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Policy Statements- Use of Hearsay Evidence at Preliminary Examination

California Attorneys for Criminal Justice supports preservation of the current preliminary examination process in felony prosecutions. Admissibility of hearsay evidence at the preliminary examination should be subject to the same legal standards applicable to trials and other evidentiary proceedings.

The preliminary hearing is a critical stage of felony criminal prosecution at which a "...skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial." Coleman v. Alabama (1970) 399 U.S. 1, 9-10.

Every year in California, hundreds of persons are not held to answer for trial following a preliminary hearing at which witnesses are subject to cross-examination. Elimination of the opportunity to confront and cross-examine witnesses would result in the unnecessary incarceration of such persons, who would otherwise be discharged from custody and relieved of the emotional trauma and expense of preparing for trial. For example, the inability to identify the defendant as the perpetrator of an alleged offense may prevent the injustice of an innocent person's pre-trial incarceration.

Examination of witnesses enhances the ability of both the prosecution and the defense to evaluate the quality of a case. The process frequently provides otherwise unavailable information which is useful to both sides in determining whether a case should be terminated at an early stage of the proceedings. Information obtained through examination may prevent the unjustifiable expenditure of public funds in the prosecution of weak cases which may have "looked good on paper." The preliminary hearing provides a check on the potential abuse of prosecutorial discretion, to ensure that such cases are not brought directly to trial, but rather weeded out or pared down in advance.

Relaxed rules of evidence, including, the substitution of oral and written hearsay in place of testimony by percipient witnesses has been proposed for the ostensible goal of judicial economy, but it is likely that a substantial financial burden would be shifted to the superior court. Many more defendants are likely to insist upon their right to confront at trial those witnesses who were absent from the earlier proceedings. The experience of the federal courts, which is advanced as a model by proponents for the expanded use of hearsay, is instructive. Approximately 20 percent of felony cases filed in the United States district courts proceed to trial in contrast with about five percent of such cases file in California superior courts, which could not absorb a comparable increase.

If the value of the preliminary hearing were eroded, the persons most directly affected would include those who were truly innocent such as an individual mistakenly identified as the perpetrator of a crime. It would also reduce the likelihood of prompt resolutions of criminal matters which benefit both the parties and the administration of criminal justice.

--drafted by George Eskin

FORUM, JANUARY/FEBRUARY 1988, Vol.15, No.1

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