I just returned from a meeting of the Idaho Criminal Rules Committee during which we considered a question posed by a Magistrate Judge: Why do we waste valuable court time with preliminary hearings? Couldn’t we just eliminate them and reduce the court’s work? Sure – and maybe we should just get rid of those nagging, time consuming jury trials! Seriously though, what is the point of the preliminary hearing, at which a Magistrate Judge determines probable cause, when in reality that has occurred already in the process. The Committee uniformly agreed that the preliminary hearing serves several very important purposes. First, it allows the Defendant an opportunity to contest the allegations against him for the very first time. His (or her) lawyer can cross-examine and confront witnesses on whose statements were relied for the initial probable cause determination. You don’t get that opportunity with a "secret Grand Jury." Second, it allows the lawyers and the Defendant an opportunity to talk about the case and the evidence. We almost always have an offer to settle the case at the preliminary hearing – so it serves to bring the parties together as if to potentially mediate the matter. Third, the preliminary hearing allows the Defendant a chance to consider the bail set initially, and present evidence why bail should be reduced. That is vital to the Defendant, who is often still in jail! So the preliminary hearing is an important part of due process – and the Magistrate who posed the question will likely be unhappy to hear that we all agreed, and by all, I mean the judges, magistrates, prosecutors, public defenders and private counsel on the committee. The preliminary hearing will continue to be the first chance for a defendant to prove his or her case. I know – the defendant does not have to prove anything! Nice theory! Let’s talk about that soon. If you are facing a felony charge get ready to start winning your case at the preliminary hearing – still coming to a courtroom near you!