In Oregon, when a felony case is initiated in court it must first go through a probable cause determination before the matter can be set for trial. There are two different forms in which this can occur.
The first is called a grand jury. This is where the prosecution presents the case to a group of citizens outside the presence of the defendant and criminal defense attorney, and the grand jurors are asked to determine whether probable cause exists based on the evidence presented to them by the prosecution. If the grand jury finds probable cause, they will return an indictment which then becomes the formal charging document in that particular case. If you have been charged with a felony crime in Multnomah County, Oregon your case will go through the grand jury process. However, if you have been charged with a felony crime in Washington County, Oregon the prosecution may elect to have a preliminary hearing instead. Washington County prosecutors tend to have preliminary hearings instead of grand juries in cases with relatively simple issues and few witnesses.
A preliminary hearing is similar in structure to a trial, however a judge, not a jury, is the factfinder and the burden of proof is much lower than that required at a criminal trial. At a criminal trial, the prosecution is required to prove guilt beyond a reasonable doubt. During a preliminary hearing the prosecution is required only to demonstrate that probable cause exists for the case to move forward in the court system. While your criminal defense attorney will be allowed to question witnesses, the scope of the questions is much more limited than a traditional trial.
A preliminary hearing can provide your criminal defense lawyer with insight into the weaknesses of the prosecution’s case. It also gives your criminal defense lawyer an opportunity to cross-examine key witnesses, most notably the arresting police officer. This cross-examination gives your attorney an early opportunity to lock in witness recollection. Later, at trial, if the witness tries to offer testimony different from what was offered at the preliminary hearing, your criminal defense lawyer can question the truthfulness of the witness.
While there are good reasons for a criminal defense attorney to hold a preliminary hearing, there is also a reason why a defendant might waive the right to have a preliminary hearing. Remember, plea offers are made at the discretion of the District Attorney’s Office, and they tend not to like preliminary hearings for all the reasons that criminal defense attorneys like them. Prosecutors also don’t like that preliminary hearings take valuable time and resources. If a defendant demands that the District Attorney have a preliminary hearing on a case, the plea offer may get worse. If there is a good plea offer on the table, or the potential for a good offer if the preliminary hearing is waived, a defendant may want to waive the hearing while talks between the prosecutor and the defendant’s criminal defense attorney continue forward.
If you or someone you know is charged with a felony in Hillsboro, Beaverton, Portland, or any other Portland area city, contact Hillsboro-based criminal defense lawyer Casey Kovacic.
Casey Kovacic is an Oregon criminal defense and expungement lawyer practicing in the greater Portland, Oregon metropolitan area. He handles every type of Oregon state criminal case and helps clients clear their records. He brings an unwavering commitment to pursuing a fair and just outcome for every client he defends.