Informational Videos

Preliminary Hearing


I am asked this question all the time related to the importance of a preliminary hearing in a criminal case. From the defense standpoint, I believe that a preliminary hearing is extremely important and can be used to get cases dismissed, point out the weaknesses in the prosecutor’s case and lock witnesses into their statements under penalty of perjury. From a prosecutor’s position, they would probably say a preliminary hearing is not very important and they consider them just another proceeding in the case. Over the course of the past 25 years that I have been practicing criminal defense, I have seen many great things happen for my client’s before, during and after a preliminary hearing. Further, in my experience, only the best most seasoned criminal defense attorneys truly know how to effectively conduct a preliminary hearing for the benefit of their client’s case.

What is so great about a preliminary hearing is that the defense attorney gets a chance to test the strength of the prosecutor’s case and challenge their witnesses with what really happened in the case. Many times the police do a weak job of investigating all of the facts of the case and leave the prosecutors with a false sense of what really happened. This poor one-sided investigative approach is a criminal defense attorney’s best friend. I can not tell how many times I have blinded sided the prosecutor’s witnesses and made them look like a fool on the witness stand. And once the witness begins to be impeached and their credibility destroyed on the witness stand, under penalty of perjury, it is too late for the prosecutor to help them. All they can do is sit there and watch them self destruct. By the time they get to actually ask any questions, it is typically too late to revive their case, because the damage has already been done. If the defense attorney did it right, most of the time the damage is irreversible. I make sure that I cut the damage as deep as I can, once the weakness becomes apparent. I realize that the further down I can drag the witness, the better off my client will be in a trial or when it comes time to negotiate the case at a later date.


Because the prosecution has the burden of proof in any criminal case, they must call witnesses to the stand to prove their case. The goal for them is to prove to the judge (there is only a judge hearing all of the evidence at a preliminary hearing) that each element of each crime they have charged has been met. The prosecutor will call all of the witnesses first and ask them questions designed to get the facts in they need to prove each charge. After the prosecutor asks each witness questions, then the defense attorney will get an opportunity to ask each witness their questions as well. Once the prosecutor is done with calling all of their witnesses and introducing what ever exhibits they have that prove the case, then the defense has the option of presenting all affirmative defense evidence they have related to the case. If the defense calls any witnesses, then the prosecutor will get the chance to ask them any appropriate questions as well. Once the defense has decided whether to call any witnesses or not, the defense can then argue that the prosecutor did not present sufficient evidence to hold over the defendant for a criminal trial.

The standard of proof necessary at a preliminary hearing in a criminal case in Los Angeles County is whether the prosecutors have proven their case by “a reasonable suspicion” that the defendant committed all of the crimes he or she is charged with. The burden of proof is with the prosecutor because the defendant is presumed innocent. This is not a very high standard of proof, so it is difficult to convince the judge to dismiss a case after a preliminary hearing. However, as indicated above, a skilled defense attorney can definitely use this forum to do some serious damage to the prosecutor’s case and set his or her client up for success. Another strategy related to a prelim is to lock witnesses into their testimony and then go and investigate to see if you can find evidence to impeach them at a future trial. Not everything is the same in every criminal case. If you have a matter pending, your best bet is to seek the advice of a seasoned professional. Contact us today!