In McKeldin v. State, 516 S.W. 2d 82 (1974), Justice Joe Henry of the Tennessee Supreme Court stated, "Every criminal lawyer's 'worth his salt' knows the overriding importance and the manifested advantage of a preliminary hearing. In fact, the failure to explore this golden opportunity to observe the manner, demeanor, and appearance of the witness for the prosecution to learn the precise details of prosecution of a case, and to engage in a happy event sometimes known as a 'fishing expedition' would be an inexcusable dereliction of duty, and the majority of cases."
Jerry Summers believes it is legal malpractice to waive a preliminary hearing in General Sessions Court...except under extraordinary circumstances.
The United States Supreme Court in Coleman v. Alabama (1970) and the Tennessee Supreme Court in McKeldin have both held that a hearing in a lower court "is a critical stage of the judicial proceedings" wherein the accused is entitled to the effective assistance of counsel and other constitutional guarantees.
Why then are so few preliminary hearings insisted upon by defendants and their attorneys in lower courts? Here are some of the reasons that are often heard or submitted to justify waiving a preliminary hearing and a counter argument:
1. Reason given: They are usually held at the end of the dockets and they are time consuming.
S&W response: So is a sentence in jail and a lawyer should take the time necessary to provide the client effective assistance of counsel.
2. Reason given: With the Tennessee Rule of Criminal Procedure 16, we can get the discovery evidence in Criminal Court.
S&W response: Said evidence is not obtained while it is fresh, and the Assistant District Attorney has many cases on the docket and said prosecutor in General Sessions Court is normally concerned about getting the case bound over to the Grand Jury in the lower court rather than spend a long time preparing for only one case in Criminal Court several months later.
3. Reason given: "It is going to be bound over to Criminal Court anyway unless the accused pleads guilty."
S&W response: Pinning the officer's testimony down by having it recorded prevents later deliberate or inadvertent changes in testimony that might be significant on a motion to suppress or in trial.
4. Reason given: The officer's affidavit states all the relevant facts.
S&W response: Any facts that benefit the accused such as the basis and reason for the stop, performance on a field sobriety test, medical information for the accused's actions, etc., are not usually put in the affidavit, but can be examined at the preliminary hearing. The officer can be examined at the preliminary hearing to refute the State's evidence and develop a reason for further settlement or trial negotiations in Criminal Court.
5. Reason given: It is just a misdemeanor and doesn't justify spending a lot of time and money on such a minor case.
S&W response: A review of the Tennessee penalties for DUI in the "Collateral Consequences of a DUI Arrest for Conviction" on our website blog above clearly refutes this.
6. Reason given: The District Attorney General isn't going to allow the defendant to settle their case on a reduced charge in the lower courts.
S&W response: This is probably true, but obtaining vital photos and other evidence early on before it is destroyed may prove critical to the accused's defense. A preliminary hearing is the first official court proceeding for a DUI charge or other criminal offense to observe the State's case.
7. Reason given: The accused looks bad on the video and the field sobriety test, and blows over the presumption of intoxication level of 0.08 BAC, so why waste time on these issues?
S&W response: A presumption can be refuted by other favorable evidence, and videos of the defendant in the jail and the EC/IR II breath machine rooms can be obtained at minimal cost within thirty days from the date of arrest, and can be used to contradict or refute the arresting officer's testimony.
P.S. - The Hamilton County Sheriff's Department keeps tapes for only thirty days and you should check with any law enforcement agency using the jail or another facility as to their tape retention policy.
These are only seven erroneous reasons for waiving a DUI preliminary hearing. Many more exist, which should be explored with any attorney you're considering to hire you in a DUI or other case.