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Legal Elements of Common Crimes. Expungement and Criminal Records. Should I just plead guilty and avoid a trial? Is the public defender a real lawyer? Can I change defense lawyers after I've hired one? How long after arrest do I find out what the charges are? See All Common Questions. With the defendant's consent and upon a showing of good cause—taking into account the public interest in the prompt disposition of criminal cases—a magistrate judge may extend the time limits in Rule 5.
If the defendant does not consent, the magistrate judge may extend the time limits only on a showing that extraordinary circumstances exist and justice requires the delay. At the preliminary hearing, the defendant may cross-examine adverse witnesses and may introduce evidence but may not object to evidence on the ground that it was unlawfully acquired. If the magistrate judge finds probable cause to believe an offense has been committed and the defendant committed it, the magistrate judge must promptly require the defendant to appear for further proceedings.
If the magistrate judge finds no probable cause to believe an offense has been committed or the defendant committed it, the magistrate judge must dismiss the complaint and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offense.
The preliminary hearing must be recorded by a court reporter or by a suitable recording device. A recording of the proceeding may be made available to any party upon request. A copy of the recording and a transcript may be provided to any party upon request and upon any payment required by applicable Judicial Conference regulations.
Rule If a party disobeys a Rule Added Apr. Giving state or local judicial officers authority to conduct a preliminary examination does not seem necessary. See C. Cipes , Supp. Clemmer , F. Sirica , F. United States , F. A grand jury indictment may properly be based upon hearsay evidence.
Costello v. United States , U. This being so, there is practical advantage in making the evidentiary requirements for the preliminary examination as flexible as they are for the grand jury. Otherwise there will be increased pressure upon United States Attorneys to abandon the preliminary examination in favor of the grand jury indictment. New York State, which also utilizes both the preliminary examination and the grand jury, has under consideration a new Code of Criminal Procedure which would allow the use of hearsay at the preliminary examination.
For the same reason, subdivision a also provides that the preliminary examination is not the proper place to raise the issue of illegally obtained evidence. This is current law. In Giordenello v. That issue was for the trial court. Dicta in Costello v. In order for the court to continue holding a felony defendant in custody, the court must conduct the preliminary hearing within the amount of time prescribed by state law and issue a formal charging instrument, sometimes referred to as a "criminal information.
If the defendant has been released on bail or "own recognizance" "OR" , the court can conduct the preliminary hearing at a later time. However, the preliminary hearing must occur within a reasonable time after arrest. An unreasonable delay violates the defendant's federal constitutional sixth amendment right to a speedy trial. If a defendant is arrested or charged in a criminal complaint and the prosecutor's office or the court does not schedule the preliminary hearing until months or years later, the case can be dismissed because of the delay.
The judge must review the circumstances of the delay and determine whether the delay was unreasonable and, therefore, violated the defendant's constitutional right to speedy trial. A preliminary hearing is somewhat like a mini trial. The prosecution can call witnesses to testify and present physical evidence or documents and records evidence to show the defendant likely committed the crime.
A preliminary hearing usually is not as exhaustive as a criminal trial and the prosecution likely will not present all its evidence against the defendant -- just enough to establish probable cause. The rules regarding what kind of evidence can be presented may be more relaxed than at a trial--for instance, hearsay may be permitted. This means that a police officer can testify about what witnesses told him during interviews and the prosecutor will not be required to have those witnesses testify at the hearing.
How courts conduct preliminary hearings and what occurs in each hearing varies with each state's laws and its state constitution. A defendant is entitled to have an attorney represent them at a preliminary hearing. If the defendant requests an attorney, the court cannot conduct the hearing without ensuring that the defendant has private counsel or appointing an attorney—such as a public defender—to represent the defendant.
The defense attorney can advise the defendant of his rights, make arguments to the court about whether the evidence is sufficient to support formal charges against the defendant, and present evidence on the defendant's behalf. The prosecutor must show that enough evidence exists to charge the defendant.
Preliminary hearings are not always required, and the defendant can choose to waive it. It must be held within 14 days of the initial appearance if the defendant is being held in jail. If the defendant is out on bail, it must be scheduled within 21 days of the initial appearance.
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