Understanding Preliminary Hearings in Colorado: A Comprehensive Guide

A preliminary hearing is not a mini-trial. The rules of hearsay and other rules of evidence don’t always apply. In addition, the judge is only deciding whether there is enough evidence that the defendant committed the crime. It doesn’t matter if there was a defense to the crime, and affirmative defenses (like self defense) cannot be raised.

Key Takeaway: A preliminary hearing is your first line of defense. It filters out weak or baseless charges, saving you from the stress and cost of an unnecessary trial if you are not considering a plea offer.

Why Preliminary Hearings are Important

Think of a preliminary hearing as a safety net in the legal process. It’s designed to make sure you’re not being charged without good reason. During the hearing, you can challenge the prosecution’s evidence and test whether they have enough to establish probable cause. If they can’t meet this basic standard, the charges against you could be dropped.

But that’s not all. This hearing also gives both sides a sneak peek into each other’s strategies, which could lead to plea bargains or even dismissal of charges. For the prosecution, it’s a chance to fine-tune their case. For you, it’s an opportunity to gather information that could be invaluable during a trial.

Key Takeaway: Don’t underestimate the power of a preliminary hearing. It’s not just a formality; it’s a strategic part of your defense and could significantly impact the outcome of your case.

Who gets a preliminary hearing in Colorado?

Rule 5 of the Colorado Rules of Criminal Procedure sets out who is entitled to a preliminary hearing. The first question is whether the charge was brought by the prosecutor filing a felony complaint or if it was brought by a grand jury indictment.

There is no right to a preliminary hearing in a misdemeanor case or after an indictment has been returned. However, most felony charges are brought by filing a complaint. Then your rights depend on the type of charge and whether you are in custody.

If you’re accused of a serious crime like a high-level felony or a serious drug offense, you get to have a preliminary hearing if you demand one. This is for Class 1, 2, or 3 felonies or Level 1 or 2 drug felonies.

Also, if you’re facing a less serious felony but are still in jail for it, you have a right to a PH while you remain in jail. This applies to Class 4,5 or 6 felony crimes or Level 3 or 4 drug felonies.

If your case involves a Class 4, 5, or 6 felony or Level 3 or 4 drug felony, you may be entitled to a preliminary hearing even if you are out on bond. If your case requires mandatory sentencing, is a crime of violence, or is a sexual offense under part 4 of article 3 of title 18, C.R.S., you can demand a prelim.

The 35-Day Rule: Timing of Preliminary Hearings in Colorado

Requesting a Preliminary Hearing

In Colorado, the clock starts ticking as soon as you’re brought before the county court or a felony complaint is filed against you. Either you or the prosecutor have a 7-day window to request a preliminary hearing. In practice, it’s the defendant who requests the hearing.

The 35-Day Standard

Once the request is made, the court will act swiftly to schedule the hearing. The law requires the hearing to be held within 35 days of the request. This is commonly referred to as the “35-Day Rule.”

Exceptions and Extensions

While the 35-Day Rule is the general guideline, it’s not set in stone. If there’s a compelling reason—such as needing more time to prepare your case—the court may extend this period. It is very common to waive the 35-day rule and set the hearing a few months after the case has begun.

Som reasons to waive the 35-day rule include:

1. Discovery: Often you need additional time to receive and review the records in the case in order to prepare to cross-examine witnesses.
2. Plea negotiations: Because plea offers often go away or get worse after a preliminary hearing, you may want more time to see if you can get a better deal.
3. Calendaring:You really want your attorney to be prepared for cross examination, and that may mean asking for more time.

Key Takeaway: The 35-Day Rule is the new norm for scheduling preliminary hearings in Colorado, but it’s flexible. You have 7 days to request the hearing, which will then usually be held within the next 35 days, unless special circumstances warrant an extension.

