem a clever idea, particularly when the prosecution relies on an interviewing officer’s hearsay recitation of the witness’s story. However, in litigation clever ideas generally turn out to be bad ones.

    Prosecutors and Judges are wary of this technique and will demand an offer of proof before permitting the testimony.

    Although the state rules authorized a defendant to call witnesses at the hearing, the testimony must be relevant to the probable cause determination.

    If the criminal lawyer has not interviewed the witness, the criminal lawyer has nothing to proffer.

    If a witness has been interviewed and an investigator has memorialized the statement (as always should be done with exculpatory statements), it is unwise to disclose the helpful defense evidence in a setting where there is little to gain.

    If the criminal lawyer feels that the witness may change his story, an investigator’s testimony at trial will be less convincing than the transcript of the sworn preliminary hearing testimony, so have the witness sign a sworn statement or give an audio or videotaped statement outside the hearing.

    Furthermore, if the criminal lawyer calls the witness on direct, the lawyer must proceed with non-leading questions, but the prosecutor can lead the witness and attempt to mold the story to fit his case. Worst of all, if the witness offers some incriminating testimony and then fails to appear at trial, the criminal lawyer  now have preserved evidence that the jury never would have heard.

    There may be an exception where the witness is willing to recant entirely his or her story to the police. However, be cautious even in this situation. Full recantations are notoriously suspect. Often they achieve nothing, but rather serve to prove the witness’s misplaced affection for the defendant, or the defendant’s ability to intimidate.

    Appealing The Bind-Over Decision

    Appeals from preliminary hearing rulings lie with the trial court. Such a petition or motion must be raised before trial, because a guilty verdict or plea cures any error in the preliminary hearing.

    The trial court’s denial of the writ or motion is not a final order and is not appealable. However, the prosecution can appeal a court’s order granting the writ and dismissing the case.

    Re-arrest After Dismissal

    Jeopardy does not attach until trial. Therefore, the prosecution can refile charges after dismissal at a preliminary hearing and rearrest the defendant.

    Although the threat of rearrest is a great disruption to the client’s life, it should neither deter the criminal lawyer from seeking dismissal, nor lead to waiving the hearing. A dismissal will give pause to most prosecutors. If they cannot prove the case under a probable cause standard, they will worry about convincing a jury beyond a reasonable doubt.

    The defense can portray a refiling, even if legally permissible, as overreaching. Furthermore, to avoid a second dismissal, prosecutors will tend to “overtry” the second preliminary hearing and introduce more evidence than usual, thereby providing the defense with additional discovery.

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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