I was in court yesterday for a preliminary hearing. Most lawyers say that prelims are a waste of time. To a large extent I agree: The burden of proof is ridiculously low; hearsay testimony is not only allowed, but encouraged; and the defense can’t put up any evidence. Why bother?
We bother because sometimes there is no case. A prelim is a good way to get the case dismissed. There are other good reasons. Sometimes you get a case and the State’s evidence just doesn’t make sense. That’s as good a reason as any for a preliminary hearing.
Preliminary hearings are held in Horry County on Friday mornings. All cases are noticed for 8:30 and the judge usually starts at 9:00. There is no particular order in which the cases are called. I like to think of it as a secret, yet arbitrary method of calling the docket. No one complains, nor should they. Someone has to go first and someone has to go last.
Anyway, I’m sitting in the courtroom waiting for my client’s case to be called. A police officer is testifying about some particularly gruesome event. Other police officers, defense lawyers, clients, family and friends are milling about. No one is paying much attention. It’s a typical day in the criminal court system.
From the witness stand I hear the following: I applied the term loosely.
I stopped what I was doing. I looked up at the witness and over to the judge. It was cross-examination. I glanced at the prosecutor and I looked around at the other lawyers. Maybe I didn’t hear it right.
Criminal defense lawyers develop a sense or a feel for certain words. Maybe it’s a type of radar. Usually it alerts us when the prosecutor is asking about hearsay or other objectionable evidence. Sometimes though it alerts us to a word used by the witness.
Turns out that I did hear it right and so did the defense lawyer in that case. He heard it and he hammered on it. It was the turning point in the case. That “term” was a statutory definition. It defined who could be charged with this crime. The defendant did not fit the definition. There were codefendants charged with this crime. They fit the definition. The case against this defendant should be dismissed.
Was that preliminary hearing a waste of time? Maybe it was because the charge didn’t get dismissed. Maybe it wasn’t because the defense now has some pretty good evidence. Sometimes that is all you can hope for at a prelim.
In the meantime though, the case is not dismissed. It’s just hanging on – loosely.