Monthly Archives: January 1971

1971: The Preliminary Hearing in Los Angeles: Some Field Findings and Legal-Policy Observations, Part 2 (with Kenneth W. Graham), Part 2, 18 UCLA Law Review 916-61 (1971) – OCR

FORMATTED PDF: 1971 – The Preliminary Hearing in Los Angeles – Some Field Findings and Legal-Policy Observations, Part 2 (with Kenneth W. Graham), Part 2, 18 UCLA Law Review 916-61 (1971) – OCR

18 UCLA L. Rev. 916 1970-1971




Kenneth Graham* and Leon Letwin**

In the first part of this Article, which appeared in 18 U.C.L.A.

Law Rev., Issue 4, the screening functions of the preliminary hearing

were considered. The Article continues here with an examination

of the collateral functions of the preliminary hearing, some of which

have become as important as the screening functions.



The preliminary hearing serves six main collateral functions

which will be analyzed in the following order: a discovery device,

a substitute for full trial, a mechanism for determining the legality

of detention, a forum for constitutional adjudication, an occasion

for plea bargaining, and a foundation for guilty plea and sentencing.

4 14

  1. Discovery

The preliminary hearing provides the defendant with his most

important discovery opportunities.4 15 This proposition requires

analysis from three perspectives. First, the preliminary hearing is a

significant part of the pleading stage in California criminal cases.

Second, it is an important occasion for informal discovery, particularly

through the inspection of writings and physical evidence in

the prosecution’s possession. Third, it is a makeshift form of criminal

* A.B. 1957, J.D. 1962, University of Michigan. Professor of Law, University of

California, Los Angeles; Member, California Bar.

** Ph.B., University of Chicago, 1948; LL.B., University of Wisconsin, 1952;

LL.M., Harvard Law School, 1968. Professor of Law, University of California, Los

Angeles; Member, California and Wisconsin Bars.

414 Compare the functions suggested in Note, 51 IOWA L. RaV. 164, 173-76

(1965). The author argues that the requirement of prosecutorial approval for a

waiver of the preliminary demonstrates the hearing is not devised solely to save the

defendant a needless prosecution and is evidence that at least some of the collateral

functions are more than just by-products of the bindover decision. Id. at 171. See


415 See, e.g., 5 Am. JuR. Trials § 33 (1966); CRImINAL DEFENSE TECHNIQUES

  • 8.05 (R. Cipes ed. 1970); CONT. EDuC. BAR, CAL. CRIM. LAW PRACTICE § 6.5


— 18 UCLA L. Rev. 916 1970-1971


deposition that may be used in connection with the subsequent


  1. The Preliminary Hearing as Part of the Pleading Stage

California statutes authorize the prosecution to file criminal

pleadings as vague and non-specific as the familiar “common counts”

used in civil cases. 1′ Both the complaint, which forms the basis of

the magistrate’s jurisdiction to conduct the preliminary hearing, and

the information, which is the jurisdictional document for the felony

prosecution thereafter, will typically furnish no more than the date

and county of the offense and a description of the offense set forth

in the statutory language. Without more, one may doubt whether

these pleadings comply with the constitutional mandate that the

defendant be “informed of the nature and cause of the accusation. 4 1 7

However, the California decisions make clear that the complaint

and the information are only part of the pleading mechanism. 418 The

details which these documents do not supply are provided by the

testimony given at the preliminary hearing. A transcript of that

testimony must be provided at public expense to each defendant at

the time of his arraignment in Superior Court. Since the requirement

of probable cause forces the prosecutor to disclose more detail concerning

the offense than is commonly provided in criminal pleadings

in other jurisdictions, the California defendant receives detailed

notice without the need to launch an attack on the pleadings or to

file a bill of particulars.

  1. The Preliminary as an Occasion for Informal Discovery

A series of decisions by the California Supreme Court have

granted criminal defendants substantial rights to inspect writings

and physical evidence in the possession of the prosecutor.419 It is

not necessary to examine here those decisions or to analyze their

effectiveness, a task well performed by other writers.42

” Rather, we

are here concerned with the operation of these rights at the time of

the preliminary hearing.

416 CAL. PENAL CODE § 949 (West 1970).

417 U.S. CONST. amend. VI.

418 People v. Hinshaw, 194 Cal. 1, 8-10, 227 P. 156, 159-60 (1924).

419 People v. Cooper, 53 Cal. 2d 755, 769-70, 349 P.2d 964, 972-73, 3 Cal.

Rptr. 148, 156-57 (1960); Vance v. Superior Court, 51 Cal. 2d 92, 330 P.2d 773

(1958) ; Powell v. Superior Court, 48 Cal. 2d 704, 312 P.2d 698 (1957).


IN CRIMINAL CASES (1963); Traynor, Ground Lost & Found in Criminal Discovery,

39 N.Y.U.L. REV. 228 (1964). A useful general bibliography will be found in L.


— 18 UCLA L. Rev. 917 1970-1971


The reported decisions do not establish whether the rights of

discovery available at or before trial come into play as early as the

preliminary hearing. In Los Angeles, however, this is of limited

significance since the general policy of the District Attorney is to

grant a rather wide access to information in his possession without

the requirement of a formal motion. This policy applies at the

preliminary hearing.

Since the deputy district attorney assigned to the preliminary

hearing typically knows nothing about the case except for what

appears in the file and what he may be told by the officers at the time

of the preliminary hearing, the most important avenue for defense

discovery is through access to the prosecutor’s file.

The file contains a record of the defendant’s prior convictions,

a copy of the complaint, the police arrest report (a narrative statement

by the arresting officer as to the events leading up to the arrest

and the officer’s observations), property reports, and a summary of

the facts and of the witnesses’ anticipated testimony prepared by the

complaint deputy for the use of the prosecuting deputy.

A deputy district attorney described his office’s policy regarding

disclosure of the file in the following manner:

The district attorney makes his file completely available to the

public defender. There is nothing secret kept in the possession of the

district attorney. Nothing is withheld.42 ‘ We follow a similar practice

with respect to most private attorneys. However, if the attorney is a

crook, we give him nothing and make him present formal discovery


If there is a problem of secrecy, it is not that the district attorney

withholds information from the defendant, but rather that the police

sometimes withhold information from us. This happens where there is

a civil liability feature involving the police. For example, if a police car

were involved in an accident . . . the police know anything they give us

will be given to the public defender or other private counsel when the

file is turned over to the defense for inspection.

The cooperative attitude of the prosecutor referred to in this quote

is no doubt reinforced by the fact that much of his file would be

discoverable in any event.

Discovery of the file contents at the preliminary is truly “wide

open,” at least when the defense counsel is from the public defender’s

421 A deputy public defender observed, however, that some of the reports in

the prosecutor’s file are cursory and incomplete. He stated, “You just don’t know

what really happened until the officer gets on the stand and starts talking. But I

don’t think this is out of any effort to keep information from you. It’s simply the

way the report was written.”

[Vol. 18: 916

— 18 UCLA L. Rev. 918 1970-1971


office. It was quite common to see him simply walk to the prosecution’s

end of the counsel table and pick up the file without any attempt

to obtain permission. Moreover, although some supervisors

in both offices referred to an understanding barring defense counsel

from access to the notes of the complaint deputy (arguably his

“work product” and therefore not formally discoverable), we saw no

attempt to enforce this limitation. Several deputy public defenders

told us this was the first item in the file they examined. Private

counsel, on the other hand, said they often had difficulty obtaining

access to the file at the preliminary and were not convinced that they

fell within the category of “crooks,” referred to in the quotation


The relaxed attitude toward the file did not, however, extend

to other attempts at informal discovery at the preliminary. Attempts

by more ambitious defense counsel to elicit additional information

from the investigating officers were generally frustrated by the usual

laconic attitude of officers toward the defense. In addition, both the

officers and the prosecutor were quick to intervene when the defense

lawyer tried to interview prosecution witnesses present at the preliminary.

Though it is doubtful that there is any legal basis for this

proprietary attitude of the prosecution toward its witnesses, we

observed no defense efforts to challenge it by formal discovery motion

at the preliminary hearing. Perhaps in return for informal

access to the file, the defense de facto surrenders whatever formal

rights of discovery may exist at this stage.

It is surprising that there is not more formal discovery at the

preliminary hearing. If one accepts the emphasis of the litigator’s

lore upon the importance of early access to the facts, one would suppose

that defense counsel would push for other forms of non-testimonial

discovery beyond the mere contents of the file at the earliest

possible point. Furthermore, the preliminary hearing is a particularly

appropriate occasion for doing so because it is one of the few places’

in the process where the investigating officer is readily available to

supplement the file. If the defense moves for discovery at other

times, it is handicapped because the prosecutor usually does not

know anything that is not in the file and can honestly frustrate

discovery efforts by pleading ignorance.

From the standpoint of the public defender, however, even

what little is learned outside the file by the deputy at the preliminary

is largely lost to the defense. The deputy public defenders make

no effort to preserve the fruits of discovery at this stage-by making a

formal notation in the defense file when and if one is prepared.

Hence, anything learned is preserved only if it is reflected the


— 18 UCLA L. Rev. 919 1970-1971


questioning of the witnesses and hence in the liminary. transcript of the pre-

  1. The Preliminary Hearing as a Criminal Deposition Mechanism

The preliminary hearing as a discovery tool is a mechanism by

which the defense and prosecution can: one, formally interrogate

witnesses to discover what information they have, and two, preserve

that information for possible use at the subsequent trial. In other

words, the preliminary hearing serves as a substitute for that deposition

mechanism which is readily available in civil cases but provided

only under rare circumstances on the criminal side.422

  1. “Discovery” of Evidence. This aspect of the preliminary

hearing is of more significance to the defense than to the prosecution.

