Preliminary Hearing

Preliminary Hearing

After the readiness conference, if the felony case is not resolved, the next San Diego Superior Court appearance is the Preliminary Hearing. If you are charged with a felony, you are entitled to a preliminary hearing within 10 court days of the arraignment, unless this time is waived (There is no preliminary hearing in misdemeanor cases). We are well aware that because felonies are more serious, the law requires there be a preliminary hearing in order to assure the Superior Court Judge that the case is in fact sufficiently strong and/or meritorious. The legal standard that is required for felony charges is for the prosecuting attorney to show there is a strong suspicion a crime has been committed and this defendant is the one who is probably guilty.

The standard of proof or evidence is relatively minimal and clearly far less than the “beyond a reasonable doubt” evidentiary standard for a criminal trial. In other words, the case can proceed to trial with evidence that would otherwise be insufficient to sustain a conviction at trial. The preliminary hearing is generally relatively short, often one or more hours unless it is a complex case (e.g. embezzlement) that can take much longer, perhaps several days. We want to be your San Diego felony defense lawyer to use this hearing as appropriate to strategize our defense case.

If the prosecution attorney makes the required evidentiary showing at the preliminary hearing in the felony case, the defendant is said to be “held to answer,” which means they must proceed to a trial on the charges. As your felony defense attorney, we will argue and hopefully convince the court that it should conclude the evidence is not sufficient and the judge will then dismiss some or all of the felony charges.

If we are successful and all of the felony rape, robbery, homicide, murder, manslaughter, grand theft or any other felony charges are dismissed, then you are discharged and, if you are in custody, you will be immediately released. However, the prosecutor may re-file the charges, in which case the defendant will be re-arrested and a new preliminary hearing will be scheduled. If we prevail as your San Diego felony defense attorney and the charges are dismissed a second time, the prosecution attorney may not (absent a few exceptions) re-file the charges a third time. If only some of the felony charges are dismissed, however, the defendant will be prosecuted (“held to answer”) on the remaining charges.

In some cases, a criminal charge can be filed as either a felony or a misdemeanor.Also, in the appropriate case at the conclusion of the preliminary hearing, we can argue that the Superior Court should reduce the felony to a misdemeanor. In that situation, the originally filed felony case then proceeds as a misdemeanor charge.

After the preliminary hearing, if the felony charges are not dropped, the defendant will be arraigned in San Diego Superior Court and the next settlement conference date is set along with the trial date. Often, this is the time we use to file motions; and, in some cases, we will demand additional discovery. Once the preliminary hearing is concluded and the defendant is held to answer to a felony charge, the prosecution attorney files an “Information,” which contains the felony charges. The next step is an arraignment on the information, which is 15 court days after being held to answer.