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Charged With a Felony What Happens Now? – Part Three

Posted by Anthony Bretz | May 05, 2020 | 0 Comments

This is Part Three of an ongoing series of Blog Posts, Charged with a Felony What Happens Now? You can find Part One here and Part Two here. Each part will tackle a different aspect of a felony criminal case from the arrest and complaint to sentencing. Each post is designed to give an explanation of that post's topic, to be used in conjunction with the entire series.

Previously, I went over some of the background information involved with the filing of felony charges, including the different manners in which a Prosecutor can begin a case, whether it be by way of a felony Complaint or through the Grand Jury with an Indictment. I also discussed the Arrest, Bond and Arraignment portions of felony cases.

In this post I will be discussing the Preliminary Hearing, what it is, what it involves and what it means for your felony case. A Preliminary Hearing is a right of the criminally accused who have been charged by way of a felony Complaint. As with any right of a Defendant's, it can either be enforced, in this case by having a Preliminary Hearing held, or waived.

The Preliminary Hearing

What is a Preliminary Hearing?

At the Preliminary Hearing the Defendant has the opportunity to make the State show that they have enough evidence to proceed to the trial court. If the State cannot do this, then the case will be dismissed by the Court. A Preliminary Hearing is only available to the Defendant in an Associate Circuit Court for any felony charges which were initiated by the Prosecuting Attorney's office filing a felony Complaint. 

The Preliminary Hearing is essentially a mini-trial in which the State presents just enough evidence to the Court in its attempt to show that there is sufficient evidence for Probable Cause and that the matter should be bound over to the trial level. Probable Cause is a legal term of art which means that there is enough evidence to believe that the Defendant committed the crime which the State is alleging she committed in its Complaint.

"Probable cause...simply means a knowledge of facts and circumstances sufficient for a prudent person to believe the suspect is committing or has committed [an] offense." State v. Carrawell, 481 SW 3d 833 (Mo. banc 2016) (citing State v. Heitman, 589 S.W.2d 249, 253 (Mo. banc 1979)).

The State's burden at a Preliminary Hearing is much lower than at trial. In a criminal trial, the State is obligated to prove Beyond a Reasonable Doubt that the Defendant is guilty of each element of each count. Furthermore, at a trial all of the jurors must agree that the State's burden has been met with respect to each element of each count; otherwise the State has failed to meet its burden on any count where there was not a unanimous agreement among the jury.

Whereas Beyond a Reasonable Doubt is the highest obstacle a party must overcome in criminal court, Probable Cause is the second easiest obstacle. You can think of Probable Cause as a 3-inch hurdle off the ground; it is very easy for the state to meet this burden.

You can think of Probable Cause as a 3-inch hurdle off the ground; it is very easy for the state to meet this burden.

What does a Preliminary Hearing Involve?

As mentioned earlier, a Preliminary Hearing is a mini-trial where the State has to put on enough evidence to convince the Associate Circuit Judge that Probable Cause has been met. Evidence is its own detailed area of the law and can encompass many types that courts may consider; but for our purpose it is enough to focus on just two overarching forms: physical evidence or testimonial evidence.

Physical evidence means something you can physically hold or something you can view, such as a gun or a security tape at a convenience store. Testimonial evidence is simply another way of describing the words witnesses use on the stand. Anything a witness says is testimonial evidence. Neither type of evidence is considered more important than the other.

The State will proceed to put on its evidence by calling their witnesses to the stand, in a criminal case this will usually involve the victim of the crime, if available, the investigating officer and maybe a witness. The Prosecutor does not need to call all of their witnesses which they will use at a trial, just enough to show they have met Probable Cause. The Prosecutor will then proceed to ask the witnesses questions and in the process their questions being answered the Prosecutor will have an opportunity to have the witness discuss any physical evidence that the State may have.  In this way, the State is able to present their evidence to the Court. Defense counsel will also make proper objections throughout the State's presentation in order to limit what evidence the Court will consider.

After the State has finished its questioning of a witness, a criminal defense attorney representing the Defendant will then have the opportunity to cross-examine the witness. After which, defense counsel will request that the Court dismiss the case for the State's failure to show Probable Cause. If the Court agrees, then the case is dismissed; otherwise, the case will be bound over to the Circuit Court level, i.e. the trial court. 

As a criminally accused defendant, you are not required to put forth any evidence on your own behalf. This is because the criminal justice system does not place the burden on the defendant but on the State. You also do not have to testify. You can simply sit there and do nothing and if the State cannot meet its burden, then the case will be dismissed. Though a possibility, it is still highly unlikely that you can have a case dismissed without cross-examining the State's witnesses and challenging the State's evidence.

If the State loses a Preliminary Hearing and the Court dismisses the case, the State can still refile the charges through the Grand Jury if there is one in their Circuit. So just because you may have won your Preliminary Hearing it does not necessarily mean that you will not have to face those charges again later on. This is not a violation of the Constitutional right against Double Jeopardy. Double Jeopardy only applies after a case has been bound over to the trial court, a jury has been selected, seat and sworn in. 

What does a Preliminary Hearing mean for me?

The Preliminary Hearing is an important aspect of any criminal defense strategy, as it often is the first time that the defendant and his attorney will see or hear any of the State's strategy for prosecuting the charge. The Preliminary Hearing provides the defendant with the opportunity to assess how well the State's witnesses come off on the stand, i.e. do they emit a air of trustworthiness and honesty, as well as how well the State's theory of the crime holds up under cross-examination. 

Once a motion or written request for discovery is made by the defendant, the State is obligated to release to the defendant any evidence it may have in its possession which relates to the defendant's charge. Many Prosecuting Attorney's offices will disclose their evidence to the defendant at or shortly after the initial court appearance without a written request in order to convince the defendant to waive his right to the Preliminary Hearing as part of plea negotiations. If a defendant waives his right to the Preliminary Hearing, then the case is automatically bound over to the trial court and the defendant loses his opportunity to have the case dismissed for lack of probable cause.

Often times, a skilled criminal defense attorney like Anthony Bretz is able to identify weak points in the State's case because of the Preliminary Hearing. These weaknesses can then be used to enhance the defense strategies for use during the next phases of the case. A skilled defense attorney can also highlight these weak points, apply pressure, and negotiate better terms for their client than they would otherwise have been able to do without a Preliminary Hearing.

It is important to know that when you find yourself named as a Defendant in a felony case, you need to speak with an experienced and skilled criminal defense attorney immediately. If you wait too long, you may wind up waiving important rights like a Preliminary Hearing. Don't put yourself behind the Eight Ball. Call Anthony Bretz right away and I will make sure you understand everything about your case each step along the way. Remember, you are innocent until proven guilty, and you don't have to do this alone.

*The choice of a lawyer is an important decision and should not be based solely upon advertisements.

About the Author

Anthony Bretz

Anthony S. Bretz is an experienced and dedicated trial attorney specializing in DWI, DUI, Criminal Defense and Employment Discrimination cases. A St. Louis native, he went to McCluer North High School in Florissant where he played football and wrestled. After graduating in 2000, he attended Truman State ...

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