It provides the defense with the opportunity to elicit information

and evidence in the possession of the prosecution’s witnesses.

Discovery may aim at uncovering information that is inadmissable

as evidence in the hope it will provide useful leads for trial

preparation. Such discovery is not regarded as a legitimate object of

the preliminary hearing. There is no generally recognized right, as

there is in a civil deposition, to seek inadmissible evidence on the

ground that it is broadly “relevant to the subject matter. ‘4 2’ The

magistrate’s commitment must be based on “competent” evidence,

and this is taken to mean evidence admissible under the usual rules

of evidence, a result in any event required by the Evidence Code. 24

Discovery also may be aimed at producing admissible evidence,

not so much for its immediate relevance to the bindover

decision the magistrate must make as for its anticipated use at the

subsequent trial. This is frequently considered a central function of

the preliminary by judges, prosecutors and defense attorneys. It has

not, however, been formally recognized as an independent end of the

preliminary hearing. Rather, it is viewed as an incidental benefit, a

by-product, of screening the state’s decision to prosecute.4 2

‘ The

cases have uniformly denied any remedy for a magistrate’s refusal to

422 California has provisions which permit depositions but only when a witness

is outside the state or is likely to become unavilable for trial. CAL. PENAL CODE

  • § 1335-45, 1349-62 (West 1970). Yannacone v. Municipal Court, 222 Cal. App. 2d

72, 74-75, 34 Cal. Rptr. 838, 839 (1st Dist. 1963). In contrast, a broad criminal deposition

mechanism is provided under Florida law, FLA. R. CRM. P. 1.220(f), and is

part of the proposed Hawaiian Criminal Code, Hawaii Rules of Penal Procedure,

Tentative Draft 1970, § 1201.

423 CAL. CODE CIV. PRO. § 2016(b) (West Supp. 1971).

424 CAL. Evm. CODE § 300 (West 1966).

425 People v. MaIloy, 199 Cal. App. 2d 219, 238-39, 18 Cal. Rptr. 545, 557 (1st

Dist. 1962).

[Vol. 18: 916

— 18 UCLA L. Rev. 920 1970-1971


permit defense questioning aimed primarily and transparently at

obtaining information for later use at trial. 28

These decisions do not necessarily mean the magistrate acts

extralegally or abuses the “true” function of the preliminary if he

permits liberal discovery opportunities. They do indicate that the

reviewing courts have been extremely reluctant to substitute their

judgment of the permissible scope of discovery for that of the magistrate.

27 These courts are concerned with the risk that unrealistic

requirements fashioned at an appellate level might submerge the

preliminary under an unmanageable burden.4 28

Jennings v. Superior Court,429 however, implies that the magistrate’s

discretion has certain limits. Admittedly, Jennings dealt

specifically with the defendant’s right to present a defense at the

preliminary and not with the scope of discovery.4 0 But to the degree

Jennings secures the defendant’s right to “defend,” it correspondingly

secures his effective opportunity to discover because the distinction

between “discovery” and “defense” is a matter of degree and

motive. Defense interrogation may produce a payoff in terms of each.

An interrogating party need not elect between the two; he will be

happy to use the testimony for whatever it is worth.

In exercising his discretion, a magistrate may consider several

factors, including the pertinence of the evidence to the screening

decision he must make, the defendant’s motivation, i.e., whether the

defendant is “really” pursuing a line of questioning for immediate

evidentiary ends rather than for discovery purposes, the state of his

calendar, the seriousness of the charge, and the tolerance manifested

by the prosecutor toward freewheeling inquiry. The magistrate is,

of course, ultimately moved by his sympathy or lack thereof toward

utilization of the preliminary for discovery purposes. x 48

426 Mitchell v. Superior Court, 50 Cal. 2d 827, 330 P.2d 48 (1958); Tupper v.

Superior Court, 51 Cal. 2d 263, 331 P.2d 977 (1958); People V. Superior Court, 264

Cal. App. 2d 694, 70 Cal. Rptr. 480 (3d Dist. 1968); People v. Barquera, 208 Cal.

App. 2d 104, 107, 25 Cal. Rptr. 45, 46-7 (2d Dist. 1962); People v. Malloy, 199

Cal. App. 2d 219, 238-39, 18 Cal. Rptr. 545, 557 (1st Dist. 1962).

Defendants are permitted much more liberal discovery opportunities at the preliminary

hearing in Canada. Halyk, The Preliminary Inquiry in Canada, 10 CRIM.

L.Q. 181, 190-91 (1968).

427 See People v. Malloy, 199 Cal. App. 2d 219, 18 Cal. Rptr. 545 (1st Dist.


428 See People v. Green, 70 Cal. 2d 654, 663-64, 451 P.2d 422, 428, 75 Cal. Rptr.

782, 788 (1969), rev’d sub. nom., Green v. California, 399 U.S. 149 (1970).

429 66 Cal. 2d 867, 428 P.2d 304, 59 Cal. Rptr. 440 (1967).

480 See discussion of Jennings v. Superior Court in text accompanying notes

381-413, Part I, supra.

431 One magistrate, typical of the school hostile toward the preliminary hearing,

explained his attitude in these words:

Preliminary hearings are an enormous waste of time. All that time and


— 18 UCLA L. Rev. 921 1970-1971


I In many cases, however, attorneys press for discovery with less

vigor than might be anticipated. 4 2 There are various explanations

for this. Initially, several tactical considerations may dictate that the

defense not make full use of the discovery opportunities available at

the preliminary. First, if the defense attorney is hoping to have the

case submitted to the trial court on the preliminary hearing transcript,

4s3 he may not want to pollute the record with unfavorable

facts that may be produced in discovery. Second, discovery efforts

may perpetuate harmful testimony that might otherwise not be

available at trial because of death, absence, or a change of heart

by a witness. Third, discovery may alert the prosecution to the fact

that it has undercharged the defendant. Finally, certain lines of

evidence may produce harmful press publicity. Because the attendant

disadvantages of discovery may outweigh the anticipated benefits,

defense counsel normally compromises in his discovery efforts

by cross-examining the prosecution witnesses but calls no witnesses

of his own.484

energy spent on arriving at decisions that almost always go one way. The

public defender has a very limited function; just to keep the D.A. honest

and make sure he puts in some testimony on each element of the crime.

In any event the D.A. either has a case or he doesn’t-and that will come

out at the trial. What’s the purpose of the preliminary? It is only used

by the defense for discovery.

A typical defense attorney’s perception of the magistrates’ attitudes toward discovery

is expressed by a deputy public defender:

Several magistrates are completely adverse to discovery. If you make it

clear that you’re asking a question purely and simply for discovery, they

will not only sustain an objection but will make the objection themselves.

Two-thirds to three-quarters of the judges I work in front of will let you

discover up to a point. They will let you ask the names of witnesses involved;

they will let you ask for seemingly not too relevant material if

they think it might be useful in investigating the case later. But, if you

want to be sure and get an answer, you have to camouflage your discovery

objectives and make the question appear perhaps more relevant than it

might really be, in order to get your discovery.

432 This is a phenomenon criticized by one criminal trial judge (note, not a

magistrate). He spoke admiringly of a certain attorney who would cross-examine

at great length at the preliminary hearing:

This attorney would be sure the witness was pinned down to all of

the details. He’d get him to describe in detail a venetian blind on a nonexistent

window or at least so much detail that the witness could never

remember it all at trial.

This technique, familiar to any observer of civil deposition practice, is less common

at the preliminary hearing.

A useful index of the extent of discovery in preliminary hearings is provided

by the statistics on the average time consumed per case. The typical preliminary

lasts about thirty to forty minutes. Over half of this time is consumed in the

following manner: by formal matters, such as informing the defendant of the

charges against him and of his rights, and the setting of bail; by the prosecution

putting on its case; and by argument of counsel. Less than half of the time is accounted

for by defense cross-examination. Therefore, in the average case the outer

time limit on discovery efforts is perhaps 15 to 20 minutes.

433 See Section IV B, infra.

484 Sometimes he ends up offering, as a technical maneuver, a prosecution

[Vol. 18: 916

— 18 UCLA L. Rev. 922 1970-1971


Discovery decisions by the defense, however, are not simply the

product of reflective tactical judgments. Uncritical acceptance of

going practices, such as the automatic refusal to waive the preliminary

hearing, 485 the general unwillingness of the defense to call

any witnesses of its own, 86 and the widespread practice of submitting

the case on the transcript, may also account for the failure to

take full advantage of discovery opportunities.48 7

Furthermore, the defense may not utilize the discovery opportunities

afforded by the preliminary because of lack of time for

preparation. The time available for such preparation, particularly in

cases where the public defender appears for the defendant, is extremely

limited. This may cause him to proceed more conservatively

with his interrogation than he would if advance investigation had

provided him with better tactical guidelines. This lack of preparation,

flowing from the overwhelming caseload of the defender’s office,

necessarily limits the effectiveness of his discovery efforts. Attorneys

also may restrict their discovery efforts in anticipation of being cut

off by the magistrate. The magistrates are all under pressure to carry

their “equitable” load of cases. On their own motion, they may curb

a line of defense questioning just as they sometimes curb the prosecutor’s

efforts to bolster his case with additional witnesses.

The efficacy of the preliminary hearing as a defense discovery

device depends not only on the attitudes of the defense counsel and

of the magistrate, but also on prosecutorial strategy. How extensively

does the prosecutor reveal his case at the preliminary hearing?

