Alabama criminal procedure allows persons arrested on a felony warrant to have a preliminary hearing. A preliminary hearing is to be requested by your criminal attorney within 30 days of your arrest. As a practical matter, many counties in Alabama automatically set preliminary hearings on all felony arrests, but this does not apply in all counties. If you want a preliminary hearing in Alabama, you should make sure it is requested within the proper time period.
After you have requested a preliminary hearing, it should be set within 21 days. However, if it is not set within 21 days, a criminal defendant’s recourse is simply to be released from the county jail, unless they are charged with a non-bailable offense, such as capital murder. If they are charged with a crime not subject to bail, the presiding Circuit Judge is to be notified and is to set a preliminary hearing immediately.
A preliminary hearing is not available for arrests on violations or misdemeanors, only on felonies. Preliminary hearings are heard by the District Court Judge in the Alabama County in which you were arrested. Typically, the State of Alabama will only call the arresting officer to testify at the preliminary hearing because “hearsay” evidence is admissible in this type of proceeding. Therefore, the prosecutor will call the arresting officer or investigating officer to relay to the Court all of the evidence that has been gathered. On occasion, usually in more serious cases with an incarcerated defendant, the State will call additional fact witnesses to establish the identity of the defendant or to ensure the Court finds probable cause.
The preliminary hearing is not held in an effort to determine guilt or innocence. The hearing is simply for the District Court Judge to determine whether probable cause exists to forward your felony case to the County Grand Jury. There is not a State provided court reporter present for preliminary hearings, so if you want to have a criminal preliminary hearing recorded and transcribed, you have to make arrangements for a court reporter to be present.
If the Court finds probable cause, then they will “bind over” the case to the Grand Jury. If your case is dismissed at preliminary hearing, that does not mean your case is over. While it will not be “bound over” to the grand jury, the District Attorney can still present the case to the grand jury if he chooses. This means the grand jury can still indict you, even if the District Judge dismisses your case at preliminary hearing.
Many criminal attorneys have preliminary hearings in certain cases in an effort to obtain discovery in their clients criminal case, knowing that judges very rarely dismiss cases at preliminary hearing. However, all judges are aware of this practice and usually try to limit a criminal attorney’s ability to question witnesses at the preliminary hearing on evidentiary issues such as suppression based on an illegal search.
Many District Attorney’s, in an effort to reduce the amount of time their prosecutors spend in preliminary hearings, have resorted to providing “open file discovery” if criminal defendants will waive their preliminary hearing. This means, the criminal attorney representing the accused will have open access to the District Attorney’s file. This can often be useful as the criminal attorney can then get access to reports that are otherwise not discoverable under Rule 16 of the Alabama Rules of Criminal Procedure.
Our criminal attorneys at Boles Holmes White look at each case individually to determine the necessity of a preliminary hearing. If the case is weak, and our client is incarcerated, we will likely demand a hearing on the hopes of getting the case dismissed and our client released from jail. If our client is not in custody, we evaluate whether a preliminary hearing is useful to our case based on a number of factors such as 1. Strength of the case; 2. The judge presiding over the preliminary hearing; 3. The evidence we feel we can obtain from the preliminary hearing; and 4. Whether we feel we can convince the District attorney to drop the charges by having a preliminary hearing, or whether we feel the case will be presented to the Grand Jury regardless.
In come cases, preliminary hearings can be useful. In others, they can be useless. It is usually best to rely on an experienced criminal attorney to advise you whether a preliminary hearing in Alabama is in your best interest.