I. PRELIMINARY HEARINGS ARE NECESSITIES WITH FEW EXCEPTIONS (SEE SECTION III)
(A) Civil cases provide opportunity for discovery through depositions, requests for admissions and interrogatories.
(B) Criminal trials are still trials by ambush. A Preliminary Hearing is the only meaningful discovery weapon for success in a future jury trial.
(C) A citizen accused is entitled to a Preliminary Hearing if a written demand is made within thirty (30) days of arrest and prior to indictment.
(D) Preliminary Hearings are the single most powerful weapons to win a jury trial.
II. PURPOSES AND GOALS OF PRELIMINARY HEARING
(A) Discover facts of State's case.
(B) Discover strengths and weaknesses in State's case, witnesses, and proof.
(C) Evaluation of quality of State's witnesses.
(D) Allow State witnesses to expand on inaccuracies, misleading or fabricated stories.
(E) Get State witnesses to commit to specific details - pin and lock witnesses down.
(F) Expose biases of witnesses. Occasionally obtain dismissal or reduction of charges.
(1) State may put back on Grand Jury if case dismissed.
(G) Discover State's theories through questions asked by the Prosecutor.
(H) To make a record for later impeachment.
(I) Have court reporter declared official reporter.
III. CONSIDERATIONS AS TO WAIVER OF HEARING
(A) Waiver may be appropriate if you know case must be settled and can be settled.
(B) Always get something if case is waived:
(1) Documents, police reports, witness statements, supplemental reports.
(2) On occasion, take taped statement of witnesses without formal hearing.
(3) Bail consideration.
(4) No new charges, etc.
(C) Be cautious before waiving a case that will be tried.
(D) Waiver may be appropriate if old, sick witnesses, or who may otherwise be unavailable at trial.
(1) State may be allowed to read testimony at trial if witness unavailable but subject to cross examination at Preliminary Hearing.
(E) Waiver may be appropriate if Judge will hear evidence that prompts him or her to raise bail.
IV. EXTRA BENEFITS TO CAPTURE AT HEARING
(A) If witness refreshes recollection with document, it is discoverable at Preliminary Hearing.
(B) If evidence bears on credibility of witness, it may be admitted at Preliminary Hearing.
(C) Witness may authenticate your evidence at Preliminary Hearing (photographs, handwriting, etc.)
(D) Witness can create and authenticate diagrams to be used at trial.
(E) Make use of hearsay rule to offensively
(1) Cross-examination re: statements taken - ARE 5.3 (c)
(F) Discover information about other individuals not present at Preliminary Hearing.
V. MISCELLANEOUS CONSIDERATIONS
(A) Motions to file at Preliminary Hearing
(1) Discovery Motion - debate as to whether Rule 16 applies in District Court at Preliminary Hearings.
(2) Demand for Preliminary Hearings - when appropriate.
(3) AKE Motions for experts, investigators, court reporters, etc. (See attached Exhibit C - sample motions.)
(B) Use of subpoenas at Preliminary Hearing
(1) The law now allows subpoenas to be served similarly to civil subpoenas.
(2) Do STD's for certain documents including medical records, court documents, certain documents in the possession of law enforcement, etc.
(C) Put on witnesses or Defendant rarely, if ever, at Preliminary Hearing.
(1) If court reporter, there will be preservation of testimony.
(2) Strategic decision as this may be the only way to defeat probable cause.
VI. APPLICABLE LAW AT PRELIMINARY HEARING
(A) Definition of probable cause: An offense was committed and reasonable grounds to believe that the accused committed it. Tice v. State, 386 So.2d 180 (Ala.Cr.App. 1980.)
(B) Review Rule 5 of the Alabama Rules of Criminal Procedure. (See attached photocopies of Rules 5.1, 5.2 and 5.3.)
(C) Motions to Suppress not litigated at probable cause hearing.
(D) Some jurisdictions allow felony pleas in District Court without giving notice.
VII. CONSIDERATION OF PRACTICING IN MUNICIPAL COURT
(A) File Discovery Motions.
(B) Obtain copy of warrant and affidavits.
(C) Subpoena witnesses.
(D) If going to appeal:
(1) Conduct hearing like Preliminary Hearing.
(2) Be prepared to make an appeal bond (have sureties ready.)
(3) Always demand jury trial in writing if case is appealed; otherwise, it is waived.
(4) A citizen cannot be charged in Municipal Court and in State Court for crimes arising out of the same incident.
(a) A plea in Municipal Court would bar by double jeopardy further action in State Court.
(E) Stipulations of fact and appeal.
(F) Often cases can be settled after witnesses are subpoenaed for trial.