Does he offer all the evidence he intends to use at trial, as does his

British counterpart?48 ‘ Or does he put on the bare minimum necessary

to survive the magistrate’s screening standard, comfortable in

the knowledge that if he fails to clear the hurdle he can refile and do

better next time? And to the degree that he discloses less than all,

witness as his own. This occurs when he is blocked from asking the witness a question

on cross-examination because it is “outside the scope of the direct.” If he then

designates the witness “his own,” he will usually be permitted to proceed.

485 See text accompanying notes 35-41, Part I, supra.

486 These could be friendly witnesses, called for the purpose of persuading the

magistrate, or hostile witnesses called to procure information or to pin them down.

437 These practices are not followed elsewhere. Submission on the transcript is

virtually unknown outside of Los Angeles; and in some jurisdictions the preliminary

is almost never held. There may be valid explanations for these contrary practices.

Miller and Dawson, Non-Use of the Preliminary Examination: A Study of Current

Practices, 1964 Wis. L. REv. 252, 273. For a consideration of waiver practices in

three jurisdictions, see A.B.A. STUDY, supra note 3, Pt. I, at 110-36. But these

variations in practice are partly attributable to the accident of habit, tradition and

the conventional wisdom of the respective local criminal bars.

488 London Study, supra note 3, Pt. I, at 31; Louisell, Criminal Discovery:

Dilemma Real or Apparent?, 49 CALi’. L. REV. 56, 65 (1961).


— 18 UCLA L. Rev. 923 1970-1971


does this spring from a desire to limit defense discovery or from other


Part of the above is easily answered. The. prosecution feels

under no compulsion to offer all its evidence. But at least in routine

cases, e.g., narcotics possession, theft, or bookmaking, there appears

to be no studied effort to prevent the defense from hearing particular

witnesses. The key witnesses, such as the complainant, the arresting

and the investigating officers, the expert witness (unless, by stipulation,

his testimony is introduced in written form), and others are

commonly called during the hearing. The most common case of the

uncalled potential witness is probably the police officer with only

corroborative testimony.

The failure to put on a more detailed case is attributable to the

prosecutor’s knowledge that it is wholly unnecessary to do so to

secure a bind over, and to the pressure which the system exerts on

all the participants-lawyers as well as judges-to hurry the cases

along. The needs of the calendar are a central, overriding fact of the

preliminary hearing.

Prosecutors deny that they normally keep witnesses from testifying

merely to surprise the defendant at trial. Several defense

attorneys concurred. Said one:

They will normally put on only part of the witnesses they intend

to put on at trial, but from the best I can determine from reading the

arrest reports on these cases, the people they keep off are supplementary

and not the most important ones. I think from time to time they will

keep a witness off who is a surprise witness, but it is a relatively rare


A number of considerations give credence to this view, at least in the

routine case. First, the prosecution often entertains little doubt that

it will secure a conviction. The preliminary hearing is just a prelude

to a guilty plea or to a “slow plea” on the transcript. Sophisticated

tactics are unnecessary; a straightforward prosecution will do. Since

many cases end up being submitted to the trial court on the transcript,

439 it is more useful to get the testimony of the important

witnesses into the preliminary transcript than to hold them in reserve

for purposes of surprise.

Furthermore, the very routine under which cases are processed

makes the tactic of surprise difficult to effectuate in the average case.

Normally, no single prosecution attorney follows the case from complaint

through trial. The complaint deputy decides who is to be

489 See Section IV B, infra.

[Vol. 18: 916

— 18 UCLA L. Rev. 924 1970-1971


subpoenaed for the preliminary hearing. A different deputy presents

the case to the magistrate. Another handles the section 995 motion

if one is made. And yet another tries the case in Superior Court.

There is little coordination among these four in a routine case. No

one is charged with the responsibility of piloting the case through its

various stages. This hardly proves fertile ground for growth of

sophisticated tactics.

Cases of special importance are flagged (“specialed”). These

are assigned to a given deputy district attorney in advance. In this

situation, the preceding comments do not apply, and the retention of

surprise witnesses may well be part of prosecutorial tactics.

  1. “Perpetuation” of Evidence. Though defense counsel seldom

calls his own witnesses, the perpetuation of testimony, even

prosecution testimony, is of importance to him. Not only has he

learned what the prospective witnesses have to say, but he “freezes”

their testimony. They may be effectively impeached with their preliminary

testimony if it undergoes a metamorphosis by trial; and

their preliminary testimony (presumably more favorable to the

defense) may then be qualified as substantive evidence.440

The function of perpetuating testimony should be of substantial

concern to the prosecutor as well, because of the ever present possibility

that an important witness may prove unavailable to testify

at trial. Obstacles to such prosecutorial use of preliminary hearing

testimony at the time of trial may arise from two related but somewhat

dissimilar bodies of law: the California Evidence Code and the

confrontation clause of the sixth amendment, to which we now turn.

California, rejecting the Wigmorean analysis,44′ treats testimony

at the preliminary hearing as hearsay when offered for the truth of

the assertions made, despite the fact that it was under oath and

subject to cross-examination. Like any other hearsay statement, it

may be admissible under one of the many exceptions to the hearsay

rule: e.g., as a prior inconsistent statement of the witness,442 as a

declaration against interest,44 as an authorized admission by an

agent of a party,444 etc. Under most exceptions, the fact that the

statement was made at the preliminary hearing does not affect its

admissibility and by the same token does not affect the conduct of

the preliminary hearing. We are here concerned with the one excep-

440 CAL. EvD. CODE § 1291 (West 1966).

441 5 J. WIGMORE, EVIDENCE §§ 1370-71 (3d ed. 1940).

442 CAL. EVID. CODE § 1235 (West 1966).

443 CAL. Evm. CODE § 1230 (West 1966).

444 CAL. EvID. CODE § 1222 (West 1966).


— 18 UCLA L. Rev. 925 1970-1971


tion where admissibility is affected by the events at the preliminary

hearing and which may thus shape the conduct of the parties at the

hearing-the exception for former testimony.445

The preliminary hearing testimony may be used as evidence at

trial under the former testimony exception “unavailable” if the witness becomes and the defendant at the preliminary hearing “had

the right and opportunity to cross-examine the declarant with an

interest and motive similar to that which he has” at the guilt trial.446

The “unavailability” requirement is not, of course, influenced by the

conduct of the preliminary hearing. The second requirement, however,

vitally concerns the nature of the preliminary hearing.

Does the defendant at the preliminary have “an interest and

motive” to cross-examine the same as that which would prevail at

trial? Though this may be true in some cases, normally defense

counsel will be concerned at the preliminary with exploring rather

than destroying the prosecution’s case. If they were aware of the

defects in testimony capable of attack on cross-examination, most

lawyers would prefer to save the attack for trial rather than tip their

hand at this early stage. Given the slight chances of prevailing at the

preliminary and the ephemeral nature of any victory, given the

prosecutor’s right to refile, it is doubtful that there will be many

cases where the defense is motivated to make a full-scale attack on

credibility at the preliminary. As the California Supreme Court

observed in People v. Green:

[[T.. ]he purpose of a preliminary hearing is not a full exploration of

the merits of a cause or of the testimony of the witnesses …. [C]rossexamination

which would surely impeach a witness at trial would not

preclude a finding of probable cause at the preliminary stage. Even

given the opportunity … , neither prosecution nor defense is generally

willing or able to fire all its guns at this early stage of the proceedings

for considerations both of time and efficiency …. Indeed it is seldom

that either party has had time for investigation to obtain possession of

adequate information to pursue in depth direct or cross-examination. 447

While there has been little judicial discussion of the implications

of these facts for admissibility of evidence under section 1291, the

Assembly Committee on Judiciary in its comments on the section

445 CAL. Evm. CODE § 1291 (West 1966).

446 Id.

447 70 Cal. 2d 654, 663, 451 P.2d 422, 428, 75 Cal. Rptr. 782, 788 (1969), rev’d. vub. nom., Green v. California, 399 U.S. 149 (1970). The reversal, of course, was of the California Supreme Court’s holding as to the requirements of the federal constitution. It should not affect the validity of the California Supreme Court’s

characterization of the California preliminary hearing for purposes of interpreting

the requirements of California Evidence Code section 1291, a state statute.

[Vol. 18: 916

— 18 UCLA L. Rev. 926 1970-1971


showed a sensitivity to this problem. “The determination of similarity

of interest and motive in cross-examination,” it said, “should be

based on practical considerations, and not merely on the similarity

of the party’s position in the two cases. 448 While the committee did

not expressly consider what this meant in the case of evidence offered

from the preliminary hearing, it did comment about the analogous

problem in a civil case of evidence drawn from a deposition. Such

evidence, it said, should not be admitted under section 1291 “if the

judge determines that the deposition was taken for discovery purposes

and the party did not subject the witness to a thorough crossexamination

because he sought to avoid a premature revelation of

the weakness in the testimony of the witness or in the adverse

party’s case. ‘

1449 In such a situation, the “interest and motive” for

cross-examination would be substantially different and the requirements

of section 1291 would be unfulfilled.

It is hard to see why these considerations would not in some

situations undermine the admissibility of testimony offered from

the preliminary hearing as well. If the description of the preliminary

hearing in Green quoted above is substantially accurate, and if the

Code commentary is taken seriously, preliminary hearing testimony

should be closely scrutinized whenever offered under section 1291

to determine whether there was a sufficient identity of “interest and

motive” in cross-examination to justify depriving the defendant of

his right at trial.4 50 However, there has been no disposition to date

to accept this kind of attack on preliminary testimony offered under

the former testimony exception.4 5 1

Even in cases where the defense motive at the preliminary is

similar to that at trial, the circumstances are often such that he does

not have the same right and opportunity. Some magistrates are

reluctant to permit searching cross-examination at the preliminary.

