The preliminary hearing is least likely to occur of any of the hearings in an Iowa criminal prosecution followed closely only by the arraignment.
The rules of criminal procedure allow and require a magistrate to schedule a “preliminary hearing” within 10 days of initial appearance if in custody or 20 days if the defendant is out of custody.
This hearing can and is typically waived by counsel in, for example, indictable misdemeanor offenses. Experience dictates that an attorney who insists on a preliminary hearing is likely to show up and be handed a written indictment, or, trial information and minutes of testimony, which moots and cancels the preliminary hearing. In most cases, counsel for the defendant will waive it due to its limited value.
Reliable hearsay is admissible in a preliminary hearing and constitutional objections are considered premature, to be filed much later in the case.
The best way to describe a preliminary hearing is that it is an anachronism—a creature of the criminal rules that has not yet been excised in the interest of judicial economy, even as magistrates routinely schedule the hearings, defense counsel waive them, and prosecutors are left with the option of simply filing a document that they will file anyway, except slightly earlier, only to speed the prosecution.
Even if an ambitious defense lawyer hopes to glean a magic bullet by insisting on a preliminary hearing—and a judge holds a hearing instead of leaning on a prosecutor to timely file an indictment thereby cancelling the preliminary hearing—the record is not automatically available to the defense for later use unless good cause is shown.
Moreover, where the prosecutor ignores the deadline to timely file the trial information to cancel the preliminary hearing before the 10 or 20 day deadline and defense counsel hasn’t waived the preliminary hearing, the remedy is neither release nor dismissal. It’s simply to request the preliminary hearing be held—likely to result in the aforementioned, hastened trial information (indictment).
If release past the 10 or 20 day deadline for preliminary hearing is the goal, a separate lawsuit must be filed. This is also likely just to speed the filing of an indictment instead of resulting in the dismissal of a prosecution.
Everyone knows it must be scheduled per the rules, but everyone also knows it will inevitably be waived or cancelled unless the prosecutor is asleep at the switch. Even in the unlikely scenario that a prosecutor fails to file a trial information prior to a demanded preliminary hearing—and that hearing fails to convince the judge that probable cause exists to proceed to trial—dismissal doesn’t prevent the prosecutor from refiling the charge and having the defendant rearrested, only to post bond again if in custody.
The preliminary hearing is, for lack of a better analogy, like an ordinance still on the books in the age of the automobile requiring saloon patrons to hitch up their horses—never repealed, but nonetheless completely outdated and disused.
If you or a loved one has been arrested for a criminal offense in Cedar Rapids, Iowa, or other Iowa community, contact David A. Cmelik Law PLC.
However, remember that a blog is not legal advice and that sending unsolicited information to a lawyer over the Internet does not establish an attorney-client relationship.
First things first...again the Iowa Rules of Criminal Procedure may seem both confusing and duplicative with regard to the initial appearance and the preliminary hearing, but they are simpler than they first appear. At initial appearance, an arresteee in a Cedar Rapids, Iowa, criminal prosecution will appear before the judge and the judge will set another court date called a preliminary hearing typically within 10 days if the defendant is out of custody and 20 days if he or she is in jail. The preliminary hearing is likely to be waived by defense counsel or cancelled by the judge if and when the prosecutor files a formal, criminal lawsuit called a "trial information." You may have heard of the trial information described as an "indictment" which is the formal charge against the defendant. If waived, the preliminary hearing won't require the prosecutor to speed up the prosecution-- thereby giving defense counsel and defendant valuable time to defend the case. In any event, the prosecutor must have the indictment on file within 45 days of the initial appearance. If you or a loved one has been arrested in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, contact David A. Cmelik Law PLC for a free initial consultation today at 319-389-1889.
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