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