448 CAL. Evm. CODE § 1291, Comment, Assembly Committee on Judiciary

(West 1966).

449 Id. The statement applies to the offer of evidence in the present action

from a deposition in another action. The use of a deposition in the same action

is governed by CAL. CODE CIV. PRO. §§ 2016-36 (West 1954) rather than CAL.

Evm. CODE §§ 1290-91 (West 1966).

450 This should be particularly true in the case where the evidence from the

preliminary hearing is offered in connection with a charge that was not even pending

at the time of the preliminary but later added by the prosecutor pursuant to his

power to add transactionally related charges. But see People v. Terry, 180 Cal.

App. 2d 48, 57-8, 4 Cal. Rptr. 597, 603 (2d Dist. 1960), cert. denied, 364 U.S. 941

(1961) (original charge: child molesting; added charge: sodomy).

451 This attack was apparently made and rejected in People v. Green, 152 Cal.

App. 2d 886, 890, 313 P.2d 955, 958, (1st Dist. 1957). See also People v. King, 269

Cal. App. 2d 40, 45, 74 Cal. Rptr. 679, 683-84 (2d Dist. 1969); People v. Palacios,

261 Cal. App.2d 566, 574, 68 Cal. Rptr. 137, 142 (4th Dist. 1968).


— 18 UCLA L. Rev. 927 1970-1971

UCLA LAW REVIEW [Vol. 18: 916

Even where the magistrate is tolerant, the attorney may not be

prepared because the notice of the charges given by the complaint is

meager, or, as is particularly the case with the deputy public defender,

he may have had only a brief chance to interview his client,

and none to consult other witnesses who might help him prepare for


The issue of the adequacy of cross-examination at the preliminary

hearing as it affects the admissibility of the testimony of a

witness absent at trial is now one of constitutional dimensions under

the sixth amendment confrontation clause. Indeed, many of the

significant confrontation cases have involved preliminary hearing

testimony. Pointer v. Texas,45 2 which first applied the confrontation

clause to the states, held that the opportunity for cross-examination

at the preliminary hearing was insufficient to satisfy the Constitution

because the defendant was not provided counsel. Barber v. Page,453

in addition to establishing a standard for unavailability more stringent

than that in most states, also suggested in a dictum that preliminary

hearing cross-examination could never be adequate to

satisfy the sixth amendment because the right of confrontation was

“basically a trial right.4 54

452 380 U.S. 400 (1965). See also Douglas v. Alabama, 380 U.S. 415 (1965).

The issue in Pointer was whether former testimony violated the confrontation

clause of the sixth amendment. A witness who testified against the defendant at the

preliminary hearing was not available at the time of trial. His preliminary testimony

was admitted under the Texas hearsay exception for former testimony. The conviction

was reversed because the defendant was not represented by counsel at the

preliminary hearing and therefore lacked an adequate opportunity to cross-examine.

No corresponding opportunity was, of course, available at the trial since the admissibility

of the evidence depended on the very fact of the witness’ unavailability.

453 390 U.S. 719 (1968).

There, the defendant had a lawyer at the preliminary, but there was an inadequate

showing of the witness’ unavailability at the time his preliminary testimony

was offered at trial. The court held that the right to confrontation “includes both

the opportunity to cross-examine and the occasion for the jury to weigh the

demeanor of the witness.” 390 U.S. at 725. The mere right to cross-examine at the

preliminary was not sufficient for the second purpose.

The Court in Barber assumed that genuine witness unavailability might excuse

the confrontation requirement, but in Barber such unavilability had not been shown.

The witness had been incarcerated in a federal penitentiary in another state, but

the prosecution had made no judicial effort to compel his attendance. Nor had it

made any effort to invoke a policy of the federal authorities to cooperate in making

prisoners available to testify in state proceedings. 390 U.S. at 724-25.

A number of California cases have invalidated the provision of former Penal

Code Section 686 which made testimony of the witness at the preliminary hearing

admissible on a mere showing that he was outside the state. People v. Berger, 272

Cal. App. 2d 584, 77 Cal. Rptr. 617 (2d Dist. 1969); People v. Casarez, 263 Cal.

App. 2d 130, 69 Cal. Rptr. 187 (5th Dist. 1968). Since the Evidence Code became

effective, it has been held that under the definition in § 240, a witness is not “unavailable”

for hearsay purposes simply on a showing that he is beyond the state line.

People v. Nieto, 268 Cal. App. 2d 231, 73 Cal. Rptr. 844 (2d Dist. 1968). See People

  1. Woods, 265 Cal. App. 2d 712, 71 Cal. Rptr. 583 (2d Dist. 1968).

454 390 U.S. at 725.

— 18 UCLA L. Rev. 928 1970-1971


These confrontation decisions, as applied by the California

Supreme Court, would have drastically limited the utility of the

preliminary hearing as a mechanism for perpetuating prosecutorial

testimony, particularly if the courts accepted the holding in People v.

Gibbs,455 that preparation for the preliminary as abbreviated as that

which typifies most public defender cases is tantamount to having

no counsel at all. Recently, however, the Supreme Court seems to

have retreated from the early confrontation decisions to a degree

that is not yet clear.

In California v. Green, 451 the Supreme Court reversed a decision

of the California Supreme Court which held preliminary hearing

testimony inadmissible under the exception for prior inconsistent

statements of a present witness. The Court’s holding is that the

present opportunity to cross-examine the witness about his preliminary

hearing testimony satisfies the confrontation clause and

insures the continued utility of the preliminary hearing as a device

to perpetuate the testimony of prosecution witnesses. But more

significantly, the Court stated in an elaborate dictum that, assuming

the witnesses were constitutionally “unavailable,” cross-examination

at the preliminary was adequate to satisfy the confrontation


The Green opinion has a number of serious ambiguities.457 The

most crucial of these for present purposes is whether the Court

means that the preliminary hearing cross-examination actually conducted

in Green was adequate or that the preliminary hearing is

always an adequate opportunity for cross-examination. If the Court

means the former, then the decision says little about other cases

because the conduct of the preliminary in Green was atypical in a

number of crucial respects.458

If the Court meant to hold that the preliminary hearing tes-

455 255 Cal. App. 2d 739, 63 Cal. Rptr. 471 (3d Dist. 1967).

456 399 U.S. 149 (1970).

457 For a more thorough discussion of Green, and other recent confrontation

cases, see Graham, The Right of Confrontation and Rules of Evidence: Sir Walter

Raleigh Rides Again, 9 ALASKA L.J. (No. 1) 3 (1971); Graham, The Right of Confrontation

and Rules of Evidence: The Return of the Portuguese Gentlemen, 9

ALASKA L.J. (No. 5) 3 (1971). Cf. People v. Martin, 21 Mich. App. 667, 176 N.W.2d

470 (1970) (holding opportunity to cross-examine adequate despite magistrate’s

admonition to confine cross-examination to probable cause issue). The Martin case

is criticized in Josephson, 1970 Annual Survey of Michigan Law: Evidence, 17

WAYNE L. Rv. 405, 411-4 (1971).

458 The defendant was represented by private counsel who was in complete

charge of the case rather than a deputy public defender who would not be responsible

for the defense after the preliminary and who would face serious limitations

on his conduct of the preliminary. Furthermore, the witness was extensively crossexamined

and his importance was obvious because he was the only person who observed

the defendant’s alleged activities. Finally, the Court noted that there were

no significant limitations imposed on cross-examination by counsel.


— 18 UCLA L. Rev. 929 1970-1971


timony of an unavailable witness is per se admissible, this would, as

the California Supreme Court noted in its opinion in Green, have

a serious impact on the conduct of the preliminary hearing. 59 Defense

counsel would be under pressure to conduct a full trial-type

cross-examination at the preliminary hearing since there is never certainty

that any given witness at the preliminary will be available at

trial for cross-examination. If such examination is not conducted,

the defense might then object to the use of the transcript on the

grounds of incompetence of counsel rather than the confrontation


It is not possible at this writing to predict which way the Green

dictum will be developed. It is clear that the pressure of the Confrontation

Clause on the conduct of the preliminary hearing, whichever

way Green is interpreted, is in the direction of increasing its importance.

If the courts must scrutinize the preliminary to determine

if either cross-examination or counsel was adequate, there may be a

greater awareness of other aspects of the hearing. More important,

to the extent that the prosecutor is concerned with the perpetuation

of testimony for use at trial, it will serve his purpose to join the

defendant in resisting pressures from the magistrate to restrict the

scope of the cross-examination to expedite the calendar.

  1. Conclusion

On balance, the case is strong for a tolerant attitude at the

preliminary hearing toward “discovery” efforts, particularly as to

subjects of inquiry the defendant would clearly be permitted to

pursue at trial. The case for this proposition is at its weakest if one

assumes the only function of the preliminary is to screen prosecutorial

decisions to go forward. Even on this assumption, however,

the thrust of Jennings v. Superior Court46 is in the direction of

liberality. But the assumption is unreal, given the multiplicity of

tasks imposed on the preliminary today. Most of these would be

substantially served by a fair degree of liberality in scope of interrogation

and defensive opportunity. The principal argument to the

contrary arises from the fear that this “might place an intolerable

burden on the time and resources of the courts of first instance.)4 61

There are at least three responses to this view. First, this ultimately

amounts to a fiscal test and should be rejected given the important

functions of the preliminary that presuppose an adequate development

of the facts. Second, the “savings” and “efficiency” achieved

459 People v. Green, 70 Cal. 2d 654, 664, 451 P.2d 422, 428, 75 Cal. Rptr. 782, 788,

(1969), rev’d. sub. nom., Green v. California, 399 U.S. 149 (1970).

