E. The Preliminary Hearing

John Doe has been arrested for armed robbery of an FDIC insured bank in the state of California based on a warrant and complaint that was issued out of the state of Georgia. He cannot afford to hire his own attorney and counsel is appointed by the Court to represent him.  After the booking procedure, he is brought before a magistrate in the district where he was arrested. He is then provided with a copy of the charges against him and advised by the magistrate of the nature of the proceedings, his right to counsel, and his right to remain silent. Because he has been interviewed by a pre-trial services officer previously, the magistrate had tentatively appointed counsel to represent the defendant during the initial appearance. The defendant is asked to affirm for the magistrate his need for court-appointed counsel. He is questioned again, under oath, regarding his ability to hire an attorney. Counsel’s previous appointment is reaffirmed.

Bail is next discussed and the Government moves for a detention hearing pursuant to 18 U.S.C. §3142(f). The Government then moves for a three day continuance in order to prepare for the detention hearing so as to secure the attendance of certain witnesses it wishes to call on the detention issue. This motion is granted. Now the defendant’s attorney is asked whether the defendant desires a preliminary hearing on the charges. An affirmative response is given. In that the defendant is effectively being held without bond because of the request for the detention hearing by the Government, the magistrate tentatively schedules the preliminary hearing within ten days of the initial appearance. The magistrate advises both sides, however, that the date is subject to being reset should the defendant be ordered released after the detention hearing. The question arises: Will the preliminary hearing be held as scheduled? If so, what kind of hearing will it be?

In the federal criminal system, preliminary hearings are rarely held. The reason for this is simply stated: defendants who are arrested are usually indicted shortly thereafter. Under 18 U.S.C. §3161(b), if a defendant is not indicted within thirty days of his arrest, the charge against him must be dismissed.  However, if the defendant is charged with a felony, and there has not been a grand jury in session in that district in the last thirty days, the time period will be extended an additional thirty days.  The provision of the Speedy Trial Act protects defendants from being held on charges for an undue period of time. The merits of the case are considered by an impartial grand jury. Because cases must be presented to a grand jury within thirty days to prevent their dismissal, a Government prosecutor, where possible, will usually indict the arrested defendant prior to the preliminary hearing.

All federal prosecutors realize that if they do not present to and obtain an indictment from a grand jury prior to the date scheduled for a preliminary hearing, they will have to prepare for and present evidence during a preliminary hearing held pursuant to Rule 5.1 of the Federal Rules of Criminal Procedure.  Since the evidence that might be offered during such a hearing will be practically identical to the evidence the prosecutor will usually present to a grand jury, if possible, an indictment will be obtained prior to the hearing.  The indictment must be obtained within thirty days in any event subject to the one caveat mentioned above. To avoid duplication of effort and expense, and for strategic reasons, federal prosecutors try to avoid preliminary hearings. In the usual case, therefore, after the initial appearance, the defendant will be indicted.

It is not always possible for the prosecutor handling the case to present the case to a grand jury prior to the scheduled preliminary hearing.  After the initial appearance, the magistrate has up to fourteen days if the defendant is in custody and twenty-one days if the defendant is not in custody to set such a hearing.  However, he may order it in a much shorter time. Thus, a grand jury may not be scheduled to meet prior to the date for the hearing or the prosecutor’s other duties may preclude his being able to present the case to a grand jury prior to the date scheduled for the preliminary hearing. Or, in rare cases, the prosecutor himself may actually desire that the preliminary hearing be held so that he may assess the strength of his case or the credibility of a given witness, usually the victim. Again, and as a general rule, prosecutors usually try to avoid the preliminary hearing.

A preliminary hearing is, by definition, a preliminary examination of the Government’s probable cause evidence. Federal Rules of Criminal Procedure Rule 5.1 § (e) and (f) describe the procedure involved:

(e) Hearing and Finding. At the preliminary hearing, the defendant may cross-examine adverse witnesses and may introduce evidence but may not object to evidence on the ground that it was unlawfully acquired. If the magistrate judge finds probable cause to believe an offense has been committed and the defendant committed it, the magistrate judge must promptly require the defendant to appear for further proceedings.

