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The Preliminary Examination, FED. R. CRIM. P. Rule 5.1 is intended to determine whether probably cause exists to bind the defendant over to the grand jury. However, an additional function, which is of utmost importance to the defense, is the discovery and fixing under oath of the Government witness’ testimony. In light of the limited opportunity for discovery of expected testimony of Government witnesses the preliminary examination serves as the only effective means of “deposing” those witnesses.

Defense counsel must request such hearing and where an intervening indictment is returned the need for a preliminary examination to determine probably cause is obviated since the grand jury has already made such determination. Accordingly, courts have uniformly held that once an indictment is returned a defendant is not enlisted to a preliminary examination. Sciortino v. Zampano, 385 F.2d 132 (2d Cir. 1967), cert. den., 390 US 906 (1968); US v. Chase, 372 F.2d 483 (4th Cir. 1967), cert. den., 387 US 907; Boone v. US, 380 F.2d 911 (6th Cir. 1960); FED. R. CRIM.

  1. Rule 5(c); Federal Magistrates Act of 1968, 18 U.S.C. § 3060(e).

However, the courts have time and again emphasized the importance of a preliminary hearing, White v. Maryland, 373 US 59 (1963); Pointer v. Texas,380 US 400 (1965). In Coleman

  1. Alabama, 399 US 1 (1970), the court held that the preliminary hearing was a “critical stage” of the criminal process at which the defendant is entitled to appointed counsel (even though the state procedure there involved did not require a preliminary hearing as a matter of right and even though those state procedures provided that the sole purpose of the hearing was the determination of probable cause to bind the defendant over to the Grand Jury).

Furthermore, an increasing number of courts are now recognizing that one of the critical functions of the preliminary hearing is discovery for the defendant. MOORE’S FEDERAL PRACTICE: CRIMINAL 8 5.102(2). This is especially true in light of the more limited rights of discovery accorded criminal defendants. Blue v. US, 342 F.2d 894, 901 (D.C. Cir. 1964), cert. den., 380 US 944 (1965) (recognizing that since one of the critical functions of the preliminary hearing was discovery, the defendant should be entitled to a new trial if he can show he was unfairly surprised by evidence at trial which he should have rebutted had he been provided a pre- trial examination). See also Dancy v. US, 361 F.2d 75 (D.C. Cir. 1966); Brown v. Faintlerous, 442 F.2d 838 (D.C. Cir. 1971) (applying in juvenile proceeding). Contra Coleman v. Burnett, 477 F.2d 1187 (D.C. Cir. 1973) (holding discovery is not purpose of preliminary examination).

For example, in Ross v. Sirica, 380 F.2d 557 (D.C. Cir. 1967), the D.C. Circuit Court held that the return of an indictment did not cure defects in a preliminary hearing which had begun but had not yet been completed.

And, courts have uniformly condemned the “…disquieting history of Governmental laxity” in holding prompt preliminary hearings. US v. Green, 305 F.Supp. 125, 130-34 (S.D.N.Y. 1969).

In US ex rel Wheeler v. Flood, 269 F. Supp. 194 (S.D.N.Y. 1967), the court held that delaying preliminary hearings for two and one-half and three and one-half weeks after arrest until the Government had obtained indictments was unreasonable and that the defendants were entitled to release or a preliminary hearing.

See also           US v. Rogers, 455 F.2d 407 (5th Cir. 1972) (holding that the only remedy for denial of a prompt preliminary examination was release “prior to indictment”).

Rule 5(c) now provides that a preliminary examination, unless waived by the defendant, must be conducted within a “reasonable time” but in no event later than 10 days following his initial appearance upon arrest [FED. R. CRIM. P. Rule 5(a)] if the defendant is in custody, and no later than 20 days if he is not in custody.

Where the Government drags its feet in providing a preliminary examination a motion requesting a prompt hearing should be filed. The motion should set out the critical nature of such proceedings in the criminal process and that denial of such hearing would deprive the defendant of his Constitutionally protected rights to equal protection, due process and “fundamental fairness” guaranteed by the Fifth and Fourteenth Amendments (and violates Rule 5(c) where the prescribed period has not been complied with).

Another approach is to file a Petition for Writ of Habeas Corpus which would afford the defendant additional sworn discovery at the habeas hearing. US ex rel. Wheeler f. Flood, 269 F. Supp. 194 (S.D.N.Y. 1967).

Rule 5.1 specifically provides that the Magistrate’s determination can be based entirely upon hearsay evidence. Accordingly, the Government will often attempt to prove up probably cause using only their “case agent” who may be testifying entirely from written reports and without any actual knowledge of any of the events. This may supply some valuable information but it will be next to useless for impeachment purposes later at trial or at a pre-trial hearing. Therefore, prior to the hearing counsel should obtain from the prosecutor the names of all Government agents who participated and have first hand information regarding the facts of the case. If the U.S. Attorney is uncooperative, this information ought to be your first priority when questioning the agent who is brought to the hearing to testify. Once the names of these other witnesses are obtained they should be subpoenaed under Rule 17(a) and (b). courts have held that a defendant is entitled to call even potential witnesses against him in order to demonstrate that probable cause is lacking. Washington v. Clemmer, 339 F.2d 715 (D.C. Cir. 1964); US v. King, 482 F.2d 768 (D.C. Cir. 1973). And, the defendant could call such witnesses as defense witnesses since Rule 5.1(a) provides that the defendant “. . . may introduce evidence in his own behalf.” While you may be prohibited from cross-examining these witnesses you will at least be able to obtain discovery through direct, non-leading questions and thereby pin down, under oath, the story of those who actually witnessed the events and who will be called to testify at trial.

Rule 5.1(a) also provides that “[o]bjections to evidence on the grounds that it was acquired by unlawful means are not properly made at the preliminary examination.” It follows that since the primary concern of the defense is discovery, such objections should generally be avoided in order to obtain as much information as possible. However, where the Government’s only evidence to support probable cause was illegally obtained, counsel should object and request that he Magistrate require that the Government demonstrate the admissible evidence will be available at trial. Committee Note to FED. R. CRIM. P. Rule 5.1(a); US v. Umans, 368 F.2d 725 (2d Cir. 1966).

The Jencks Act’s requirement of the production of statements of Government witness for impeachment purposes has been held not applicable at preliminary hearing. MOORE’S FEDERAL PRACTICE: CRIMINAL 25.102[3].

Once probable cause is found then the Magistrate must fix the terms of pre-trial release, Rule 5.1(c), and defense counsel should address himself to considerations discussed herein regarding bail and pre-trial release.

With regard to a transcript of the proceedings, it will usually be up to the defense counsel to provide a court reporter, since Magistrates Courts now use tape recording devices which are poor substitutes for a stenographic transcript and provide no useful means of impeachment later at trial.

Appointed counsel should not attempt to have a stenographic transcript of the preliminary hearing provided under the Criminal Justice Act. The tape or other recording is simply inadequate and has proved extremely clumsy as a meaningful impeachment device. There is authority recognizing this need for adequate recording of the hearing.

“Recording of testimony at an early stage of the process perpetuates the fresh memory of witnesses, making it available n case of subsequent death, disability, flight and allowing impeachment or refreshing of recollection at trial.” Washington v. Clemer, 39 F.2d 715, 717 (D.C. Cir. 1964).

And it should be urged that it denies an indigent his Constitutional rights to due process, equal protection and effective assistance of counsel to deprive him of a meaningful equivalent of a stenographic transcript.

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