After defense counsel has been obtained and has been given time to get ready, a preliminary examination hearing will be conducted as required by Article 29 of the Kansas Criminal Procedure Code. During this hearing the judge will confirm that probable cause exists so that the case can go forward. This hearing is only required for felony cases, not misdemeanor cases.

Timing of the Preliminary Examination

Section 22-2902 mandates that a preliminary hearing be conducted within two weeks of the defendant’s first appearance. This time frame can be exceeded, but only on very limited circumstances. A defendant’s attorney should have had able opportunity to inspect the initial discovery and be ready to challenge the presented evidence. As held in State v. Winter, there is no harm to the defendant when the time period is extended upon an agreement with the district attorney’s office. However, the prosecuting attorney is seldomly granted a preliminary hearing after the two-week time frame when the defendant has not agreed to it.

Purpose of the Preliminary Examination

There is a very limited purpose for the preliminary examination. The defendant will not plead at this stage. Rather, the judge is simply certifying that the evidence obtained through the investigation can sufficiently demonstrate probable cause of a couple of things. First, that a crime was actually committed. Second, that the accused is the individual who committed that crime. If there is probable cause to these two facts, the judge will grant the prosecution the ability to move forward with the case. If the district attorney fails to showcase one of these facts, then there is insufficient probable cause for the charge and the charges will be dismissed right then and there. Remember, prosecuting attorneys seldomly fail to meet this burden of proof as it is a lesser standard than what is needed to convict an individual of a crime.

Conducting the Preliminary Examination

A preliminary hearing is operated similarly to how a trial is operated. The district attorney will present evidence and witnesses. Defense counsel will then question the witnesses and challenge the strength of the case the district attorney presented. There is no jury present at a preliminary examination. The judge will rule on both the law and the sufficiency of the evidence presented. The standard rules of evidence which are used at trial are relaxed during this hearing. These may be crucial but are predominately technical and should be left to your attorney to manage.

The evidence introduced by the prosecuting attorney strives to confirm the two facts listed above: a criminal act has occurred and that the defendant perpetrated that crime. However, the district attorney does not have to prove these beyond a reasonable doubt as required at trial, they only have to prove probable cause exists for each. To put that in simpler terms, the district attorney only has to introduce enough evidence that would allow a normal person to “entertain reasonable belief of the accused’s guilt.” The court noted how low that burden was in State v. Washington. The court stated that “it is not more likely guilty than not, it is just a reasonable possibility of guilty.” Because of this lesser standard, many cases are allowed to proceed past preliminary examination even though they may not succeed at trial. The Kansas Supreme Court lessened this standard even further in State v. Bell when it held 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.”

A defense attorney is allowed to make a suppression motion at the preliminary examination. Usually, if evidence was illegally gathered and that is discovered through discovery, the preliminary hearing is the opportunity for the defense to present those arguments. If the judge determines the evidence was illegally obtained, the evidence will not be allowed to be used to establish probable cause. If the evidence is not suppressed, it still has to follow the rules of evidence before the judge can consider it. Generally, this is not much of an issue as the district attorney needs much less evidence to prove probable cause during this hearing than they would present at trial to prove beyond a reasonable doubt. The prosecuting attorney could be able to demonstrate probable cause through just key pieces of physical evidence or a few witnesses.

Outcome of the Preliminary Examination

The judge will make a ruling after all of the evidence as been presented. The case will progress forward if probable cause is supported by the evidence. If probable cause is not supported, the charge will be dismissed. However, there is the possibility that the evidence produced didn’t support probable cause for the specific crime charged but does indicate that the defendant committed a different crime. If this happens, the district attorney can pursue the lesser-included offense (less severe crime “within” the originally charged crime) against the defendant. An example would be if the filed criminal charges are for murder, but the court determines that not probable cause exists to demonstrate defendant had intent to kill, the judge could allow the state to proceed on charges of manslaughter instead. However, as held in State v. Leslie, the lesser-included offense has to be a felony as preliminary examinations only pertain to felony charges. The court will dismiss the charges completely if the lesser-included offense is a misdemeanor.

There is one final possible resolution: the defendant can plea bargain. Though the accused is not required to declare a plea at the preliminary hearing, they do have the option to plea bargain. This option to plea remains available until the jury provides a verdict, but strategically, the preliminary hearing is a good place to start these plea bargain discussions.