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Preliminary Hearings in Colorado

By Colorado Criminal Defense Lawyer – H. Michael Steinberg – Colorado Preliminary Hearings Law

Preliminary Hearings are always held in the County Court of the relevant jurisdiction’s Court Justice Center. H. Michael appears with you. If the case actually proceeds to a preliminary hearing – a brief hearing to determine if there was “probable cause” for the “Complaint” is held. You will not testify at that hearing and the Prosecutor cannot call you as a witness. In fact it is very rare that the defense presents any evidence at all.

A preliminary hearing is limited to matters necessary to a determination of probable cause. The rights of the defendant are curtailed and typical “trial” evidentiary and procedural rules are relaxed. The rights to cross-examine witnesses and to introduce evidence are limited to the question of probable cause.

A defendant has no constitutional right to unrestricted confrontation of witnesses and to introduce evidence at a preliminary hearing. By rule, defendants have the right to a preliminary hearing under certain circumstances. The law permits a defendant to ” cross-examine witnesses against him and may introduce evidence in his own behalf.’ Colorado Crim. P. 7(h)(3). However, the preliminary hearing is not intended to be a mini-trial or to afford the defendant an opportunity to effect discovery of the State’s case.

Additionally, the judge’s findings at a preliminary hearing are restricted to a determination of probable cause. A judge does not and may not engage in credibility determinations unless the testimony is incredible as a matter of law.

Testimony is “incredible as a matter of law” if it is “in conflict with nature or fully established or conceded facts. It is testimony as to facts which the witness physically could not have observed or events that could not have happened under the laws of nature.”

This finding of “incredible as a matter of law is exceptionally rare. The Defense lawyer is often prevented from going deeply into motives to lie – for example or to engage in other credibility inquiries by the Judge. Thus, the right to cross-examination may be curtailed by the judge in all but the most unusual circumstances.

Because credibility is not at issue and probable cause is a low standard, once a prima facie case (a very basic case) for probable cause is established, there is little defense counsel can do to show that probable cause does not exist. As a practical matter, some defense lawyers do not extensively cross-examine witnesses at the preliminary hearing, understanding that the cross-examination.

Thus the fundamental opportunity for cross-examination at a preliminary hearing is limited and the opportunity for cross-examination regarding the credibility of a witness, as a matter of fact, is even further curtailed by most judges.

The Far More Common “Use” of the Preliminary Hearing in Colorado

The far more common use of the PH, is the first sincere “arms length” negotiations to try to achieve a “Plea Agreement.” An offer by the DA is usually met with several rounds of “back and forth” between the lawyers who start the process to work closer and closer to a “waiver” of the hearing for the “right” plea bargain offer.

If an offer is made that supports a “waiver” of the PH in the opinion of H. Michael – he will recommend a waiver of the PH. Sometimes no offer makes sense – but further positive negotiations make sense, then H. Michael will recommend that the client “waive” the right to a PH. A waiver then occurs and the case is “bound over” and is sent from County Court to District Court on the next court date – this is called the Arraignment. Almost ALL PH’s are waived (some 95%) and bound over to District Court.

Client Reviews
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"Mr. Steinberg provided my family with expert handling of my son's case. He took extra time understand the case, to consult with us during the pretrial proceedings, and to support him for a plea agreement. Mr. Steinberg is very knowledge about the law and very professional. He guided us in achieving the best possible outcome for my son. If I am ever in need of law services again, I will certainly have Mr. Steinberg handle my case. l also highly recommend his services to anyone that might be in need of an excellent defense attorney!" Tanya Witt
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"I found myself in criminal trouble, that I wasn't guilty of and thanks to Mr. Steinberg's dedication and hard work, right before we we're looking at having to continue on to trial level Mr. Steinberg was able to use his vast knowledge of the law and his many respected years in the system to find a way to show my innocence. After a very unsure and somewhat difficult time for me, this very skilled and knowledgeable attorney was able to find the right path to take to reach a dismissal in my case. For that I can't tell you how much I appreciate his representation and his excellent understanding and helpful personality. He's a great man and an even better attorney but don't misunderstand him, he is an attorney not a therapist. Thanks H." Josh
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"Working with Michael Steinberg was a wonderful experience. Truly people need to know that he is a expert in what he does. His personality is compassionate, intellectual, and down to earth. I glean that Michael is fun to be around. In the time I worked with him, it was a pleasure to be around him. As for my case, the outcome was amazing and couldn’t be better. He has made my life more manageable because of the outcome of my case. I’ve worked with other lawyers in the Denver area. He is superior to them all. If you’re in need of a lawyer and you come across Mr. Steinberg look no further he’s going to be the one you need. Thank you again Michael." Renee Taylor