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CHAPTER 7: SELECTED CRIMINAL PROCEDURES - Table of Contents

7.1 - Preliminary Hearings7.2 - Pretrial Conferences7.3 - Pretrial Motions Processs7.4 - Use of Statements7.5 - Use of Seized Evidence7.6 - Eyewitness Identification Procedures7.7 - Interlocutory Appeals7.8 - Sentencing7.9 - Boulder Integrated Treatment Court

7.1 PRELIMINARY HEARINGS

THE RIGHT TO A HEARING

The Fourth Amendment to the United States Constitution requires a timely judicial determination of probable cause as a prerequisite to holding a person in custody following a warrantless arrest. "Timely" in this context means forty-eight hours, according to the Riverside decision of the United States Supreme Court. There is no constitutional right to a full-scale probable cause hearing with the right to counsel, confrontation, cross-examination, and compulsory process of witnesses.

Instead, the probable cause determination required by the Fourth Amendment can be satisfied by the use of informal, non-adversarial procedures similar to those used prior to the issuance of an arrest warrant. Each state is allowed to develop pretrial procedures that provide defendants in pretrial custody with a fair and reliable determination of probable cause for continued detention.

In Colorado, the duty judge will review police reports at the first appearance of the defendant and determine whether probable cause exists to continue to hold the defendant in custody. In addition, in many felony cases, the defendant has a statutory right to a preliminary hearing. The formal definition of a preliminary hearing is found at C.R.S. 16-5-104(14).

A defendant who desires a preliminary hearing must make a request. The request need not be in writing; however, the request must be made within 10 days after the defendant's first appearance in county court or before plea in district court. A defendant who is charged by grand jury indictment is not entitled to a preliminary hearing.

Only certain defendants are entitled to a preliminary hearing. Defendants so entitled are those who are: (1) charged with class 1, 2 or 3 felonies; (2) charged with class 4, 5 or 6 felonies which are crimes of violence or sexual offenses; and (3) charged with a class 4, 5, or 6 felony and remain in custody, unable to bond out of jail. Defendants who are charged with other felonies are not entitled to preliminary hearings; instead, these cases are set for dispositional hearings, which are essentially meetings between the prosecutor and defense counsel to determine whether the case can be settled through negotiation. See C.R.S. 16-5-301 and 18-1-404, and Crim. P. 5(a)(4) & (5) and 7(h).

A failure to make a request for, or a failure to appear at, a preliminary hearing is deemed to be a waiver of the preliminary hearing, and the case will be bound over for trial. Failure to object to a setting beyond the 30-day time limit within which the hearing must normally be set is deemed a waiver of the statutory right to have the preliminary hearing within that time period.

PURPOSE AND SCOPE OF THE HEARING

The preliminary hearing is a screening device to afford the defendant an opportunity to challenge the sufficiency of the prosecution's evidence to establish probable cause before an impartial judge. As a screening device, the preliminary hearing is designed to weed out groundless or unsupported charges and insures that the prosecution can at least sustain the burden of proving probable cause. It protects the accused by avoiding an embarrassing, costly and unnecessary trial and it benefits the interests of judicial economy and efficiency. At a preliminary hearing, the prosecution has the burden of presenting enough evidence to the judge to establish to the satisfaction of the judge that there is probable cause to believe the defendant committed the crime. Probable cause is established when the evidence is sufficient to induce a person of ordinary prudence and caution conscientiously to entertain a reasonable belief that the defendant may have committed the crime charged. If the court is satisfied that probable cause exists, the court will bind over the case for arraignment. If the court is not persuaded that probable cause exists, the court will dismiss the case.

CONDUCT OF THE HEARING

The rules of evidence are relaxed at a preliminary hearing. The Colorado Rules of Evidence provide that the rules, except for the rules relating to privilege, do not apply at preliminary hearings. Hearsay evidence, conclusions and other evidence, which might not be admissible if offered at trial, may well be the bulk of the evidence at the preliminary hearing.