460 66 Cal. 2d 867, 428 P.2d 304, 59 Cal. Rptr. 440 (1967).

461 People v. Green, 70 Cal. 2d 654, 664, 451 P.2d 422, 428, 75 Cal. Rptr. 782,

788 (1969), rev’d. sub. nom., Green v. California, 399 U.S. 149 (1970).

[Vol. 18: 916

— 18 UCLA L. Rev. 930 1970-1971


by- sharply limiting discovery at -the preliminary may be largely

spurious, because this may cause a shift of operating expenses to

other segments of the system, particularly the trial462 and reviewing

courts. Finally, the factual premise-that a broad right of discovery

and defense would revolutionize the preliminary hearing as we now

know it-is highly questionable. For every tactical pressure acting

on a defendant to engage in freewheeling interrogation, there are

opposing tactical pressures that counsel caution. If defense counsel

were accorded a broad right to probe and defend at the preliminary,

it is far from clear that they would as a class run amok, producing

the “intolerable burden” sometimes predicted.

  1. Substitute for Full Trial

The preliminary hearing is frequently used as a substitute

for the full trial in Los Angeles County. In nearly 75 percent of the

trials held in the County, the entire transcript of the preliminary

hearing is submitted in evidence at the plenary trial. This evidence

is used in lieu of viva voce testimony of the witnesses, and in a substantial

number of cases no evidence other than the transcript is


Discussions with magistrates in Los Angeles County suggest

that they are sometimes unaware of the extent of the subsequent

use of the record made before them.468 The tendency is to cling

to classic conceptions of the preliminary hearing as a mere screening

hurdle en route to trial. A more realistic conception would be

that in the majority of Los Angeles cases, there is in effect a continental

trial,4 in which most of the evidence is taken at one

462 See, e.g., Priestly v. Superior Court, 50 Cal. 2d 812, 819, 330 P.2d 39, 43

(1958) (“disclosure at the preliminary hearing will ordinarily obviate the necessity

of a continuance during the trial”). But see People v. Superior Court, 264 Cal. App.

2d 694, 70 Cal. Rptr. 480 (3d Dist. 1968).

463 This is not surprising. The leading “practical” manual for California lawyers

has a whole chapter on how to jury try a criminal case and only three short

paragraphs discussing trial on the transcript, ending with a prediction that its use

may decrease in the future! CONT. EDUC. BAR, CAL. Cam-. LAW PRACTICE § 8.75

(1964). See also B. WiTxKi, CALIFORNIA CRaDWrAx. PROCEDURE §§ 355, 378 (1963), §

355A (Supp. 1967).

464 In French criminal procedure, the trial of most crimes is primarily an examination

and clarification by questioning of the dossier rather than a full-blown

viva voce presentation of evidence as in the American model. The preparation of

the dossier is largely the function of the juge d’instruction, or examining magistrate.

See generally Pugh, Administration of Criminal Justice in France: An Introductory

Analysis, 23 LA. L. REv. 1, 13-15, 26 (1962). The fact that the Los Angeles system

should have evolved into something which functionally resembles the inquisitorial

French system is particularly interesting since it has been suggested that the preliminary

hearing was originally much like the continental system, but that the

inquisitorial features were trimmed back by the development of the privilege against

self-incrimination. Cook County Indigent Defendants, supra note 6, Pt. I, at 1367-68.

We do not push the comparison any further, except to note that although the


— 18 UCLA L. Rev. 931 1970-1971


phase-the preliminary hearing-and the decision rendered at the

second phase-the trial.

Such a procedure could not be imposed upon the defendant

against his will and still be consistent with constitutional confrontation

requirements. The “submission on the transcript” comes about

as the result of the stipulation of the parties,405 and each side

generally reserves the right to produce additional testimony in the

trial-a right which is often invoked.

The following statistics illustrate how the preliminary hearing

is frequently used as a substitute for the full trial in Los Angeles,

but rarely serves this function in other areas of the state. In 1967,

13,378 felony defendants were tried throughout California. Over

half of the cases were submitted to the trial court on the transcript.

The remainder were divided about equally between trial by jury

and trial by court on jury waiver. In Los Angeles County 10,260

felony defendants were tried in the Superior Court, and almost

three-quarters of these defendants submitted their cases on the transcript.

Less than 10 percent received trial by jury, and the balance

were tried by the court on jury waiver. Therefore, of the 7,539

trials on the transcript throughout the state in 1967, 7,347-over 97

percent-were in Los Angeles County.4 6

magistrate may be presiding over the preparation of a documentary record for the

guilt trial, he assumes none of the responsibility for the adequacy of the record

that is placed upon the juge d’instruction.

465 The stipulation typically evolves out of the following colloquy:

Public Defender:

The defendant wishes to waive the right to a trial by jury and desires

to submit this matter to the court on the transcript of the preliminary

hearing, reserving the right to each side to produce additional evidence.

The court [addressing defendant]:

If the court accepts this agreement or stipulation suggested by your

attorney you will not have the opportunity to further confront or crossexamine

the witnesses who testified at the preliminary hearing. Do you wish

at this time to waive and give up your right to confront and cross-examine

the witnesses who testified against you at the preliminary hearings?

[The judge then goes through the procedure for waiver of jury trial.]

District Attorney:

The People offer to stipulate that this case may be submitted to the

court upon the testimony taken at the preliminary hearing, the court to

read and consider the reporter’s transcript of that testimony with the same

force and effect as if the witnesses who testified there were sworn and

testified; that all stipulations entered into at the preliminary hearing are

re-entered into for the purposes of this trial; ‘all exhibits received into evidence

are received into evidence at this trial subject to whatever objections

either side may make, both sides reserving the right to present additional


* * *

The above has, however, not been the invariable form of the stipulation. It has at

times been a good deal briefer and less revealing to the accused. See People v. Wheeler,

260 Cal. App.2d 522, 525, 67 Cal. Rptr. 246, 248 (2d Dist. 1968).

466 The number of cases tried by submission on the transcript compared to other

forms of trial over the period 1960-67 is shown in the following table:

[Vol. 18: 916

— 18 UCLA L. Rev. 932 1970-1971







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— 18 UCLA L. Rev. 933 1970-1971


. There are several reasons for the widespread practice of submitting

on the transcript. One is that this provides a-fast, economical

mode of trial in the congested, high -volume courts of Los Angeles

County. Limitations of staff size make submissions on the transcript

extremely attractive to the institutional litigators-the public defender

and the district attorney. A case which might otherwise

take days can in this way be disposed of in hours. With respect

to a defendant who retains his own counsel, this savings in time

may enable him to retain an attorney otherwise unwilling to represent

the defendant at a fee he is able to pay.

Another reason for submissions is the tactical advantages it

may provide. Under procedures in Los Angeles County, a case submitted

on the transcript, if supplemented by no more than one hour’s

testimony, goes on the “short-cause” calendar. The judges presiding

over these cases are somewhat more lenient toward defendants

than most judges. Therefore, the submission on the transcript is

a method of forum shopping for the defense.

Submission is also a useful technique in the bargaining process.

It often operates as a “slow plea” of guilty,” 7 though not so designated.

The “slow plea” may prove more acceptable to the defendant

than the outright plea of guilty. The defendant has his “day in

court” and is spared from confessing guilt. Moreover, this technique

eliminates the ever present danger that if the case goes to full trial,

the court will punish the defendant for having “wasted” the state’s

resources in the event he is found guilty. 68

In addition, a party may conclude that the preliminary testi-

The trend in submissions on the transcript remained unabated during 1968,

totaling about 80 percent of the cases tried. See 1968 CRIME IN CALIFORNIA, supra

note 5, Pt. I, at 93, Table V-3.

467 The rate of acquittal in Los Angeles County in 1967 for each of the three

modes of trial is shown by the following chart:




1966 1967 1966 1967 1966 1967

ACQUITTED 242 245 698 619 1,162 1,703

CONVICTED 768 635 1,671 1,420 4,394 5,638



RATE 30% 40% 42% 44% 26% 30%

SOURCE: 1966 CRIM’E IN CALIFORNIA, supra note 5, Pt. I, at 86, Table V-6; 1967 CRIME.

N CALIFORNIA, supra note 5, Pt. I, at 103, Table V-7.

468 See United States v. Wiley, 278 F.2d 500 (7th Cir. 1960).

[Vol. 18: 916

— 18 UCLA L. Rev. 934 1970-1971


mony given on his behalf was very, good, or that that given on his

opponent’s behalf was very poor. In any event, he may prefer to

stand on the transcript rather than risk the uncertainties of a renewed

examination and cross-examination at the trial. The following

observations made by a reviewing court illustrate this point:

The transcript of the testimony of this witness was far more

innocuous than the appearance of that witness before the state judge

[on a charge of assault with a deadly weapon] could ever have been.

There is no showing of intent, of malice, of how drunk the defendant

was, of former conduct including drinking, of any former attack upon

her, of the extent of the wounds inflicted on the victim, of any medical

testimony in relation thereto, or of many other facts that a Superior

Court judge would have insisted upon knowing if the trial was before

him. It would seem that any trial lawyer would have been well pleased

if the Superior Court judge would only have this transcript before him

rather than the gory details given by the witness in open court.469

Thus, the trial on the transcript is like an agreed statement of

the case, in which the prosecution puts on a mini-case and the

defense tacitly agrees to engage in only a limited contest of the

facts-a kind of “fact bargaining. ’47

0 Furthermore, the case may

not present any significant disputes as to raw facts but only as to

the inferences to be drawn. A party may conclude there is little

to gain by presenting the testimony viva voce.

