Judge Hyman
Anatomy of Domestic Violence Preliminary Examinations in California

Chris Brown is scheduled to attend, on Monday afternoon, a preliminary examination regarding his two felony counts of assault against Rihanna that is alleged to have occurred on February 8, 2009.

This blog posting describes the preliminary hearing process in California.

Most court cases settle. Only about 5% of cases, whether civil or criminal, actually go to a trial.  This figure suggests that there is a strong likelihood that Mr. Brown’s case will settle as well.  Every court appearance is an opportunity for a case to settle regardless of whether the proceeding is a pre-trial or settlement conference.

Since most cases settle, the preliminary examination may be the only opportunity for the public to gain knowledge about the case’s merits through testimony and other forms of evidence including pictures, if available.

There is also a possibility that the case may be continued. Absent an emergency or settlement, the proceeding can be expected to proceed.

Usually continuance requests require a motion which allows review by a judge for the necessity of the continuance.

Under both the Federal and California Constitution, a person accused of committing a felony offense is entitled to either a grand jury indictment or a preliminary examination before being required to face a felony trial and its potential expense and embarrassment. 

A defendant is not entitled to both forms of review. Under the Federal Constitution, a preliminary examination is not specifically required leaving only a grand jury preceding that is defined as a minimum requirement that a state must provide.  The California Constitution allows for either method.  Many states follow the Federal view.

The People have the burden of proof at a preliminary examination. The burden required is probable cause that a felony has occurred and that the accused is the person who committed it.  A judge, sitting as a magistrate, determines if this burden has been met.  If it has not, the defendant is discharged.  The People then have the option of appealing the magistrate’s decision or they are allowed to file the charge a second time.

If the People have met their burden of proof, the defendant is bound over for trial.  The defendant has the right to file a motion testing the magistrate’s finding.  If the motion is granted the defendant is discharged and the People have the right of appeal or to file another petition.

Many people mistakenly believe that the evidence standard at a preliminary hearing is proof beyond a reasonable doubt which is instead the required burden of proof in a criminal trial of the charges.

The people are not required to call the actual victim as a witness in order to prove their case and to meet their burden of proof.  In 1990 state Proposition 115 was passed which made significant changes to the legal scheme of preliminary examinations.

As codified, a preliminary examination is not for defense discovery.  California criminal rules do not allow for depositions or interrogatories so the Proposition changes were very significant ones.

The victim’s statement may be read by a qualified police officer and will suffice as testimony for purposes of proof.  Obviously if this occurs, the defense is unable to cross examine the complaining witness.

In most cases of sexual assault, molest, and domestic violence, the prosecutor will call the actual victim as a witness.  It is realized that if the actual victim does not appear and is therefore not subject to cross examination, it is less likely that the case will settle.

What happens if the alleged victim refuses to testify?  In the past a person could be held in contempt of the court and be taken into custody.  A new law now requires that there be a three day period of delay in the contempt process to allow for appellate review of the court’s order to testify.  Subsequent refusal may result in detention.

If a witness recants, effectively denying what was said to the police, other witnesses may be called to impeach the witness with prior statements made to the police, medical personnel, or others who were present.

The defendant has a right to testify at the hearing but almost always declines to do so. 

Most preliminary hearings end with a finding that the People have met their required burden and the defendant is bound over for trail.

The defendant is again arraigned and this time the charging document is called an information and may contain any charges proved by the evidence given at the preliminary examination.  The ultimate charges may be the same or different from the arrest charges.

The defendant has the right to question the sufficiency of the evidence to support the charges brought by the information by filing a sufficiency motion to strike part or all of the information.

The Brown preliminary examination is estimated to take one half day to conduct.