Certainly, in most cases, the prosecutor is better able to establish probable cause by calling the victim to testify at the preliminary hearing. But the prosecutor does not always have the victim testify. The victim may not be available or interested in a courtroom confrontation. In some cases, the victim may not have seen critical events. The prosecutor is only required to call a perceiving witness, i.e. any person(s) who has direct perception of the corpus delecti constituting the crime charged and the defendant as the perpetrator.

The prosecution does not meet its burden of establishing probable cause by introducing evidence solely from a non-perceiving witness who relates second-hand information. The evidence presented must have some semblance of a factual foundation and must show probable cause. The process is best served when at least one witness is called whose direct perception of the criminal episode is subject to evaluation by the judge.

The evidence presented must be viewed in the light most favorable to the prosecution. If testimony conflicts, the trial court must draw an inference in favor of the prosecution. If more than one inference can be drawn from a particular piece of evidence, the court must draw the inference that is most favorable to the prosecution.

A judge has jurisdiction to consider the credibility of preliminary hearing witnesses only when as a matter of law the testimony is implausible or incredible. When there is a mere conflict in the testimony, a question of fact exists for the jury and the judge must draw the inferences favorable to the prosecution. A trial court commits reversible error when it resolved inferences arising from conflicting testimony in a preliminary hearing in the defendant's favor.

The preliminary hearing is a crucial stage of the prosecution; therefore, the defendant has the right to assistance of counsel. The defendant has the right to cross-examine the witnesses called to testify against him and the right to introduce evidence on his own behalf. The court may not curtail cross-examination of a witness on testimony that is vital to the issue of probable cause.

When an eyewitness is available in court during a preliminary hearing, and when the prosecution is relying almost completely on hearsay testimony, it may be an abuse of discretion to prohibit the defense from calling the witness. An indigent defendant has the right to a free transcript of the preliminary hearing before trial in order to prepare an effective defense. The defendant is entitled to limited discovery prior to the preliminary hearing. As a practical matter in Boulder, the prosecution provides all available discovery to the defendant.

DISMISSAL OR BIND-OVER OF CHARGES

At the conclusion of the hearing, the judge must either dismiss the charge or bind the charge over for trial. If the court does not find probable cause with respect to an offense charged, the court still may bind the case over for trial on any lesser included offenses supported by the evidence. An order denying dismissal of the charge after preliminary hearing is final and subject to review on appeal. Re-filing of a charge that has been dismissed after a preliminary hearing is permitted only after a judge holds a hearing and finds 1) additional evidence exists and 2) the prosecutor has good cause why the evidence was not presented at the prior preliminary hearing.

In cases charged by felony complaint, the preliminary hearing will be conducted in county court rather than district court. If the county court dismisses the complaint after holding a preliminary hearing, the prosecutor, with consent of the district court, may re-file the same charge in district court upon a direct information. The defendant then would be entitled to a new preliminary hearing in district court. Filing a direct information in district court is the exclusive remedy available to the prosecution when the county court has determined a charge after a preliminary hearing in county court.

Re-filing in district court is not automatic, however. The prosecutor must obtain the permission of the district court. When seeking to re-file charges upon a direct information, there must be sufficient evidentiary disclosure made to the district court to determine if re-filing is warranted. The district court is required to balance the right of the district attorney to prosecute criminal cases against the needs to protect the accused from discrimination and oppression.

When the preliminary hearing is waived in reliance on a plea agreement, the court should enforce that agreement. However, if no agreement has been finalized, and the tentative agreement falls through, the waiver will likely be held valid.

If a case is bound over after a preliminary hearing, or if the preliminary hearing is waived, the case is set for arraignment. Arraignment is the hearing at which a plea is formally entered. In felony cases, arraignment takes place in district court. If a plea agreement has been reached it can be presented to the court at this time. If no agreement has been reached, the case will be set for trial.

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