San Diego Felony Defense Attorney

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Felony cases in California can be filed two separate ways: by grand jury indictment or by criminal complaint.  Very few cases are filed in San Diego by indictment, meaning that the overwhelming majority of cases is filed by criminal complaint.  The District Attorney files a complaint, charging the defendant with certain criminal acts.  Though these charges must eventually be proven at trial, an earlier stage exists, where the government must demonstrate cause to hold the defendant to answer to the charges.  The preliminary hearing is a very important stage in a criminal case, and gives the defense a preview of the strength of the government's case at trial.

WHAT IS A PRELIMINARY HEARING?
A preliminary hearing is a hearing in California felony cases that are filed by criminal complaint.  At the hearing, the government must present enough evidence to meet its low preliminary hearing burden.  This will typically involve testimony by one or more witnesses, including police, alleged victims and other percipient witnesses to facts needed to prove the government's case.  The defense may also subpoena witnesses to testify on its behalf.  This is an opportunity for the defense to explore the evidence, lock witnesses into testimony, argue motions, and try to get the case dismissed for lack of evidence.  If a defendant is "held to answer" at a preliminary hearing, then the case will proceed towards trial (though there will be additional opportunities to settle the case or get it dismissed).  Otherwise the case will be dismissed.

WHEN WILL MY PRELIMINARY HEARING TAKE PLACE?
The preliminary hearing is not the first court date.  Typically, the first court date in a felony or misdemeanor case is an arraignment.  Most felony cases will proceed to a preliminary hearing setting date (an opportunity to exchange additional discovery and discuss settlement) and then a preliminary hearing.  There may be several continuances prior to a preliminary hearing, especially if the defendant is out of custody, or a continuance is necessary to conduct investigation

WHO HAS THE BURDEN OF PROOF AT A PRELIMINARY HEARING?
The government has the burden of proof at a preliminary hearing.  Unfortunately, the government's bruden at preliminary hearing is quite low.  Nevertheless, the government must make enough of a showing to the judge that there is enough evidence to justify taking the case to a jury.  If a fact-finder (usually a jury) could find the defendant guilty based on evidence introduced at the hearing, then the judge will usually "hold the defendant to answer" meaning that they will be arraigned for trial.  Weight of credibility is a question left for the jury.

WHAT ARE MY DEFENSES AT THE PRELIMINARY HEARING?
Due to the government having the burden of proof, the most common defense asserted at a preliminary hearing is that there is insufficient evidence to prove that .  If your attorney does decide to put on a case at the preliminary hearing, it is possible to assert a wide array of defenses including: self-defense, mistaken identity, false accusations, lack of intent, lack of present ability, and much more.  Cases can be dismissed at the preliminary hearing for a number of reasons.  Motions to dismiss the case and motions to suppress evidence can be heard along with a preliminary hearing.  The preliminary hearing is also a very important step in trial preparation.  It is an opportunity to set up defenses at trial by locking witnesses into sworn testimony.

WHO WILL TESTIFY AT THE PRELIMINARY HEARING?
The prosecution and the defense both have the power to subpoena witnesses and call witnesses who can testify to relevant facts for a preliminary hearing or motion.  Typically the government will call one or more civilian or police witnesses, as necessary to make their case.  Cases with multiple charges or courts may require more witnesses.  The defense often does not call any witnesses at the preliminary hearing.  Still, objection to the prosecutors questions on direct, and a strong cross examination of government witnesses is an important step at a preliminary hearing.

CAN THE JUDGE INCREASE MY BAIL AT THE PRELIMINARY HEARING?
Yes.  Although the US Constitution only allows bail to be set for one reason (to secure the defendant's availability at court), California lawmakers have also given the court authority to impose bail to "protect public safety."  Further, bail is often used to pressure a defendant to plead guilty to a charge.  Unfortunately, it is not uncommon for the District Attorney and judges to use this tool to coerce a guilty plea.  If the government asks to increase or impose bail at your preliminary hearing, it is important for your attorney to be able to persuasively argue that (1) you are not a flight risk, and (2) not a danger to the community.  Additionally, you need an attorney who will stand up to government bullying and convince the judge to do the right thing.

If you or a loved one has been arrested and charged with a felony in San Diego, the prosecution will aggressively pursue a conviction and harsh punishments against you.  You deserve a thorough, hardworking, devoted defense.  Contact us now for a Free Consultation with a San Diego Criminal Defense Lawyer.  619-930-9515.

Nicholas M. Loncar, Esq.
San Diego Criminal Defense Attorney
San Diego DUI Lawyer
www.iDefendSanDiego.com
T: 619-930-9515
F:
619-930-9516
By Nicholas Loncar       
 


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