Finally, the defendant may submit on the transcript to avoid

further prosecution. When there are issues of law in the case, such

as the legality of a search, the voluntariness of a confession, or

whether the admitted conduct violates the criminal law, any such

issue can be raised in at least two ways: on a section 995 pre-trial

motion,471 or at the trial itself.4 72 From the defendant’s viewpoint,

raising the issues at trial is more advantageous because he is immune

from further prosecution if he prevails, jeopardy having attached.

If the defendant proceeds under section 995, however, the prosecution

remains free to refile and proceed again.473 While this danger is

often theoretical (having been told, for example, that the seizure

of the marijuana was illegal, the prosecution is unlikely to try

again), it probably accounts for some of the submissions. 74 Viewed

469 Wilson v. Gray, 345 F.2d 282, 287-88 n.8 (9th Cir. 1965), cert. denied, 382

U.S. 919 (1965).

470 Compare the “prima facie” trial described in Brookhart v. Janis, 384 U.S. 1


471 CAL. PENAL CODE § 995 (West 1970).

472 This was the fact at the time we conducted our field observations. For recent

changes involving CAL. PENAL CODE § 1538.5 (West 1970), see text accompanying

notes 528-39 infra..

473 See text accompanying notes 243-56, Part I, supra.

474 The rate of refiling is considered in text accompanying notes 319-28, Part I,



— 18 UCLA L. Rev. 935 1970-1971


in this manner, the submission on the transcript is merely an alternate

form of a section 995 motion, with the advantage of immunizing

the defendant from further prosecution.

Although there are advantages to a submission on the transcript,

there are also disturbing aspects about its use in certain


First, the trial on the transcript deprives the trial judge of

demeanor evidence. This is a critical deficiency where the case

turns on the credibility of witnesses who present baldly conflicting

testimony. The importance of a witness’s demeanor to the assessment

of his credibility is a classical reason for treating deferentially

the jury’s findings of fact, and for insisting on the right of the

defendant to contemporaneous confrontation of the witnesses against


There is a good deal of irony in the way the matter of witness

demeanor is handled in submissions on the transcript. The magistrate

who has seen and heard the witnesses may have refused to consider

the issue of credibility, resolving all such disputes in favor of the

prosecution. He may regard credibility issues as outside his bailiwick,

almost exclusively a problem for the trial judge once the

defendant is held to answer.477 The trial judge, who neither saw, nor

heard the witnesses at the preliminary hearing, must resolve the

credibility issues as part of his fact-finding job. He makes the

determination on a cold record. Thus, no one has taken into account

the witnesses’ demeanor while testifying; the magistrate who had

the opportunity thought he lacked the power, and the trial judge

who unquestionably had the power lacked the opportunity. 78

The limited preparation for the preliminary hearing by the

public defender and the prosecuting attorney raises a second problem

with submissions on the transcript. Whatever objections may

be raised about the lack of preparation when the preliminary is


IN CALIFORNIA 39-41 (1956). See People v. Kirchner, 233 Cal. App. 2d 83, 89-90, 43

Cal. Rptr. 218, 223 (2d Dist. 1965) (indicating a general attitude of disapproval of

submission on the transcript but permitting it where the court found no prejudice to

defendant on the facts of the case.)

476 See, e.g., cases cited at notes 452-53 supra.

477 E.g., as in People v. Jennings, 66 Cal.2d 867, 428 P.2d 304, 59 Cal. Rptr.

440 (1967).

478 In People v. Wallin, 34 Cal.2d 777, 215 P.2d 1 (1950), the California

Supreme Court affirmed a conviction attacked on this ground. See the lower court

decision which had reversed the conviction, People v. Wallin 208 P.2d 400 (2d Dist.

1949). See also People v. Stinchcomb, 92 Cal. App. 2d 741, 208 P.2d 396 (2d Dist.


[Vol. 18: 916

— 18 UCLA L. Rev. 936 1970-1971


viewed merely as a screening device, serious enough in itself,479 the

objection is severely compounded when it is viewed as the evidentiary

phase of the trial itself.

Several arguments may be made in response to the above

criticisms. The submission on the transcript is often not intended

by the defendant as a substitute for a traditional trial but rather

as a “slow plea” of guilty.8 ° Thus, to criticize submission for its

defects as a trial surrogate is beside the point. Accordingly, the

argument continues, the submission on transcript should not be

criticized as an inferior, truncated, economy model trial of guilt or innocence,

but praised as a superior, elaborate, high-cost form of

guilty plea-one that allows a much desired judicial check on the

guilty plea and which helps forestall subsequent attacks on the

judgment, not uncommon in guilty plea cases.s This argument

is appropriate to describe many cases. However, there is a danger that

the defendant will not always understand he is the beneficiary of

an elaborate guilty plea. He may suffer from the delusion he is

pleading not guilty, unaware that on the state of the record, the

submission on the transcript is tantamount to a plea of guilty.

A further argument in response to the above criticisms is that

the case would not have been submitted on the transcript if it were

judged an inadequate basis for trial by either party. This form of

trial, after all, depends on the stipulation of the parties, and presumably

neither would do so if he regarded it as tactically unwise. 82

This assumption is no doubt often sound, yet as a generalization

it is too facile. It assumes that the respective parties are aware of

the advantages and disadvantages of submitting on the transcript,

will rationally weigh the one against the other, and will accept the

disadvantages only if in the final analysis they conclude that submission

is still justified. This presupposes that the lawyer’s decision

is a product of tactical judgment rather than a corner-cutting

device (especially attractive to the institutional litigator) where

there is a strong tradition supporting the use of the transcript be-

479 See text accompanying notes 59-61, Part I, supra.

480 Some indication of the accuracy of this charcterization may be seen in

some calculations brought to our attention by Milton Silverman, Esq. Curious as to

the declining rate of guilty pleas in Los Angeles, Mr. Silverman decided to calculate

the rate of guilty pleas if trials on the transcript were treated as guilty pleas. The

result was an almost constant rate of “guilty pleas” when so calculated. Apparently

the decline in guilty pleas was offset by a rise in trials on the transcript.

481 See, e.g., McCarthy v. United States, 394 U.S. 459 (1969); In re Tahl, 1

Cal. 3d 122, 125, 460 P.2d 449, 453, 81 Cal. Rptr. 577, 581 (1969). FED. R. CRIM.

PRO. 11, involved in McCarthy, requires that before the court accepts a guilty plea,

it be satisfied “that there [was] . . . a factual basis for the plea.”

482 See People v. Stinchcomb, 92 Cal. App. 2d 741, 208 P.2d 396 (2d Dist.



— 18 UCLA L. Rev. 937 1970-1971


cause of limited resources and excessive workload. It seems reasonable

to suspect that inertia, routine, and institutional pressures on

prosecutor and defense counsel alike will, with some frequency,

result in submissions contrary to the best interests of the defendant.


Judicial relief sought by defendants convicted after submission

on the ground that their constitutional rights were thereby violated

has frequently been rejected by the courts.4 4 The submission on

the transcript has not been deemed inconsistent with the accused’s

right to confront witnesses or to offer witnesses of his own. These

rights can be waived,48 although the waiver must be knowing and

not entered by counsel over the objection of the accused. 40 A recent

California Supreme Court case suggests that particularly close

scrutiny will be given the waiver where, under the circumstances

of the case, the submission on the transcript is tantamount to a guilty


The possibility, indeed, probability, in Los Angeles that the

felony case will in the end be submitted for trial on the transcript

has implications for attorney and magistrate alike at the preliminary

hearing. For the attorney, the implications are tactical. If he intends

to submit on the transcript, he will be well advised to abandon lines

of interrogation that might be highly useful for discovery purposes

but which load the record against his client. Seasoned attorneys

accordingly vary their technique at the preliminary depending on

their guess as to whether the case will ultimately be submitted on

the transcript. For the magistrate, the fact of frequent submission

means that the preliminary hearing should be conducted with the

488 E.g., as in People v. Wheeler, 260 Cal. App. 2d 522, 67 Cal. Rptr. 246 (2d

Dist. 1968). It is worth noting a further consequence of this mode of trial. While

there is no intention to turn the procedure into such, it does have some of the

charcteristics of a secret trial since, as a practical matter, the testimony is not available

to public scrutiny at the trial. Not only is the public thereby denied the opportunity

to observe, but important participants in the case-injured parties, witnesses,

police officers, acquaintances-are limited in the opportunity for a certain

type of education in the criminal process the public trial is thought to provide.

How slipshod the process can become, absent public scrutiny, can be seen in

cases where on an S.O.T. the judge did not even bother to read the transcript. See

People v. Montoya, 235 Cal. App. 2d 789, 45 Cal. Rptr. 572 (2d Dist. 1965).

484 Poole v. Fitzharris, 396 F.2d 544 (9th Cir. 1968) ; Symons v. Klinger, 372 F.2d

47 (9th Cir. 1967); Wilson v. Gray, 345 F.2d 282 (9th Cir. 1967); In re Mosley, 1

Cal. 3d 913, 464 P.2d 473, 83 Cal. Rptr. 809 (1970); People v. Foster, 67 Cal.

2d 604, 432 P.2d 976, 63 Cal. Rptr. 288 (1967); People v. Wallin, 34 Cal. 2d 777,

780-82, 215 P.2d 1, 3-4 (1950). Compare People v. Kirchner, 233 Cal. App. 2d 83,

89-90, 43 Cal. Rptr. 218, 223 (2d Dist. 1965) (submission on grand jury transcript).

