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Introduction – If you are told you have a right to a preliminary hearing in a Colorado felony case – you need to understand how and why preliminary hearings are important to your case. This article analyzes the Colorado right to a preliminary hearing and how it works… Part II.
Even if funds are available for investigation, witnesses are often difficult to find and reluctant to be interviewed. Prosecutors 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.
• 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.
Commit the prosecution’s witnesses to a sworn version of events that cannot be changed at trial.
To obtain a favorable concession or even a version of events that is not as harmful as other possibilities, the lawyer should 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.
A preliminary hearing is not a civil deposition. Although there is some leeway to probe, itis severely limited.
Therefore, the Colorado criminal defense 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 lawyer in a new way – to explore a different theory.
While a Defendant may want the charges exposed as false, immediately…. the Defendant must understand that:
• A preliminary hearing is not a trial.
• Many issues that are foremost with the defendant (e.g., the victim’s penchant for lying, the officer’s abusiveness) do not matter at all to the judge at the preliminary hearing.
• 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.
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 defense lawyer can understand and direct this testimony through questions only if the criminal defense lawyer has viewed and paced the scene.
Defense witnesses can:
• Steer the criminal defense lawyer toward the successful defense and away from the fruitless.
• Assist in disabusing the defendant of an improbable story.
• Alert the criminal defense lawyer to concessions prosecution witnesses are likely to make.
Such interviews serve to develop the defense theory that should be pursued at the hearing.
The criminal defense 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 defense lawyer’s 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 defense 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.
• It will not affect the bind-over decision. The judge will always 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.
• 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 defense 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 defense 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 defense lawyer may want to conduct the impeachment at the hearing. On the other hand, the criminal defense 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 defense 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.
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 Colorado where typically only agents and officers testify, and the testimony consists of hearsay and multiple hearsay.
However, even there the hearing provides some discovery.
The Defendant may tend to waive the hearing in these situations:
• 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.
• 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 defense 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.
Putting the prosecutor’s representations on the record arms the criminal defense lawyer with some bargaining leverage to persuade the prosecutor or her superiors that seeking higher charges would undermine their office’s credibility.
The criminal defense lawyer may call witnesses, including the defendant, at the preliminary hearing.
However, the criminal defense 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 defense lawyerr 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.
Calling prosecution witnesses in the criminal defense lawyerr 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.
If the criminal defense lawyer have not interviewed the witness, the criminal defense 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 defense 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 defense lawyer call the witness on direct, the criminal defense 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 defense 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, 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.
*If you need legal representation for a preliminary hearing, retain the legal services of Colorado criminal lawyer H Michael Steinberg right now.