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If you are being charged with a crime and will be having a preliminary there are many laws and regulations which deal with preliminary hearings.  Many times people are concerned with only the timing issues of a preliminary hearing.  In other words will I get my preliminary hearing within 10 court days or 60 calendar days of my arraignment, plea of not guilty or reinstatement of ciminal proceedings after competency finding.  We will adrress those issues later but lets start with what a preliminary hearing is, what evidence is allowed and the timing issues.  

 

INTRODUCTION

The primary purpose of the preliminary hearing is governed by Penal Code section 859 B.  and this section effectively provides the defendant with the right to a speedy preliminary hearing.  

PRELIMINARY HEARING BASICS

Usually a Felony case begins with a prosecutor filing a criminal compaint or a grand jury indictment,.  If a complaint is filed, a preliminary hearing is to determine if there is a sufficient or probable cause to hold the defendant to answer for trial.  If the Judge does not find sufficient or probable cause then the complaint should be dismissed.  The court may also reduce the Felony to a Misdemeanor per Penal Code section 17b.  

There is also a right to  a continious in one session preliminary hearing the preliminary hearing is in one continious hearing.  With no substantial breaks in between this can be waived by the defendant.  

The preliminary hearing is an evidentiary hearing. And the prosecution has the burden of showing of facts sufficient that would lead a reasonable person of ordinary caution to have a strong suspicion of the persons guilt. 

WHAT EVIDENCE IS ALLOWED AT A PRELIMARY HEARING

Unique to a preliminary hearing is the fact that hearsay from a qualified police offcer with five years of experience or who testifies to his training at the police academy can be allowed.  This type of hearsay would not be allowed at a trial.  This is what is commonly referred to as prop 115 evidene, referring to the propposition passed by voters in 1990. 

WHAT EVIDENCE MAY THE DEFENSE PRESENT AT THE PRELIMINARY HEARING

The defense has a right to call witnesses to establish an affrimative defense such as self defense. 

Negate an element of a crime such as an accident defense in an specific intent crime. 

Impeach testimony of a prosecutorial witness

or bring in there own law enforcement witness who can then bring in exculpatory hearsay. 

TIME LIMITATIONS 10 COURT DAY AND 60 COURT DAY RULES

10 DAY RULE

Under Penal Code section the defendant has a right to a preliminary hearing within 10 Court days of arraignment or plea of not guilt whichever occurs later.  

IN CUSTODY RULE

There must be a preliminary hearing within 10 court day or the complaint dismissed the prosecution may refile once.  And if the defendant is in custody on other cases than it is not applicable and the complaint will not be dismissed. The prosecution can establish good cause a necessary witness is unavailable or sickness so forth. 

60 DAY RULE

A  good way to think of the 60 day rule is apart and seperate from the 10 day rule.  The 60 day rule is not limited to in custody defendants.  The 60 day rule also utulizes calendar days rather than court days and again applies to both in custody and out of custody accused.  The only exception to the 60 day rule is if the defendant personally waives the 60 day rule with a time waiver.  The 60 day rule prevents postponing the preliminary hearing  even if the magistrate finds good cause for the delay.  

If you or a a loved one needs help we can get you through this.  call 559441-1418. 

 

 

 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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