485 Id.

486 People v. Wheeler, 260 Cal. App. 2d 522, 67 Cal. Rptr. 246 (2d Dist. 1968).

487 See In re Mosley, 1 Cal. 3d 913, 927, 464 P.2d 473, 479, 83 Cal. Rptr. 809,

815 (1970).

[Vol. 18: 916

— 18 UCLA L. Rev. 938 1970-1971


recognition that the real function of the preliminary is often not

merely to screen the decision to prosecute, but also to provide the

factual record upon which subsequent disposition of the case will

largely or exclusively be made. This suggests a tolerant approach

toward counsel’s efforts to explore issues at the preliminary that

may be only peripherally connected with the more narrow issue

of screening.


The defendant has a vital interest not only in avoiding

unnecessary trial, but also in avoiding prolonged, indefinite, or

capricious detention while the state prepares its case. It was the

recognition of this interest that accounted in part for the adoption

of the preliminary hearing system.4 88 The preliminary may thus

be viewed as a routinely provided equivalent of the habeas corpus

hearing. Were it or the grand jury not available as a pre-trial

screening device, one would expect a blizzard of habeas corpus

petitions to be filed which in the end would require the reintroduction

of a pre-trial, third-party screening mechanism similar to the

preliminary hearing.

The scheduling of the preliminary and the tempo at which it

is completed are significant matters, particularly for detained defendants.

The original statutory scheme contained a number of provisions

to insure that it be held promptly. The magistrate was

required to hold the hearing “immediately after the appearance

of counsel for the defendant or after waiting a reasonable period

of time for him to appear.” 89 The law now provides that the

defendant be brought before the magistrate “without unnecessary

delay,” 490 normally no later than two days after his arrest.491 Once

the defendant is brought before the magistrate, the preliminary

must be held within five days492 and completed in one session, except

on a showing of good cause.493 If postponements are permitted,

they may not exceed a total of six days without defendant’s consent.

494 In virtually all of the cases observed, the examination was

488 See note 185 and text accompanying note 188, Part I, supra.

489 Law of June 20, 1923, ch. 439, § 1, [1923) Cal. Stats. (amended 1935).

490 CAL. CONST. art. I, § 8 provides:

When a defendant is charged with the commission of a felony, by a written

complaint subscribed under oath and on file in a court within the county in

which the felony is triable, he shall, without unnecessary delay, be taken

before a magistrate of such court.

See also CAL. PENAL CODE §§ 825, 847, 849, 859 (West 1970).

491 CAL. PENAL CODE § 825 (West 1970).

492 CAL. PENAL CODE § 860 (West’1970).

498 CAL. PENAL CODE § 861 (West 1970).

494 Id.


— 18 UCLA L. Rev. 939 1970-1971


completed in one session, if session is defined as a single court day.

If all of the statutory requirements are complied with, the preliminary

should be concluded within no more than two weeks from

the time of arrest.495

Violation of the statutory prohibition against excessive postponements

of the preliminary hearing may well be “jurisdictional,”4’96

just as an unwarranted postponement in the initial arraignment may

require a reversal of an otherwise valid conviction.” 7 If the prosecutor,

however, asks for a postponement to which he is not entitled, the

defendant may be under considerable practical pressure to accede.

Even though the defendant may be entitled to a dismissal for undue

delay, jeopardy will not yet have attached. If the case is dismissed,

the defendant is likely to be rearrested and a new proceeding commenced.

98 If the defendant is on bail, the dismissal may result in an

exoneration of his bail, but his rearrest will require a new bail bond

with a second premium. The defendant may feel he is better off not

to stand on his statutory rights of reasonably speedy disposition. 99

The President’s Crime Commission has recommended that the

preliminary hearing be held within 72 hours of the initial arraignment

for those incarcerated and within seven days for those out on

bail. 500 This is a desirable policy, particularly in those cases where

495 The defendant is normally brought before the magistrate on the same day

or the day following his arrest. If, however, the arrest takes place on a Thursday or

Friday, the initial arraignment may not take place until the beginning of the following

week. The preliminary hearing is normally scheduled for one week after the

initial appearance. Since weekends are not included in the computation of the 2-day

period for the original arraignment or the 5-day period for the preliminary hearing,

CAL. PENAL CODE § 825 (West 1970); CAL. CODE Crv. PRO. §§ 10, 12a (West 1954),

this is deemed in compliance with the statutory requirements.

496 In People v. Elliot, 54 Cal. 2d 498, 503-04, 354 P.2d 225, 228-29, 6 Cal.

Rptr. 753, 756-57 (1960) (dictum), the court said the preliminary hearing must be

held in accordance with the statutory requirements and expressly disapproved of “any implications to the contrary found in the broad generalizations” of People v.

Van Horn, 119 Cal. 323, 325-27, 51 P. 538, 539 (1897) which had said that excessive

postponements were not jurisdictional.

497 People v. Powell, 67 Cal. 2d 32, 59-61, 429 P.2d 137, 153-55, 59 Cal. Rptr.

817, 833-35 (1967) (dictum) (defendant held for 3 days before arraignment).


BAR., CAL. CR:M. LAw PRACTICE § 6.3 (1964). As to the prosecutor’s general power

to refile, see text accompanying notes 319-325, Part I, supra.

499 Even assuming continued existence of a general power of prosecutorial

refiling (which we have earlier criticized), it is hard to see why the situation here

described should be tolerated. Statutory provisions designed to protect the defendent

are at best rendered nugatory or at worst converted to a trap. At the very least,

in those cases where the delay in the preliminary is attributable to prosecutorial

negligence or wilfulness, or the delay, for whatever reason, prejudices the defendant’s

ability to prepare the defense, refiling ought not be permitted.

499 See text accompanying notes 319-325, Part I, supra.


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— 18 UCLA L. Rev. 940 1970-1971


the Los Angeles Public Defender appears for the defendant. For

here there is typically no preparation by either side between the

time a complaint is filed and the time of the preliminary hearing.”‘

Lack of preparation is in itself regrettable, but it makes pointless

a week’s incarceration before the preliminary.5 0 2

Conceivably, the preliminary hearing provides a related check

on detention by affording the magistrate an opportunity to examine

carefully the question of bail. Prior to the time of the preliminary,

the magistrate may have to rely on police reports for the facts

of the offense. The preliminary provides him with a more complete

picture of the offense and with the facts that allow him to judge

more accurately its effect on the defendant’s eligibility for release

on his own recognizance or on lower bail. Furthermore, if the defendant

remains incarcerated until the time of the preliminary, this

is a fair indication to the magistrate of the defendant’s inability to

meet the bail previously set.

Magistrates, however, were extremely reluctant to reduce bail

or to release a defendant on his own recognizance. This seems to be

a generalized judicial response rather than a response of the preliminary

hearing magistrates. Setting of bail, contrary to what one

might guess from the rhetoric of appellate decisions, is not an individualized

judicial function in Los Angeles County. Rather, it

seems to be a highly routinized administrative function with great

reliance placed on bail schedules and the “O.R. Committee” of the

Superior Court.

Certainly this was true at the preliminary. We never observed

a magistrate release a defendant on his own recognizance. The usual

response was to refer him to the 0. R. Committee. Although we

did note a few bail reductions, most magistrates were reluctant to

depart from the amount of bail specified in the schedule. Although

the magistrates at the preliminary hearings appear to be wasting

OF JUSTICE, TASK FORCE REPORT: THE COURTS 85 (1967) [hereinafter cited as TASK

FORCE REPORT: THE COURTS]. The proposed amendments to the Federal Rules of

Criminal Procedure set a ten day limit if the defendant is in custody and twenty

days if he is not. PROPOSED FED. R. CRIM. P. 5(d)(2), 48 F.R.D. 547, 563 (1970).

However, they also require the magistrate to make a probable cause determination

at the initial appearance if the defendant was arrested without a warrant. Id. 5(d) (1),

48 F.R.D. 547, 562 (1970).

501 See text accompanying notes 12-63, Part I, supra.

502 In Chicago scheduling is more flexible, some preliminary hearings being

held the day after the arrest while others may be continued for weeks. Chicago

Study, supra note 3, Pt. I, at 464, 470-71; Cook County Indigent Defendants, supra

note 6, Pt. I at 616. In the federal courts the practice has been to continue the preliminary

hearing to a date sufficiently far in the future to permit the U.S. Attorney

to obtain an indictment. L.A. Study, supra note 3, Pt. I, at 173-75; Congressional

Invitation, supra note 6, Pt. I, at 1364.


— 18 UCLA L. Rev. 941 1970-1971


a useful opportunity to provide a more individualized bail policy,

one would have to undertake a complete study of the system to

determine how critical this deficiency is in practice.

  1. Forum for Constitutional Adjudication

The architects of the preliminary hearing were most concerned

with creating a device which would prevent incarceration and trial

when there was insufficient reason to think that a crime had been

committed or that the accused had committed it. They doubtless

did not see it as a device to weed out prosecutions that suffered

from constitutional infirmities. Yet all of our sources and a survey

of appellate decisions suggests that the majority of the cases terminated

by the preliminary hearing or through the related procedure

of a motion to quash the information under Penal Code section 995

are decided on constitutional grounds such as the inadmissibility of

a confession under Miranda or of physical evidence under searchand-

seizure doctrines. Of the cases in our empirical survey where

the defendant was not held to answer,” 3 seven were decided on

constitutional grounds and others may have involved evidence that

was not offered because of constitutional defects.

