Tahlequah Attorney BlogWhat Is a Preliminary Hearing?

A Preliminary Hearing Comes in the Middle of Your Case

Video Transcribed: What is a preliminary hearing in Oklahoma? Hi, my name is Ryan Cannonie. I’m an attorney in Tahlequah. And if you’ve been charged with a felony, at least in the state system, then you’re entitled to, what’s called a preliminary hearing.

Now a preliminary hearing comes in the middle of your case. It’s somewhere between arraignment and trial. Now, if you take a plea, you won’t have a preliminary hearing. You can also waive your preliminary hearing meaning, you don’t want one. Before you do that, I would highly encourage you to talk to legal counsel and not waive your preliminary hearing, unless you are really sure you want to and know what you’re doing.

A lot of times for a plea, the prosecutor will have you waive your preliminary hearing and then plea at the next court date. That’s pretty common, but before you waive it, talk to an attorney because once you waive it, it’s almost impossible to get it back.

So what is it? The best way and the way I always explained it when I was a prosecutor to witnesses coming in is, it’s like a mini-trial. The difference is, there is no jury and instead of beyond a reasonable doubt, which is up here, you’re way down here. You can’t see my hand, but way down here for the standard on a preliminary hearing. Now, since there’s no jury, you have a judge. A judge is the one that makes the final determination.

Otherwise, it proceeds very much like a trial. You have witnesses, they get called. The prosecutor, calls their witnesses first, they get to question them. You or your counsel, get to cross-examine, meaning, challenge those witnesses and ask them questions.

And then the prosecutor rests their case. And it’s up to your counsel to stand up and say, “We object to the evidence. We demur,” is the phrase, but basically, the prosecutor has not met their responsibility, their burden to the core. And then sometimes you get to call your own witnesses to put forward your own evidence. And then the judge makes the determination.

And the judge won’t find you guilty. They will actually, what’s called bind you over for trial, meaning that… Or for district court arraignment. Bind you over for district court arraignment, which is putting you on the trial docket basically. You’ve been on this process. And now this is really the first step towards actually getting that jury trial that you want or a non-jury trial.

Now, I said that once the prosecutor rests, the defense gets up and makes their demur. Then you get to call witnesses. That’s actually… It can and can’t happen. So if the prosecutor has given over all the police reports, all the witness statements, laboratory reports, what we call discovery to the defense, then technically the judge per statute can end a preliminary hearing as soon as they have enough evidence to make a determination. So as soon as they feel satisfied, they can end it.

Now, I never saw this when I was a prosecutor, but I had other prosecutor friends who had told me about working in different counties that they had seen this, that they had their witnesses lined up.

They were going to call them for different things, and a judge stopped it right in the middle of a witness and said, “Okay, I’ve heard enough. I’m going to consider this defendant bound over.” And the prosecutor was standing there and saying, “Oh, wait, wait, I need to get these other witnesses on the record. They may not be available for trial.” And the judge was like, “Well, you should’ve put them earlier.” I have never experienced that, but I’ve heard of that happening.

The judge shutting it down whenever they’ve heard enough is not something common, but it does happen. So be aware that could be a situation. If you are looking at a criminal case and you are… Hopefully, you’ve talked to an attorney before this point, but if you’re getting to your preliminary hearing and you want to talk to an attorney, then please give us a call. A preliminary hearing is something you don’t want to go into on your own. You want an attorney there with you.

The joke was about basically, it’s like clubbing baby seals with preliminary hearings. Because a prosecutor has done this enough times, they know the rules, they know how to ask questions, they know how to get their witnesses there, they know how to subpoena people. They know how to put forward exhibits and get evidence into the record.

These are things that we as attorneys either learned or were taught and you don’t know. So if you go into a preliminary hearing against a seasoned prosecutor, then you’re really trying your hands behind your back because you don’t know how to really handle these. When I was a prosecutor before I became a defense attorney, I did some prelims against pro se defendants. And I didn’t really want to, but it was a situation where we had to.

The court basically said we had to do this. And they waived counsel, they wanted to represent themselves. They were adamant they wanted to represent themselves. And when we got in there, they did not know the rules. They didn’t know how to do anything. And so it was very one-sided on those. And that’s not really how the process should be.

So if you are in this situation, then please give an attorney a call. Please give us a call. We’ll talk to you about it. Explain the situation, explain to you what you’re looking at, and hopefully, we can help. So, and if you don’t want to give us a call, go to the website, tahlequahattorney.com. Shoot us a web form and we’ll do what we can for you.

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