Colorado Preliminary Hearings Law And Practice – Part I of II – Strategy
by Colorado Criminal Defense Lawyer for Felony Criminal Defense – H Michael Steinberg
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.
The Right to a Preliminary Hearing
Shortly after the initial appearance, 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”). In Colorado – that right attaches to all felony charges IF you are in custody. If you are free on bond – that right attaches if you are charged with a class 1, 2, or 3 felony.
The hearing must be held within 30 days – unless you waive “the 30 day rule.”
The defendant has a Sixth Amendment right to the assistance of counsel at this preliminary hearing.
Distinguish From 48 Hour Review In Warrantless Arrest Case
While a preliminary hearing is not constitutionally required, the Fourth Amendment does entitle the defendant to some judicial review of probable cause, which could be non-adversarial, 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”).]
Right To Cross Examine At Preliminary Hearings
There is a statutory right to cross-examine the prosecution’s witnesses at the preliminary hearing.
Unless Indicted By A Colorado Grand Jury
If a charging grand jury is available, a prosecutor can preempt the preliminary hearing by obtaining a grand jury indictment within the time set for a preliminary hearing.
The Standard of Proof
In Colorado, the standard of proof at the preliminary hearing is probable cause.
What Happens Where The Evidence Is In Direct Conflict?
If testimony conflicts or the magistrate can draw any of several inferences, the Judge must accept the prosecution’s version.
The Arresting Officer
The word and recommendation of the arresting officer carry great weight with most judges.
The Right to Cross-Examination Closer Up
There is a right to cross-examine to test the plausibility of a witness’s story and his or her willingness to adhere to it on cross-examination. Judges allow some leeway in this regard because they recognize that an assessment of the victim or witness’s credibility is essential if they are to perform the “screening function” of the preliminary hearing in all of Colorado courts.
Judges, on the other hand, 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.
What Are The Goals and Objectives Of The Defense in Colorado Preliminary Hearings?
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 higher court to 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 Colorado criminal defense 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.
At A Preliminary Hearing A Lawyer Probably Should Not…
Expose defense theories that the prosecutor can investigate and refute.
Open defense witnesses, especially the defendant, to cross examination.
Also – and this is important… obtaining a dismissal may prove a Pyrrhic (poor) victory. Apprised of the weaknesses in his case, the prosecutor may improve it and then may refile the case or appeal the judge’s decision.
Using the Preliminary Hearing As An Opportunity For A Bail Reduction After The Hearing
Even if the defense presentation falls short of convincing a judge to dismiss a case or reduce the charges – by 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.
If you need legal representation for a preliminary hearing, retain the legal services of Colorado criminal lawyer H Michael Steinberg right now.