STEP 7 – PRELIMINARY EXAMINATION
After legal counsel has been obtained and had time to prepare, a preliminary examination will be held as required by Article 29 of the Kansas Criminal Procedure Code. At this hearing, the judge will ensure the probable cause to move forward exists. If the charge is simply a misdemeanor, this hearing is not required. However, for felony charges, it is an important first step in the prosecution of the alleged crime.
Section 22-2902 requires that a preliminary examination be held within two weeks of the first appearance of the defendant. This time limit may be expanded on certain, very limited circumstances. The defendant’s lawyer should have had some opportunity to review the initial discovery and prepare to challenge the evidence. Therefore, as noted in State v. Winter, there is no harm to the defendant when the timeframe is extended upon agreement with the district attorney. However, the district attorney is very rarely allowed a later preliminary examination beyond the two-week window when the defendant does not agree.
The purpose of a preliminary examination is again, very limited. The defendant does not need to plead at this stage. Instead, the judge is simply ensuring that the evidence produced by the investigation can establish probable cause of two things. First, that a crime was in fact committed. Second, that the defendant is the one that committed that crime. So long as there is probable cause as to these two facts, the court will allow the prosecution to move forward. If the district attorney cannot prove one of these facts, there is insufficient probable cause for the charge and they must be dismissed immediately. As discussed below, district attorneys rarely fail to meet this standard as it is much lower than the evidence needed to convict.
Conducting The Hearing
A preliminary examination is conducted in a similar fashion to a trial. Witnesses and evidence are put forth by the district attorney. The defense counsel is able to question the witnesses and argue the weaknesses of the case presented by the district attorney. Unlike a trial, however, no jury is present. The judge will make both the rulings of law and determine the sufficiency of the evidence. Finally, though rules of evidence which control what can and cannot be used at trial generally apply, there are some relaxed standards at this stage. These can be significant, but are largely technical and best left to experience counsel to deal with.
The evidence put on by the district attorney attempts to prove the two facts noted above: a crime has been committed and the defendant committed that crime. However, the district attorney does not have to carry the weighty burden that applies at trial. Rather than having to prove these facts beyond a reasonable doubt, the district attorney needs to only establish probable cause for each. To put it another way, the prosecution only needs to put on enough evidence that would allow an ordinary person to “entertain a reasonable belief of the accused’s guilt.” In State v. Washington, the court noted how low of a burden this was: it is not more likely guilty than not, it is just a reasonable possibility of guilty. Because of this relaxed standard, many cases that can never succeed at trial are allowed to progress beyond the preliminary examination. Lessening the burden even further, the Kansas Supreme Court instructed in State v. Bell that when testimony conflicts on a key fact, the judge should find probable cause so that a jury may determine which witness to believe at trial.
Defense counsel may make a suppression motion at the preliminary hearing. Generally, if any evidence was illegally obtained and that fact was found out via discovery, the preliminary examination is a convenient opportunity for defense counsel to bring forth those arguments. If the court determines there was illegally obtained evidence, that evidence will not be allowed to be used by the district attorney in attempting to establish probable cause. Even if the evidence is not suppressed, it must still largely comply with the rules of evidence to be considered by the judge. However, this is generally not an issue as the amount of evidence needed to carry the day for the prosecution is significantly less than what is needed for trial. The district attorney may be able to establish probable cause through the testimony of just a few witnesses or a key piece of physical evidence.
After the evidence has been fully presented, the judge will make a determination. If sufficient evidence exists to support probable cause of the charged crime, the case will proceed forward. If probable cause is not established for any crime, the charge is dismissed. However, the evidence produced may not establish probable cause for the specific crime charged but may establish that another crime has been committed by the defendant. In this case, prosecution for the lesser-included offense—the less severe crime “within” the charged crime—may proceed in place of the charged offense. For example, if the filed charges are for murder, but the judge finds no probable cause of the intent to kill, the court may allow the state to go forward on charges for manslaughter. However, as noted in State v. Leslie, the lesser-included offense must still be a felony, as only felony charges are given a preliminary examination. If the lesser-included offense is only a misdemeanor, the judge must dismiss the charges completely.
On final possible resolution exists: the defendant may plea bargain. Though the defendant is not required to submit a plea at a preliminary examination, the option to plea bargain is available. The option to plea will remain open until the jury renders a verdict, but occasionally the preliminary examination may be a strategically sound place to open discussions.