Preliminary Hearings in Colorado

By Colorado Criminal Defense Lawyer – H. Michael Steinberg – Colorado Preliminary Hearings Law

Preliminary Hearings are always held in the County Court of the relevant jurisdiction’s Court Justice Center. H. Michael appears with you. If the case actually proceeds to a preliminary hearing – a brief hearing to determine if there was “probable cause” for the “Complaint” is held. You will not testify at that hearing and the Prosecutor cannot call you as a witness. In fact it is very rare that the defense presents any evidence at all.

A preliminary hearing is limited to matters necessary to a determination of probable cause. The rights of the defendant are curtailed and typical “trial” evidentiary and procedural rules are relaxed. The rights to cross-examine witnesses and to introduce evidence are limited to the question of probable cause.

A defendant has no constitutional right to unrestricted confrontation of witnesses and to introduce evidence at a preliminary hearing. By rule, defendants have the right to a preliminary hearing under certain circumstances. The law permits a defendant to ” cross-examine witnesses against him and may introduce evidence in his own behalf.’ Colorado Crim. P. 7(h)(3). However, the preliminary hearing is not intended to be a mini-trial or to afford the defendant an opportunity to effect discovery of the State’s case.

Additionally, the judge’s findings at a preliminary hearing are restricted to a determination of probable cause. A judge does not and may not engage in credibility determinations unless the testimony is incredible as a matter of law.

Testimony is “incredible as a matter of law” if it is “in conflict with nature or fully established or conceded facts. It is testimony as to facts which the witness physically could not have observed or events that could not have happened under the laws of nature.”

This finding of “incredible as a matter of law is exceptionally rare. The Defense lawyer is often prevented from going deeply into motives to lie – for example or to engage in other credibility inquiries by the Judge. Thus, the right to cross-examination may be curtailed by the judge in all but the most unusual circumstances.

Because credibility is not at issue and probable cause is a low standard, once a prima facie case (a very basic case) for probable cause is established, there is little defense counsel can do to show that probable cause does not exist. As a practical matter, some defense lawyers do not extensively cross-examine witnesses at the preliminary hearing, understanding that the cross-examination.

Thus the fundamental opportunity for cross-examination at a preliminary hearing is limited and the opportunity for cross-examination regarding the credibility of a witness, as a matter of fact, is even further curtailed by most judges.

The far more common use of the PH, is the first sincere “arms length” negotiations to try to achieve a “Plea Agreement.” An offer by the DA is usually met with several rounds of “back and forth” between the lawyers who start the process to work closer and closer to a “waiver” of the hearing for the “right” plea bargain offer.

If an offer is made that supports a “waiver” of the PH in the opinion of H. Michael – he will recommend a waiver of the PH. Sometimes no offer makes sense – but further positive negotiations make sense, then H. Michael will recommend that the client “waive” the right to a PH. A waiver then occurs and the case is “bound over” and is sent from County Court to District Court on the next court date – this is called the Arraignment. Almost ALL PH’s are waived (some 95%) and bound over to District Court.