The Process of Preliminary Hearing in Colorado

Navigating the criminal justice system can be complex, but understanding the process can help you prepare. Here’s a breakdown of the journey from request to hearing in Colorado:

Preliminary Hearing Setting

If you’re brought to court facing felony charges, the next step is demanding and setting a date for the preliminary hearing. This is a crucial decision point; you can either proceed with the hearing or waive your right to it.

Every county treats the court dates a little differently. In some counties, they have a court hearing called a “Demand Hearing.” Other counties call it a “Setting Hearing” or even an “Advisement Hearing.” The thing to know is that if you want to request a preliminary hearing, this is a good time to do it.

Most attorneys actually request a preliminary hearing when they file an Entry of Appearance into the case. This is when they tell the judge that they will represent you. It is a written filing allows them to appear on your behalf and receive notices from the court’s electronic filing system.

Preparing for the Hearing

Because of the time and effort it takes to prepare for a preliminary hearing, Colorado prosecutors often have a policy of “no deals” after hearing. (Whether they actually follow this is another question.) Because of the significant downsides of going to a prelim, the preparation for the hearing is one of the most important parts of a pre-trial case.

Both the prosecution and the defense need time to review the police reports and other evidence prior to the hearing. This information is called “discovery” and it may take a long time to receive and review. Without discovery, attorneys prepare for the hearing by reviewing preliminary documents like the affidavit that the police filled out when applying for an arrest warrant or when justifying a warrantless arrest.

At the same time, the defense is gathering information that they can bring to the prosecutor to convince them to reduce or drop the charges outright. This can include exculpatory evidence, or evidence that shows the defendant is not guilty. It can also include mitigation, which is anything in the defendant’s background or the extraordinary circumstances that the defendant faced that lead to these charges.

Generally, defense counsel will waive the 35-day rule in order to finish reviewing discovery and negotiating with the prosecutor if a plea offer is something they are considering.

The Hearing Itself

The hearing itself happens in County Court before a judge. It is not like a criminal trial where multiple witnesses each testify about their piece of the case, and a jury gives the defendant the benefit of the doubt. The district attorney doesn’t have to prove guilt beyond a reasonable doubt.

Instead, the judge usually hears from one witness (most often the arresting officer) who talks about what they know and what they have learned from others during the investigation. Hearsay is allowed, and defenses are not. Importantly, the judge is only allowed to consider the credibility of witnesses when, as a matter of law, the testimony is implausible or incredible. This means that witnesses are presumed to be telling the truth. Their believability is not usually something the judge decides.

• Prosecution’s Role: The prosecution will present their case, introducing evidence and calling witnesses to establish probable cause. This is their chance to convince the judge that there’s enough evidence to believe a crime was committed and that the defendant committed it.
• Defense’s Role: As the defendant, you have the right to challenge the prosecution’s case. Your defense attorney will cross-examine the prosecution’s witnesses and may introduce evidence to counter their claims. This is your opportunity to poke holes in the prosecution’s case and potentially get the charges against you dropped or reduced.

Possible Outcomes

• No Probable Cause: If the judge finds that there’s not enough evidence to establish probable cause, the charge against you may be dismissed.
• Probably Cause Found: If the judge believes there’s sufficient evidence, they will find that there is probable cause. The case will proceed to the next stage, which is usually arraignment in the district court.

Role of Your Defense Attorney

Having a skilled defense attorney by your side during a preliminary hearing is invaluable. The role of a defense attorney outside of the courtroom is almost more important than the role of the attorney at the hearing. Preparation and negotiation are key, and those can’t take place at the last minute.

Even though a preliminary hearing is one of the critical states in a criminal case, it is often waived by defendants. It’s important to have an experienced criminal defense attorney help you understand what your rights are in order for you to feel confident in your decision, whether it is to waive or not.

At the hearing, your attorney will cross-examine witnesses called by the prosecution. This can include getting the witness “on record” so it is easier to show that the witness has a “prior inconsistent statement” when they testify later in a jury trial. In rare cases, you may call defense witnesses at this stage.

