New York State, which also utilizes both the preliminary examination and the grand jury, has under consideration a new Code of Criminal Procedure which would allow the use of hearsay at the preliminary examination.
For the same reason, subdivision a also provides that the preliminary examination is not the proper place to raise the issue of illegally obtained evidence. This is current law. In Giordenello v. That issue was for the trial court. Dicta in Costello v. Blue , U. In United States ex rel. Almeida v. Rundle , F. See also C. Commissioners are not empowered to consider or act upon such motions. It has been urged that the rules of evidence at the preliminary examination should be those applicable at the trial because the purpose of the preliminary examination should be, not to review the propriety of the arrest or prior detention, but rather to determine whether there is evidence sufficient to justify subjecting the defendant to the expense and inconvenience of trial.
The rule rejects this view for reasons largely of administrative necessity and the efficient administration of justice. The Congress has decided that a preliminary examination shall not be required when there is a grand jury indictment 18 U. Increasing the procedural and evidentiary requirements applicable to the preliminary examination will therefore add to the administrative pressure to avoid the preliminary examination.
Allowing objections to evidence on the ground that evidence has been illegally obtained would require two determinations of admissibility, one before the United States magistrate and one in the district court.
The objective is to reduce, not increase, the number of preliminary motions. To provide that a probable cause finding may be based upon hearsay does not preclude the magistrate from requiring a showing that admissible evidence will be available at the time of trial. Umans , F. Andrews , F. Messina , F. Arcuri , F. The fact that a defendant is not entitled to object to evidence alleged to have been illegally obtained does not deprive him of an opportunity for a pretrial determination of the admissibility of evidence.
He can raise such an objection prior to trial in accordance with the provisions of rule Subdivision b makes it clear that the United States magistrate may not only discharge the defendant but may also dismiss the complaint.
Current federal law authorizes the magistrate to discharge the defendant but he must await authorization from the United States Attorney before he can close his records on the case by dismissing the complaint. Making dismissal of the complaint a separate procedure accomplishes no worthwhile objective, and the new rule makes it clear that the magistrate can both discharge the defendant and file the record with the clerk.
Subdivision b also deals with the legal effect of a discharge of a defendant at a preliminary examination. This issue is not dealt with explicitly in the old rule. Existing federal case law is limited. What cases there are seem to support the right of the government to issue a new complaint and start over. See e. Loisel , U. State law is similar. See People v. Dillon , N. Wolke , 21 Wis. In the Tell case the Wisconsin court stated the common rationale for allowing the prosecutor to issue a new complaint and start over:.
Find Us. Call Us. Call For Free Consultation Main Takeaways Anyone charged with a felony should expect their case to take at least several months. The first major step for a felony charge is a preliminary hearing, also known as a probable cause hearing, which is like a mini-trial. The Court Process and Witnesses In California, the first major step for a felony charge is a preliminary hearing, also known as a probable cause hearing, which is like a mini-trial.
The Filing of The Information The next step is the filing of the information, which typically occurs two weeks after the preliminary hearing. The Jury Trial At a jury trial, the prosecution must prove to the 12 jurors unanimously beyond a reasonable doubt that the crime had been committed by the defendant. Getting Arrested is Never Easy. Close Download Guide Now. Get Help Now. Free Initial Consultation. Find Help in Your County. Other Helpful Information. Page Content. Preliminary Hearing. The preliminary hearing, which occurs three to ten days after the arrest, unless continued or postponed, is normally held before the MDJ who works in the area where the crime took place.
At the preliminary hearing, the Commonwealth must present a prima facie case, or in other words, they must show enough evidence that a crime has been committed and that the defendant is most likely the one who committed the crime. If you are the victim of a crime in which a suspect has been arrested, you will most likely be asked to be a witness at the preliminary hearing.
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