"The Preliminary-Hearing Swindle: A Crime Against Procedure" by Michael D. Cicchini
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Abstract

It is incredibly easy for a prosecutor to file a complaint, thus setting the criminal litigation machinery in motion. But in felony cases, defendants are entitled to a preliminary hearing which serves as a check on prosecutorial power. The “prelim” is an adversarial hearing at which the prosecutor must present evidence and call witnesses who are subject to cross-examination. The prelim’s purpose is to test whether there is probable cause to believe the defendant committed a felony, thus preventing “hasty, malicious, improvident and oppressive prosecutions.”

Nearly all states allow prosecutors to use hearsay, with limitations, at the prelim. Given that, a Machiavellian prosecutor wondered, “If hearsay is admissible at the prelim, and if the complaint consists of hearsay, why don’t we just have someone read the complaint at the prelim and dispense with witnesses and evidence entirely?” The judiciary proved to be an eager coconspirator, and the preliminary-hearing swindle was born.

This Article demonstrates how, exactly, the swindle works and explains why it is illegal: it defeats all of the policies and purposes underlying the prelim and directly violates clear statutes, case law, and even the Constitution. This Article also explains the intended consequence of the swindle: it is amazingly easy for prosecutors to file, and win bind-over in, felony cases. In one venue that has implemented the swindle, felony cases have risen from 38 percent to 50 percent of all cases.

The swindle is just the most recent, albeit the most severe, form of prosecutorial and judicial abuse of the prelim. Because of this cumulative abuse, felony defendants now have fewer protections than do misdemeanor defendants—the exact opposite of what the law intended. Given this state of affairs, this Article provides a model motion that challenges bind-over after a defective prelim, preserves these issues for appeal, and protects defense counsel from future claims of ineffectiveness.

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