Remember that the preliminary hearing is just used so that the judge can make a probable cause determination. It is not subject to many of the rules that ensure a person gets a fair trial, like presumption of innocence and the right of confrontation. An experienced defense attorney knows this and will use the hearing to gain advantages in the overall case, even if there is little chance of prevailing at the hearing.

Why You Might Choose to Waive a Preliminary Hearing

Choosing to waive a preliminary hearing is a significant decision that shouldn’t be taken lightly. However, there are specific scenarios where skipping this step could actually work in your favor. Here are some reasons why you might consider waiving a preliminary hearing:

Strategic Considerations

1. Strengthening the Prosecution: Going through a preliminary hearing can sometimes give the prosecution a “practice run,” making their witnesses more confident and better prepared for the actual trial. This could inadvertently strengthen their case against you.
2. Plea Bargains: If you’re in the process of negotiating a plea deal, waiving the preliminary hearing might be required to continue negotiations. Many prosecutors say that if you go ahead with the hearing, the prosecution may revoke all offers going forward. A plea deal may be significantly worse after a prelim than before.
3. Preserving Defense Strategies: The preliminary hearing can reveal your defense strategy to the prosecution. If you have a strong case, you might want to keep your cards close to your chest until the trial.

A Word of Caution

Even if you win the preliminary hearing and the charges are dismissed, it’s not always the end of the road. The prosecutor can refile the charge in the district court under certain conditions. According to Colorado law, refiling is permitted only upon showing why evidence was not presented at the prior preliminary hearing. This could be due to new or additional evidence that wasn’t known at the time of the original hearing.

Key Takeaway: Waiving a preliminary hearing is a complex decision that should be made in consultation with your defense attorney. It can have both strategic advantages and risks, so weigh your options carefully.

Possible Outcomes and Next Steps

It’s no secret that most criminal cases result in a plea bargain. That’s why most cases don’t go to prelim.

The most likely thing to happen in a felony case is that the defendant will waive a preliminary hearing so that they can preserve their ability to negotiate a plea agreement in the future. If that happens, the case is usually “bound over” to district court for arraignment or set for further proceedings like a dispositional hearing.

The next most likely occurrence is that the judge determines the prosecution has met its burden to introduce sufficient evidence and probable cause exists. The case will be set in district court for arraignment.

If the judge decides that there is no probable cause to support a charge, that charge will be dismissed. If you are charged with multiple things, or counts, then the case doesn’t automatically get dismissed. Charges where there was no preliminary hearing or where probable cause was found will still exist and will be set for an arraignment.

Frequently Asked Questions: Preliminary Hearings

1. What court handles preliminary hearings?
   • They are usually handled in the county court.
2. What evidence can be presented?
   • Both the prosecution and defense can present evidence and cross-examine witnesses.
3. Can I testify and call witnesses?
   • Yes, you have the right to testify and call witnesses to support your case.
4. Are preliminary hearings difficult to win?
   • They can be challenging, but success varies depending on the specifics of each case.
5. Do I have the right to an attorney during a preliminary hearing?
   • Absolutely, having an attorney is a very important right that you should take advantage of.
6. Should I waive my preliminary hearing?
   • Waiving a prelim is a decision made based on your case’s circumstances. It is a question best discussed with an attorney who represents you in the case.
7. If I win the preliminary hearing, can I get arrested again for the same offense?
   • Winning could lead to case dismissal, but certain circumstances might allow for re-arrest or re-filing of charges.

Why Choose Path Forward Legal?

Facing a preliminary hearing can be overwhelming. Having seasoned defense lawyers from Path Forward Legal can provide the support and expertise needed to navigate these challenging waters.

Our commitment is to ensure every client understands their rights and the legal processes they are navigating. Contact us today for a consultation and take a step towards a favorable resolution of your case.