A preliminary hearing is a weeding out mechanism for bad cases. The primary purpose is ferreting out groundless prosecutions. Preliminary hearings are only for Class A Misdemeanors and above. All felonies have the right to a preliminary hearing.
A preliminary hearing or preliminary hearing is like a “Mini Trial.” The government is required to put on at least “probable cause” evidence on each and every element of the charges offense. It is adversarial and you have the right to testify, call witnesses and admit evidence and exhibits.
Probable Cause is one of the lowest evidentiary burdens in American law. Only slightly higher burden than reasonable suspicion which is often used in criminal stop and frisks. “In order to establish probable cause, the prosecution must produce evidence sufficient to support a reasonable belief that the defendant committed the charged crime.” State v. Virgin, 2006 UT 29, ¶ 17. The same standard exits for issuing arrests warrants, search warrants as is for binding a defendant over at the preliminary hearing. Probable Cause is mentioned in the United States Constitution, 4th Amendment. The reasonable suspicion standard is not mentioned in the US Constitution.
“Under the probable cause standard, the prosecution has the burden of producing “believable evidence of all the elements of the crime charged,” but this evidence does not need to be “capable of supporting a finding of guilt beyond a reasonable doubt.” State v. Virgin, 2006 UT 29, ¶ 20.
Compared to Beyond a Reasonable Doubt, Probable Cause is a very low standard. Here are the most common American legal burdens in American law: Highest to lowest.
Beyond a Reasonable Doubt. Only in criminal cases and some Native American termination of parental rights. The government always bears this burden. Always. Read the actual jury instruction on beyond a reasonable doubt here: https://www.utcourts.gov/resources/muji/inc_list.asp?action=showRule&id=29#103
Clear and Convincing Evidence. A civil law evidentiary burden. Like going 75 yards on the football field.
Clear and convincing jury instruction here: https://www.utcourts.gov/resources/muji/inc_list.asp?action=showRule&id=1#117
Preponderance of the Evidence. A civil law evidentiary burden. Like going 51 yards on the football field. Jury instruction: https://www.utcourts.gov/resources/muji/inc_list.asp?action=showRule&id=1#118
Probable Cause. A criminal law evidentiary burden. The government bears this burden of proof in search warrants, arrest warrants and preliminary hearing binder over determinations.
Reasonable Suspicion. A criminal law standard that allows police officers to temporarily frisk and detain you upon suspicion of criminal activity afoot. The government bears this burden. It is a called a “TERRY STOP.” Based on the case Terry v. Ohio, 392 U.S. 1. The seminole establishing search case in US Constitutional law.
Preliminary hearings are supposed to ferret out bad cases, so therefore it is one of the first hearings held in a criminal case. The rough timeline is as follows:
Date of criminal allegations.
Arraignment. See this deeper article on Arraignments.
Waiver Hearing. Hearing which purpose it is to decide if any party is going to hold the preliminary hearing.
Preliminary Hearing. Without any discovery or procedural delays, you can conduct your preliminary hearing within 45 days of your arrest, or bail.
Outside of completely unbelievable evidence, the judge conducting the preliminary hearing can’t weight the evidence against each other to make a probable cause determination.
Hearing Auto Homicide. Witness Bill testifies the light was green and was in a good place to see the light. Witness Ted testifies the light was red and was also in a good place to see the light. The judge cannot weight the evidence and determine who was right—Bill or Ted. Instead the judge must take the evidence that Witness Bill testified too and bind the case over as having sufficient factual probable cause to find the light was green.
The judge conducting the preliminary hearing must take the evidence in the light most favorable to the government’s case.
Hearing Child Sexual Offenses. 14 year old child testifies that he was touched by defendant inappropriately. Mother, married to defendant, states defendant didn’t touch child inappropriately. The judge hearing the preliminary hearing cannot choose who to believe and must take the testimony that an inappropriate touching occurred and bind the defendant over on probable cause.
The weighing of the evidence is not the purpose or place for a preliminary hearing. That is what a jury trial is for, where the jurors are the ultimate deciders of fact or fiction.
Once you are bound over, you can challenge the probable cause bindover on an immediate interlocutory appeal, a direct appeal after your case is done, or through a motion to quash. All appeals of a judge’s decision to bind over your preliminary hearing are extremely hard to win. The legal standard on most appeals of your preliminary hearing loss are extremely deferential to the trial court. An Abuse of Discretion standard is used by reviewing appellate judges of trial court decisions to bind over your charges.
Utah Constitutional Grounds.
Utah’s preliminary hearing is grounded in the Utah Constitution. The provision is worth repeating here in full:
Utah Constitution. Article I. Declaration of Rights. Article I, Section 12 [Rights of accused persons.]
“In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel, to demand the nature and cause of the accusation, to have a copy thereof, to testify in the accused’s own behalf, to be confronted by the witnesses against the accused, to have compulsory process to compel the attendance of witnesses in the accused’s own behalf, to have a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, and the right to appeal in all cases. In no instance shall any accused person, before final judgment, be compelled to advance money or fees to secure the rights herein guaranteed. The accused shall not be compelled to give evidence against himself or herself; a person shall not be compelled to testify against the person’s spouse, nor shall any person be twice put in jeopardy for the same offense.
Where the defendant is otherwise entitled to a preliminary hearingination, the function of that hearingination is limited to determining whether probable cause exists unless otherwise provided by statute. Nothing in this constitution shall preclude the use of reliable hearsay evidence as defined by statute or rule in whole or in part at any preliminary hearingination to determine probable cause or at any pretrial proceeding with respect to release of the defendant if appropriate discovery is allowed as defined by statute or rule.”
