5. PRELIMINARY HEARING
RULE FOUR
NEVER WAIVE PRELIMINARY HEARING UNLESS YOUR COMPLAINING WITNESS IS ONE-HUNDRED-AND FOUR YEARS OLD, THE SOLE WITNESS AND MARRIED TO A SEVENTEEN YEAR OLD GIRL. THE ONLY OTHER EXCEPTION IS IF YOU GET A SUPER PLEA BARGAIN SUCH AS A LIMITATION ON A SHOW CAUSE TO COME IN THE FUTURE OR SOME OTHER DYNAMIC AGREEMENT.
RULE FIVE
NEVER TRUST A JUDGE.
Depending on a judge to win a case for you is foolish. Try the case on the merits.
RULE SIX
NEVER ASSUME OR EVEN AIM AT WINNING A CASE ON THE FACTS AT PRELIMINARY HEARING. PROCEDURAL ATTACKS AND SUPPRESSION SHOULD BE TRIED.
RULE SEVEN
NEVER, EVER, PUT YOUR CLIENT ON THE STAND DURING A PRELIMINARY HEARING.
RULE EIGHT
RECORD EVERY PRELIMINARY HEARING.
It is not necessary to hire a court reporter, but tape record everything, if possible. In Lankford v. Foster, 546 F. Supp. 241 (W.D. Va. 1982), the trial attorney was found to have committed a "serious error of judgement" in not recording the testimony of the prosecutrix in a straight credibility case. A. Section 19.2-183, Code of Virginia, states, in part, that: B. At the [preliminary] hearing the judge shall, in the presence of the accused, hear testimony presented for and against the accused in accordance with the rules of evidence applicable in criminal trials in this Commonwealth. ... [t]he accused may cross examine witnesses, introduce witnesses in his own behalf and testify in his own behalf.
B. The purpose of preliminary hearing for a defense attorney is:
1. Discovery and definition of the charges, and
2. To pin down witnesses, in as much detail as possible, to one distinct and unchangeable version of the facts. Remember not merely to cross-exam with a repeat of direct. Cross-examine outside of the time parameters of the Commonwealth. Lying witnesses cannot coordinate or even envision every scenario that can be presented by a skilled cross-examiner. If the Commonwealth starts with "Where were you the night before and with whom?"
3. Set up collateral estoppel situation if appropriate. Virginia case law is perhaps the most liberal, and consistent with the constitutional safeguards of the farmers, of all the states. In any case where you have a felony and misdemeanor, for example, possession of cocaine and possession of paraphernalia or possession of cocaine and possession of marijuana, or any two cases with any element in common you are ripe to win the case early.
4. Motions to Suppress
There is perhaps no more aggressive manifestation of the art of defense advocacy than the Motion to Suppress. Prosecutors and judges hate motions to suppress. The suppression motion is viewed as a waste of time: an effort my a defendant, manipulated by his devious lawyer, to escape the justice for his acts by hiding by some "technicality". Constitutional rights are not technicalities. Constitutional rights are the very reason we have judges. Judges take oaths to protect the constitution. There is nothing about guilt or guilty people in the oath of judges. Judges take the oath, invoking the name of God, that they will protect the constitutional guarantees: those technicalities. Sort of makes one think there will be damn few judges in heaven. The motion to suppress, at any level of the proceeding, but particularly at the preliminary hearing level in state proceedings, is a valuable tool. The advocacy of a motion to suppress can get a case dismissed. True it can be refiled, however, the defense has taken some control by proceeding and prevailing at the preliminary hearing level. The lawyer becomes better at the law of suppression every time he or she files and has a hearing on that motion. Every time there is a hearing on the motion to suppress the defendant is acquiring information about the case. The identification of a good suppression issue, even if the judge cheats and overrules the motions, can be the basis for the correct mind set for negotiation on the plea agreement. Some lawyers, particularly those who practice before embezzling general district court judges; those judges who steal their paychecks by rubber-stamping everything presented by the government, do not file Motions for Suppression in General District Court. The idea is that the defense tips its hand by filing the suppression motion and gives an officer, who might be prone to lie, time to develop that lie.
What is missed in that precept is that, if the motion is filed in the lower court as part of the preliminary hearing, the officer will be locked into one version of the facts. This is more important if the preliminary hearing is tape recorded or memorialized through a court reporter. When should an attorney attempt to identify a suppression issue? That part is easy. "I could win this case if it were not for _____________, (insert one) those drugs, that gun, that identification, that confession or whatever." If that statement is made during the analysis of a case, there is a need for suppression. Basic suppression pleading is very simple. If the arrest or search is conducted without a warrant, once a defendant establishes standing, the burden is on the government to prove the lawfulness of the search. Was there probable cause? If there was probable cause, was there an exception to the warrant requirement: exigent circumstances, to justify not taking the matter to the magistrate? The rationale of the challenge is simple. Utilizing linear thought arrange all of the facts of the case. The defendant is walking down the street, he is approached by officers, he is asked for his identification, the officers then pat him down and feel something that is not a weapon, the officers put their hands into the defendant's pants and recover the drugs. By taking these facts in linear sequence the trial lawyer looks for an unlawful act on the part of the officers to "cut" the factual line. If the line can be factually cut, that is, a some point along that line the police detected to have committed and unlawful act, everything thereafter becomes suppressible.
