Consider Your Plea Offers before Waiving a Prelim
Video Transcribed: Hi, this is Stuart Erickson, Wagoner lawyer. Today, we’re going to talk about preliminary hearings and whether to waive them or not.
Now, a waiver means to give something up. Every defendant in a criminal felony case has a right to a preliminary hearing, which is a probable cause hearing to show two things. One, that a crime was committed, and two, probable cause to believe that the defendant committed it. So it’s not a full-blown jury trial, but it is a threshold level to justify the state making you ultimately stand for a jury trial on a criminal allegation. So the question becomes, a lot of times, “should I exercise this right? Do I waive prelim or do I have the prelim?” So a lot of considerations into that. A lot of it is, “do we have all of the discovery or enough of the discovery to know what the state’s facts are?”
So when they give a plea offer, so let’s say a defendant’s in a position where they know they did it, they know they committed the crime, and they know that the state has very good evidence against them, that they’re going to get bound over and a jury trial is a bad idea. So if the state makes their offer, and in that situation, if you know you’re going to take the plea bargain, you’re going to waive the prelim and then, just set it for a plea and be done with your case and get your probation or whatever you’re going to get, so you can move on.
Sometimes, another reason to waive prelim or consideration of it is if you have a pretty serious offense, but for some reason, let’s say, the state offers a very good plea offer, a very good plea bargain offer. So sometimes, you might want to waive the prelim to preserve that plea offer, because many times, the state of Oklahoma or the prosecutor will say, “Hey, if we put on this prelim if you don’t waive it, this plea offer goes away. I will withdraw that offer, and that offer is no longer on the table.”
So it’s a consideration if there is a very good plea offer that you’re considering taking or if you want to remain, as you think about this. Sometimes, that’s a way or a reason to waive. Now, a reason you wouldn’t want to waive prelim is if you pretty much know for sure that you’re not going to take the plea bargain, you are either hoping for dismissal after prelim or for a motion or just flat out from a jury trial an acquittal, then you really would want to put on the preliminary hearing and not waive it.
The benefit of that is, you get to preview the state’s case a little bit. You get to see the witnesses. Some of the witnesses will have to come in. You can see what their testimony is. Their testimony will be locked in, because of course, at a preliminary hearing, me, the defense attorney, gets to cross-examine the witnesses.
So their stories are kind of locked in. So if the time comes for a jury trial and they want to change their testimony to make the state’s case better in some way, I would have that preliminary hearing transcript. I would have it, and I could refer back to that and say, “Back on such and such a day, you testified at the preliminary hearing, isn’t that true?” And “yes.” “Well, isn’t it true today you just testified to X, and at this preliminary hearing, you testified differently?
Why did you testify differently?” And then, all of a sudden, in the jury’s mind, they’re debating, “is this person a truth teller or not?” So that would be one reason to not waive your prelim if you know you’re going to fight the charges. If you’re not going to fight the charges, then there can be many benefits to waiving your prelim. But as with everything, it’s a case-by-case decision. There are usually some pros and some cons, and that’s where the client, the defendant, and the defense attorney, me, would really talk and discuss and decide what’s the best route, what’s the best path. So that’s some of the issues with the preliminary hearing and whether to waive or not.
If you have any more questions about that, reach out to me, Oklahoma criminal defense attorney Stuart Ericson at wagonerlawyer.com.
