Should I waive my right to a preliminary hearing in a sex assault case?

A person charged with a felony sex crime must make numerous strategic and tactical decisions which could affect the outcome of the case, including if they would like to waive their right to a preliminary hearing.

What is a preliminary hearing?

In Nebraska, any person charged with a felony has a right to a preliminary hearing. A preliminary hearing is a safe guard that prevents baseless charges from going forward in the court system.

In a preliminary hearing the prosecutor must establish probable cause that:

  1. A crime was committed
  2. The accused committed the crime.

Why would anyone waive a preliminary hearing?

Unfortunately, in most sex assault cases if someone alleges that they have been sexually assaulted and the government files charges, the judge of the preliminary hearing is likely to find sufficient evidence to bind the case over to district court.

At preliminary hearings, rules of evidence do not apply. This means that hearsay evidence is allowed.

In most sex assault preliminary hearings, the only witness that testifies is the investigating officer. However, the defendant has the right tosubpoena witnesses to testify including the alleged victim. Subpoenaing witnesses for the preliminary hearing may be a good idea, but other times it is not. We will address this topic in a later blog.

Bottom line, odds of winning the preliminary hearing are often low.

But what if I win the preliminary hearing in a sex assault case?

If you win a preliminary hearing, the prosecutor can refile the case. While the 5th Amendment of the U.S. Constitution protects against double jeopardy and does not allow someone to be tried for the same crime twice, a preliminary hearing does not count as a trial. Therefore, even if you win a preliminary hearing, the prosecutor may simply refile a case.

What is the downside to a preliminary hearing?

Sometimes there is no downside to having a preliminary hearing. Yet some prosecutors in Lincoln, Nebraska will refuse to turn over police or investigative reports if the defendant has a preliminary hearing. In this instance, the defendant often waives his or her right to a preliminary hearing in exchange for the investigative reports.

Doesn’t the government have to show police reports?

Yes and no. Under the Nebraska Discovery Statute and state and federal case law, the government must turn over any exculpatory information, even if it is the police reports. The problem is that if the prosecutor will not likely know your defense and thus won’t know what information will be helpful to the defense.

Aside from some prosecutors in Lincoln, most prosecutors will turn over investigative reports regardless of whether the accused waives his right to a preliminary hearing. The logic behind this is simple; why risk failing to turn over evidence in a criminal case? In cases where prosecutors fail to turn over important evidence found in police reports and other places, cases have been overturned and in some instances, the accused was awarded a large cash settlement arising from a lawsuit where the government obtained a false conviction by not turning over evidence to the defense.

Even if there is no exculpatory evidence in the reports, they can be extremely helpful to the defense.

While at a preliminary hearing, the defendant will get to cross-examine the witness, but the cross-examination will be extremely limited. Often the investigative reports contain much more information than the government presents at a preliminary hearing.

The good news

The good news is that the preliminary hearing is just the first step. After the preliminary hearing the defendant will have the opportunity to get discovery which may include audio and video recordings of statements, medical tests, DNA tests, and summaries of the potential testimony of any expert witness as well as the contact information for witnesses the state plans to call up during trial. In the state of Nebraska, the defendant will then have the opportunity to take the deposition of witnesses relevant to his or her defense.

In short, the preliminary hearing really is just the beginning.

To waive or not to waive?

There is no right answer to this question. As discussed above, even if the accused wins the preliminary hearing, the government may refile. Furthermore, the preliminary hearing is not a full-blown trial but rather a brief hearing that allows the magistrate judge to determine whether the case should move up to the next higher level of review which is the district court. The district court is where the case will be tried.

If you’ve been charged with a sex crime contact the experienced and aggressive attorneys at Berry Law.

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