Preliminary Hearings

 Nearly every case charged in Maryland starts out in District Court. Even a homicide charge or very serious rape charge starts in the District Court. If a defendant is charged with a felony, then the defendant has an absolute right to a preliminary hearing. A preliminary hearing is a process where a District Court judge will listen to evidence presented by the state’s attorney’s office to determine whether there is enough evidence for the case to continue to the Circuit Court. In other words, the judge must determine whether the allegations could have occurred.  What is the real purpose of a preliminary hearing, and does it do any good? The answer is unequivocally yes. I’ll give you two examples.  Suppose you live in a small town in Maryland. You grew up in a situation where the local sheriff didn’t like your family or had some problem with you individually. The sheriff has harassed you for a long time, and then he charges you with false crimes for personal reasons. Who can stop him?  The preliminary hearing is designed to prevent abuses of police power and careless use of state authority. If there is a probability or even a hint of evidence that an incident could not have occurred, then the District Court judge at the preliminary hearing should dismiss the charges. Here is another example. I had a case in western Maryland where a defendant was charged with very serious drug distribution charges. The drugs involved were worth hundreds of thousands of dollars. The state had not yet indicted, so we had a full preliminary hearing. Remember that at the preliminary hearing, the state’s attorney’s office must present evidence, but the defendant cannot present evidence nor testify. However, her attorney can cross-examine the state’s witnesses to determine whether there is probable cause that a crime was committed. In this particular situation, the state presented a senior police officer who had investigated the charge. The officer testified that he had recovered a large amount of narcotics in the defendant’s home. The officer spent a considerable amount of time talking about how it was discovered and what the result was. Finally, the state was obligated to present the fact that the alleged narcotics were actually a controlled dangerous substance prohibited by the state of Maryland. In other words, they had to show lab results that proved the drugs were illegal.  After a lengthy cross-examination about how and where this occurred, I asked a few simple questions about the type of drugs. I analyzed the lab results and noticed the lab report said all the narcotics were heroin. But the officer had testified that the drugs recovered were cocaine. Because this officer categorized the drugs differently from the lab result, we achieved a complete dismissal of the felony charges! That example is rather simple, but there are many others. I often handle domestic violence cases where the state has charged the defendant with first- and second-degree assault. When a person is charged with multiple counts in District Court and some of them are felonies, only those felonies are subject to the preliminary hearing review.  The difference between first-degree and second-degree assault in Maryland is very important. In simple terms, for the state to prove the elements of first-degree assault, the state must show that it was a very serious assault. Usually a weapon is involved, or some sort of choking which puts the victim close to paralysis or death. Second-degree assault in Maryland is simply an unlawful touching, which can be serious but usually is not life-threatening. This particular defendant was charged with first-degree assault and, after cross-examining the police officer, I showed that there was no serious possibility of death, even though some strangulation had occurred. Based on that, the felony first-degree assault charge was dismissed. 

In these instances of multiple counts which include felonies, the case stays in District Court if the felonies are dismissed at the preliminary hearing. If the hearing finds probable cause, then the case and all its “tag along” misdemeanors will be moved to the Circuit Court.  The “criminal information” method of charging someone is rare, but it gives the state the ability to have the case put directly to the Circuit Court to get more leverage. A very common strategy of the state’s attorney’s office is to simply indict the individual prior to the preliminary hearing if it believes the defendant may have a chance of getting rid of the felonies. That puts the state in a situation where they have more leverage at the Circuit Court, because the felonies are still alive and the defendant must deal with all the charges.  A defendant and her lawyer need to determine whether or not the case has a chance of staying in the District Court. If it does not, and it proceeds to the Circuit Court, the lawyer needs to understand what strategies can be used. To avoid unpleasant surprises for the client, lawyers need to know about the judges’ and prosecutors’ habits in certain cases, and also have a deep understanding of each charge and element..