Utah Code Ann. 78A-2-220(1)(e) states Utah magistrates have authority to conduct preliminary hearings to determine probable cause if a crime was committed.
You have the right to call your own witnesses, admit your own evidence and testify yourself at your preliminary hearing. Although, accused defendants almost never do. In 2021 there is a recent case law where the judge refused to allow the defense to subpoena and call child witnesses to testify at the preliminary hearing when a video at the child justice center was available.
Rarely does a criminal defendant testify at his own preliminary hearing. Usually this happens with defendants who are borderline incompetent. Ultimately it is the defendant’s right to testify at the preliminary hearing and no one else’s decision to make. No one can stop the defendant from testifying at the preliminary hearing.
The government always bears the burden at preliminary exams. Under the probable cause standard, the prosecution has the burden of producing believable evidence of all the elements of the crime charged, but this evidence does not need to be capable of supporting a finding of guilt beyond a reasonable doubt.
As the criminally accused, the defendant bears no burden in any fashion at the preliminary hearing.
Holding or not holding the preliminary exam can be debated endlessly for decades by criminal defense attorneys. The default position of most Utah criminal defense attorneys is it is presumed they are holding exam unless a good reason exists otherwise. The presumption is to hold the exam. Not waive it, although most preliminary hearings are waived.
Here are some basic reasons that most Utah criminal defense attorneys agree on when deciding to hold the preliminary hearing.
Forcing Complaining Witness To The Stand—If Possible.
When a Utah defendant decides to hold the exam, sometimes it forces the prosecution to show their hand, and produce live witnesses to testify at the probable cause hearing. Most of the time the police officers will show up and testify, whereas complaining fact or lay witnesses, non-police, will not testify live, but rely upon declarations under Utah Rule of Evidence 1102.
If you need to hold the preliminary exam, it is best to have live witnesses for many, many reasons. When live witnesses testify, you get a first look at the witness and can size them up. You can lock the witness down into testimony they will give at a jury trial. A live witness can be evaluated for evasiveness or cooperation, whereas as using a declaration, no such previews are available.
Utah R. Evid. 1102 Use At Prelim Hearings In Lieu Of Live Testimony.
Utah Rule of Evidence 1102 allows witnesses to avoid testifying and allows the state to rely upon their police witness declarations signed under penalty of perjury instead of live preliminary hearing testimony.
Utah Rule of Evidence 1102 reads:
Rule 1102. Reliable Hearsay in Criminal Preliminary Examinations.
(a) Statement of the Rule. Reliable hearsay is admissible at criminal preliminary examinations.
(b) Definition of Reliable Hearsay. For purposes of criminal preliminary examinations only, reliable hearsay includes:
(b)(1) hearsay evidence admissible at trial under the Utah Rules of Evidence;
(b)(2) hearsay evidence admissible at trial under Rule 804 of the Utah Rules of Evidence, regardless of the availability of the declarant at the preliminary examination;
(b)(3) evidence establishing the foundation for or the authenticity of any exhibit;
(b)(4) scientific, laboratory, or forensic reports and records;
(b)(5) medical and autopsy reports and records;
(b)(6) a statement of a non-testifying peace officer to a testifying peace officer;
(b)(7) a statement made by a child victim of physical abuse or a sexual offense which is recorded in accordance with Rule 15.5 of the Utah Rules of Criminal Procedure;
(b)(8) a statement of a declarant that is written, recorded, or transcribed verbatim which is:
(b)(8)(A) under oath or affirmation; or
(b)(8)(B) pursuant to a notification to the declarant that a false statement made therein is punishable; and
(b)(9) other hearsay evidence with similar indicia of reliability, regardless of admissibility at trial under Rules 803 and 804 of the Utah Rules of Evidence.
. . . .
Ordering The Preliminary Hearing Transcripts.
If you are going to go to the effort of conducting a preliminary hearing, you should generally incur the cost of ordering the transcript for use at the jury trial later on. Testimony transcripts are used to keep witnesses from going astray at the jury trial, impeaching witnesses with contradicting testimony, or guiding them in your cross-examination. Transcripts are very useful in cross-examination.
Using The Prelim Hearing to See What the Government Case Looks Like.
Prosecuting attorneys hate when defense attorney conduct preliminary hearings as discovery mechanisms because the purposes of the hearing is not a discovery tool, but to ferret out groundless charges. Ethically a defense attorney can’t solely use a preliminary hearing for discovery, but the defense can certainly see what the government has in their case.
Feeling Out Witnesses For Future Cross-Hearing.
Many criminal cases come down to the testimony of one witness and one witness only. Having a first look at that witness at the preliminary hearing is crucial to defense.
If You Know The Case Is Going To A Jury Trial, Always Hold The Preliminary Hearing.
Some criminal defendants from day one insist on holding the preliminary exam, or insist on holding a jury trial. When this occurs, you must always hold the preliminary hearing. Most serious felonies, the practice is to always hold the preliminary exam.
If you know it is a case where you are going to a jury trial ultimately, you should generally hold the preliminary hearing.
Exposing Weakness In The Government’s Case.
Sometimes the government’s case completely breaks down at the preliminary hearing. Mission accomplished in ferreting out bad cases. Sometimes holding the preliminary exam witnesses fail to show up and the case is dismissed.
Potential For Kicking Some Charges.
Other reasons to hold the preliminary exam is a chance to kick out certain bad charges. Sometimes on a multi-count charge, one charge may be extremely weak and the prosecutor just can’t prove it. Other times before the judge kicks the a weak charge, the prosecutor will stipulate to dismissing the charge.