(f) Discharging the Defendant. If the magistrate judge finds no probable cause to believe an offense has been committed or the defendant committed it, the magistrate judge must dismiss the complaint and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offense.

At the preliminary hearing, Government counsel will usually call a single witness in order to convince the magistrate that the probable cause standard exists and that the defendant should be “bound over” pending presentment of the case to a grand jury. This witness will typically be the law enforcement agent most familiar with the facts of the case so as to be able to convince the magistrate that the requisite probable cause exists. However, sometimes the prosecutor may call one of its least knowledgeable witnesses to testify to probable cause. This decision is a strategic one based on experience and with full knowledge that whoever testifies will be subject to cross-examination by the defendant’s attorney.  It may be that in a particular case the Government desires to protect the identity of one of its witnesses or perhaps, an informant. Sufficient evidence must be presented to the magistrate, however, to convince him that probable cause exists sufficient to require the defendant to post bail on the offense – e.g. – to bind him over pending grand jury action.

In the hypothetical John Doe case, a prosecutor might call as its witness Agent Jones instead of Agent Smith. Agent Jones may testify about the defendant’s fingerprints at the bank, the license number off the defendant’s car as recited by the teller, or will advise the magistrate of the teller’s description and statement concerning the robbery. Agent Smith, the principal investigating agent, may not be called because one of his confidential informants may have advised the FBI where Doe was hiding out after the robbery. Since Agent Jones may not know of Agent Smith’s confidential informant, and may only know of limited aspects of the investigation since he was not in charge of the investigation as a whole, he would probably be called as the Government’s witness at the preliminary hearing. Why? Because on cross-examination, the prosecutor will know that the informant’s identity will be protected if defense counsel tries to inquire about how the FBI located Doe. If the prosecutor wants to find out if the teller can identify the robber, or otherwise wants to see if the teller can withstand vigorous cross-examination, the teller might also be called. As a general rule, however, the prosecutor will attempt to present minimally sufficient evidence only, while a defense attorney will seek at the hearing to discover as much as possible about the Government’s case against his client.

Because a certain amount of discovery is inevitable if the preliminary hearing is held, the prosecutor has a great incentive to indict prior to the scheduled date of the preliminary hearing.  This incentive, coupled with the prosecutor’s desire to avoid duplication of effort and avoid the hearing altogether, usually results in few preliminary hearings being held in the federal system. As indicated, however, this is only a generalization. If the prosecutor has an unusually strong case, he may desire a preliminary hearing so as to demonstrate this fact to the defendant and encourage plea negotiations. Many strategic considerations govern whether a preliminary hearing is held where the Government has the option of indicting a case before the hearing. If no such option exists and the hearing is scheduled before an indictment can be presented to the grand jury, other strategic considerations will govern how the prosecutor will present to the magistrate a preliminary case of probable cause. Because hearsay evidence is permissible, prosecutors have wide latitude in deciding exactly who to call as a witness. If the prosecutor finds that inevitable discovery during cross-examination might damage his case in some fashion, endanger a witness, or undermine a parallel investigation of co-conspirators, a prosecutor may voluntarily dismiss charges rather than have to present evidence during a preliminary hearing.  Of course, there is a risk to this course of conduct, for once the charges are dismissed, the defendant can no longer be held on bail and he goes free. Occasionally, however, this tactic is employed and the defendant re-arrested at a later date.

If the preliminary hearing is held, and the Government presents a witness or witnesses, the viewing magistrate must “bind” the defendant over for further proceedings if the evidence presented establishes probable cause to believe that a federal crime was committed and that it was committed by the defendant. If the magistrate does not so find, the defendant will be ordered released. Even after such a release, however, a prosecutor may present the case to a grand jury. During the interim period between release and grand jury action, however, the defendant would be free of all bail restraints.

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