Example:
The defendant is walking down the street, he is approached by officers, he is asked for his identification, the officers then pat him down and feel something that is not a weapon, the officers put their hands into the defendant's pants (cut) and recover the drugs. The officers do not have the right, absent probable cause for an arrest or search, to put their hands into the defendant's pockets except when, during the pat-down, they felt something which was discernable as a weapon. Unless the officer felt a weapon the intrusion into the defendant's pockets was unlawful. Another challenge might be made based on the Terry pat-down. The officer can only conduct the pat-down if he has articulable suspicion to believe that a crime had been committed and that the defendant was in some manner involved, and that the suspect might be armed and dangerous. In the hypothetical given, there are no facts provided to support a finding of articulable suspicion that a crime was being committed and that the defendant committed that crime. It will come as a surprise to many but officers cannot merely walk up to someone and conduct and investigation. Note, to put oneself in the right mind set to analyze suppression issues, ask the question: If the British were to do this to a colonists, would it have pissed off Thomas Jefferson? If the answer is yes or probably, you have a suppression issue. The mind set for evaluation of the sufficiency of probable cause in a warrantless situation arises from the fact that there is no difference in the amount or quality of probable cause in a warrantless situation as when a magistrate issues a warrant. The basis for evaluation is: given the amount of information known to the officer at the time of the arrest or search, would an impartial judge, hearing that information, have ordered the arrest of that defendant and held him or her to face a trial based on that evidence? If the answer is no, there is insufficient probable cause.
When the police use a warrant to effect an arrest or warrant raises further complications, not of list of which is the "good faith exception" of Leon. Since the opinion in Leon many attorneys no longer challenge search warrants or arrest warrants. Leon is not infallible. It does not heal the halt and afflicted warrant or function as a incantation, like Open Sesame to overcome the fruits of a dumb officers affidavit. First, though not settled in the law, someone challenging a warrant should argue that the burden for claiming benefit of the "good faith exception" like every other exception to a legal requirement, lies with the party seeking the benefit of the exception: the government. That burden, to prove entitlement to the exception
ERRORS IN PRELIMINARY HEARINGS
Many judges and attorneys seem to treat the necessity of a full preliminary hearing as merely procedural and statutory and of no significant constitutional impact. Remind yourself that your client has a procedural right and due process gives denial of that right constitutional ramifications. See Triplett v. Commonwealth, 212 Va. 649, 186 S.E. 2d 16, (reversible error for trial court to refuse that procedural right). What happens in general district court on preliminary can stink all the way to the Court of Appeals.
Preliminary hearing, when conducted properly, is invaluable to both sides. A stupid prosecutor will use the process to learn about his case. You will recognize them by their stupidity and lack of preparation. With a skillful and competent prosecutor look for no more evidence then necessary for the issue of probable cause and penetrating direct-examination. When a prosecutor asks questions like, "Tell the judge what happened?" you are in the presence of ignorance and/or laziness. By the way, he objection is that the question calls for a narrative and would prevent counsel for defendant from making a timely objection or determining the source, actual or hearsay, of the evidence of the witness prior to its admission.
C. A special note to prosecutors concerning preliminary hearings
No full time urban prosecutor has the time to conduct a full and complete pretrial review of every case set for preliminary hearing, let alone, prepare witnesses. However, that is not an excuse. A good prosecutor will review the docket and look for cases where special attention is going to be necessary for reasons of the nature of the offense and of the skill of the opponent. Any felony drug case, particularly arising from traffic or street stops (potential suppression problems) require special attention. Any case where a motion to suppress is a possibility requires special attention. Any case with a "big gun" defense attorney fits in the same category. If you see a court reporter, find out the case for which they are appearing. Remember smart and untrusting defense counsel will tell the court reporter to look for them, the lawyer, and the court reporter will not know the defendant's name. All rape cases involving children, elderly or handicapped witnesses or victims require a special preparation. If you think this is just a preliminary step ( like filing out your dance card) to get to the trial, you are stupid. The testimony at this hearing will be the testimony in this case forever. It can never be changed or cleaned up. It will be yours forever to frame or to flush in a convenient receptacle.
A true master for the defense will attempt to fully and completely lock every witness into a version of the facts, hopefully outside of the parameters normally discussed and anticipated by a witness for the government. You can never be too "nit picky" about facts, particularly with multiple witnesses. Every inconsistency between "eyewitnesses" will be noticed and reacted to by a conscientious jury.
RULE NINE
NEVER ALLOW AN IMPATIENT JUDGE, PROSECUTOR OR OTHER ATTORNEY TO RUSH YOU INTO COMPROMISING YOUR OPPORTUNITY TO CONDUCT A FULL AND STATUTORILY COMPLETE PRELIMINARY HEARING.
Do not waste time, stipulate to what you can but on the issues in controversy take your time. The only valid reason for hurrying your case is for the benefit of the case. If you worry about upsetting someone in the courtroom, get another job. Truly, professional judges, lawyers and prosecutors will respect you. Idiots will not. To hell with them.