A preliminary hearing is where a magistrate weeds out cases in which there is not enough evidence to hold the case over for trial. Different jurisdictions have different standards of proof at preliminary hearings. The prosecution may have to establish "probable cause" or a "prima facie" case, which is more stringent than probable cause. If there is contradictory evidence or the evidence can lead to different conclusions, the magistrate must adopt the prosecution's account.
The Arresting Officer
Most magistrates are heavily influenced by the arresting officer's testimony. Therefore, prior to the hearing, your Sugar Land criminal attorney should try to talk to the arresting officer and explain your side of the case. If the officer has reservations about the witnesses' credibility or the merits of the case, the officer may be willing to help you. In fact, the officer might agree to disclose evidence that questions the victim's credibility (for example, the victim was under the influence when he reported the crime) or agree to talk to the victim about dismissing the charges and accepting restitution. In addition, the officer may caution your attorney about dangers regarding certain areas of examination.
On the other hand, the officer may try to get your attorney to forgo the preliminary hearing and send the case directly to trial. The officer might think the evidence is flimsy or might just want to get out of wasting hours at the courthouse waiting for the judge to hear the case. Regardless, it is usually a bad idea to forgo the hearing.
Don't worry about upsetting the officer. The officer cannot harm you any more than he or she already did by arresting you and filing the complaint in the first place. If the officer is annoyed because your attorney won't waive the hearing, your case will not be any worse off.
You have the right to cross-examine witnesses to test the credibility of their testimony.
Magistrates generally allow some cross-examination during preliminary hearings, particularly so that they can weed out the weakest cases. But they will not allow extensive cross-examination meant to demonstrate a witness's general lack of credibility, such as questions regarding the witness's predispositions, criminal history, or deceitfulness. These issues don't help much at preliminary hearings, and by asking about them you're giving the witness a sneak peak at what your Sugar Land criminal attorney should surprise them with at trial.
If you or someone you love has been arrested, contact dedicated Sugar Land criminal attorney John Venza for a free initial consultation.