If there is one powerful tool in the defense of a criminal case that is more often overlooked than any other, it is the preliminary hearing. Too often defense lawyers advise their clients to waive their right to a preliminary hearing because they estimate the likelihood of success on the merits to be low. That should not be the deciding factor. Admittedly, the standard of proof at a preliminary hearing is a mere probable cause, i.e. whether it is "more likely than not" that the offense was committed. Nonetheless, in Ohio, Rule of Criminal Procedure 5(B) provides for the right to a preliminary hearing. Although the Ohio Rules of Evidence do not except preliminary hearings from the evidentiary rules and Crim.R. (5)(B)(2) references "the rules of evidence prevailing in criminal trials generally," the rules of evidence tend to be rather fluid during a preliminary hearing. But see, State v. Mitchell (1975), 42 Ohio St.2d 447. Still, the rule provides the defendant the full right of cross-examination. The burden of proof remains, however, only "probable cause."
Even with the revisions to the discovery procedures in Ohio Rule of Criminal Procedure 16 to provide more open discovery, there is no substitute for the opportunity to hear the investigating officers or possibly a victim testify live and subject to cross-examination early in the matter. Unlike some states, Ohio does not allow discovery depostions in criminal cases. That is to say, a criminal defendant does not have the opportunity to take the sworn deposition testimony of an officer or other witness in preparation for trial.
Heck, no witness - especially the police officer - is obligated to talk with the defense. And, candidly, they will typically be advised by the prosecutor or the prosecutor's victim advocate department not to speak with defense representatives. This is all the more reason an opportunity for a preliminary hearing mustn't be squandered. I personally can recall a number of criminal defense matters we handled which ended in an acquittal or conviction of a much less significant offense only - and I mean only - because we took the prelminary hearing. For instance, I can recall an officer testifying to a rape theory that was simply not supported under Ohio law leading to dismissal. Or a matter wherein an officer had previously testified at the preliminary hearing to what the victim had described during the investigation only to hear the victim testify differently at trial and the officer claiming he didn't recall either way. With the officer's preliminary hearing testimony, not only was the officer impeached, but so was the victim - only because we took the time to actually take the preliminary hearing.
Mind you, some court's make an effort to discourage the preliminary hearing due to the delays it might cause in a court's schedule. That said, absent a substantive reason for waiving the hearing, defense attorneys that advise clients to waive preliminary hearings are doing so at the client's peril. Unfortunately, if they don't take the preliminary hearing, they will never know how the client ultimately suffered. That might be the larger tragedy.
i was arrested on oct 12 2012. my preliminary hearing was set for oct 12. the courts cancled this date without informing me or my attorny. it was set for around two weeks later and continued. the next date was for three weeks later and this date was cancled just like the first. what if anything can i do about this? id like to sew! 2945.71 ohio revised code states (1) Notwithstanding any provisions to the contrary in Criminal Rule 5(B), shall be accorded a preliminary hearing within fifteen consecutive days after the person’s arrest if the accused is not held in jail in lieu of bail on the pending charge or within ten consecutive days after the person’s arrest if the accused is held in jail in lieu of bail on the pending charge;
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