In a series of decisions beginning with Jackson v. Denno,50 4 and

recently in Simmons v. United States,505 the United States Supreme

Court has suggested the need for a separate hearing on constitutional

issues apart from the guilt trial. In Jackson, the Court required the

trial judge to find that a confession was voluntary before it was

admitted into evidence. Many state courts have interpreted this

decision as requiring a hearing out of the presence of the jury with

a record made and findings of fact indicating how the trial judge

resolved disputed issues of fact.50 Some courts as a matter of supervisory

power have promulgated rules requiring prosecutors to give

notice of intent to use confessions or real proof seized from the

defendant and have provided for hearings on these issues in advance

of the trial.5 °

This movement was given further impetus when in Simmons

the Court held that the defendant’s testimony at a suppression

hearing could not be used against him at trial. The Court reasoned

that use of the testimony would deprive the defendant of his fifth

503 See text accompanying notes 261-64, Part I, supra.

504 378 U.S. 368 (1964).

505 390 U.S. 377 (1968).

506 State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965);

State.v. Bishop, 272 N.C. 283, 158 S.E.2d 511 (1968).

507 State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3 (1965).

[Vol. 18: 916

— 18 UCLA L. Rev. 942 1970-1971


amendment :rights in order to protect ‘hisr ights under the’ fourth

amendment. This reasoning -would suggest that both Jackson hearings

and suppression hearings ought to be held out of the presence•

of the jury. 08 If so, it-would seem to follow that such hearings be

used to determine any of the following constitutional issues: whether

an in-court identification was tainted ‘by an illegal line-up Under

Wade;..0 whether.the line-up was so unfair as to violate due process

under People v. Caruso;510 whether the defendant waived his right’

to counsel at interrogation under Miranda;51′ whether, a co-defendant’s

statement can be edited sufficiently so as to permit a ‘joint

trial under: People v. Aranda512 and Bruton v. United States;513

whether the confrontation clause has been satisfied Under Pointer

  1. Texas5 14 and Barber v. Page.515 Additionally, it would seem to

make more sense to hold these hearings in advance of trial rather

than to let the jurors spend endless hours waiting while the separate,

hearings are held and subsequently run home to read about thel

excluded confession in the newspapers. If these hearings were held

in advance of trial, it is less likely that they would be covered by’

the press and thus less likely that the prospective jurors would see

or recall accounts that might be published.

The argument for a special hearing on constitutional issues

would be strengthened if the California Supreme Court were to

extend a principle expressed in People v. Charles. 51 There the

court held that in a court trial, the Aranda rule 517 prohibited

joint trials where one of the defendants has confessed, implicating

508 But see Pinto v. Pierce, 389 U.S. 31.(1967).

509 United States v. Wade, 388 U.S. 218 (1967); cf. People v. Banks, 2 Cal.,

3d 127, 465 P.2d 263, 84 Cal. Rptr. 367 (1970) (use of preliminary transcript on

this issue).

510 68 Cal. 2d 183, 436 P.2d 336, 65 Cal. Rptr.-336 (1968).

511 Miranda v. Arizona, 384 U.S. 436 (1966).

512 63 Cal. 2d 518, 407 P.2d 265, 47 Cal. Rptr. 353 (1965).

513 391 U.S. 123 (1968).

514 380 U.S. 400 (1965),.

515 390 U.S. 719 (1968).

516 66 Cal. 2d 330, 425 P.2d 545, 57 Cal. Rptr. 745, cert. denied, 389 U.S. 872


517 63 Cal. 2d 518, 407 P.2d 265, 47 Cal. Rptr. 353 (1965). Aranda held that

the trial court must follow one of several procedures where the prosecution proposes’

to introduce into evidence an extrajudicial statement of one defendant that implicates

a codefendant: “(1) It can permit a joint trial if all parts of the extrajudicial statements

implicating any codefendants -can be and are effectively deleted without prejudice

to the defendant. . . . (2) It can grant a severance of trials if the :prosecution

insists that it must use the extrajudicial ‘statements and it appears that effective

deletions cannot be made. (3) If the prosecution has successfully resisted a motion

for severance and thereafter offers an extrajudicial statement implicating a codefendant,

the trial court must exclude it if effective deletions are not possible.” Id.:

at 530-31, 407 P.2d at 272-73, 47 Cal. Rptr.. at 360-61.


— 18 UCLA L. Rev. 943 1970-1971


the other. The rule had previously been applied only to jury trials.518

The court reasoned that the trial judge was no better equipped to

forget such inadmissible evidence than were jurors. It suggested

that one solution would be to have another judge excise the inadmissible

material in a pre-trial hearing if the prosecution did not

wish to forego joint trials. If extended, this reasoning would seem

to require special hearings preceding court trials as well as jury


The preliminary hearing is one of the formal procedural devices

for the resolution of constitutional issues prior to trial. The defendant

who wishes to object to illegally seized evidence or a Miranda-barred

confession may object to the introduction of such evidence at the

preliminary hearing. If such evidence is a necessary part of the

prosecution’s case and either the magistrate at the preliminary or

the Superior Court judge on a motion to quash the information holds

the evidence inadmissible, the case will be dismissed. In this manner,

one can obtain something like a pretrial determination of the constitutional


There are a number of significant problems involved in this

use of the preliminary hearing.519 As many magistrates were not

reluctant to point out, resolving constitutional issues at the preliminary

increases the amount of time required for the preliminary

and is probably one of the main reasons for increasing calendar congestion

in the Municipal Court. Note in addition that time spent

considering constitutional issues at the preliminary may not save

time elsewhere in the criminal procedural process. If the prosecution

loses on the issue, it can refile.520 If the defendant loses, he can continue

to litigate the issue by pretrial motion in Superior Court and

even at trial. There is, however, a practical finality in many cases

because the prosecution may choose not to refile or the defendant

518 People v. Gilbert, 63 Cal. 2d 690, 408 P.2d 371, 47 Cal. Rptr. 915 (1965).

519 For one version of the argument against permitting the defendant to raise

constitutional issues at the preliminary hearing, see ADVISORY COMMITTEE NOTE,

PROPOSED FED. R. CRIM. P., 48 F.R.D. 547, 571 (1970). Although the drafters make

reference to the grand jury analogy, they state that the rule is justified by reasons

of “administrative necessity and the efficient administration of justice.” Id. at 572.

This may be true in the federal system but so far as we are aware, the only

empirical study of the question came to the opposite conclusion. D.C. Study, supra

note 3, Pt. I, at xxxv. The Advisory Committee cites no studies in support of its

ipse dixit. The argument that to allow the issue to be raised at the preliminary

would require the issue to be determined twice seems to assume that all of the other

rules are beyond amendment or that there are constitutional reasons why the

defendant who raised the issue at the preliminary could not be precluded from

raising the issue again in the District Court. See Chicago Study, supra note 3, Pt. I,

at 467.

520 See text accompanying notes 319-29, Part I, supra.

[Vol. 18: 916

— 18 UCLA L. Rev. 944 1970-1971


may elect to plead guilty after either fails to persuade the magistrate

or the Superior Court on the constitutional issue. It is also true that

quite often later renewals of the issue are based on the transcript

of the preliminary hearing, thus saving some time and effort when

the issue is renewed.

A second major difficulty with the use of the preliminary for

pretrial adjudication of constitutional issues is that the evidence may

not be an indispensible part of the prosecutor’s case in respect to the

bindover issue before the magistrate. If the evidence is not essential,

the prosecution may simply not offer it at this stage, reserving

it for trial. If, on the other hand, the evidence is offered at the

preliminary there is little motive for the defense to launch an all-out

attack on its admissibility since the attack would not affect the outcome

of the preliminary nor would it be subsequently binding on the

trial judge.

A third objection to the use of the preliminary for this purpose is

that neither side may be prepared to fully litigate the issue at this early

stage in the proceedings. Though altering the manner in which the

prosecutor and public defender prepare their cases might go a long

way toward alleviating this objection, it is still true that because of

the limited amount of knowledge both sides have about the other’s

case many constitutional issues cannot or may not be anticipated.

This lack of notice may be difficult enough when only factual contentions

are involved, but when difficult legal issues are presented

as well, it may be asking too much to expect any sophisticated use of

constitutional doctrine at this stage. 21 There is also the argument

that constitutional issues should not be decided in an “inferior” court.

Given the kind and quality of judges we observed conducting preliminary

hearings, this argument seems more technical then practical.

Given greater assistance from counsel, we think the magistrates

whom we observed were as competent to decide such issues as are

judges of the Superior Court.

Whether wise policy or not, the fact of the matter is that in

Los Angeles, at the time of our study, the preliminary hearing served

as a most important forum for the adjudication of constitutional

issues. Though statistical support is lacking, it is likely that constitutional

rights are vindicated more often at the preliminary hearing

than at any other point in the criminal process.

Though the preliminary hearing functions, fairly smoothly in

this task, it is hindered by some of the same defects, such as the

inexperience of counsel, that generally hamper performance of the

521 See text accompanying notes 62-63, Part I, supra.


— 18 UCLA L. Rev. 945 1970-1971


screening function. Most public defenders apparently feel that the

strictures against putting on a defense at the preliminary 522 extend

to the controverting of the prosecution case on constitutional issues.

Also, because magistrates generally do not articulate the basis of

their rulings, 2 ‘ review of those rulings by motion to quash is probably

more difficult. Finally, all of the participants in the preliminary

are undoubtedly affected in the vigor with which they pursue constitutional

issues by the availability of further mechanisms for raising

these issues at subsequent points in the process.524

At the time of our field observations the preliminary hearing

was only one, though perhaps the most important one, of several

ways of raising constitutional issues. 25 If the defendant failed in his

constitutional objection at the preliminary hearing, he could raise it

again by a motion to quash the information, by a pretrial motion in

the Superior Court and again at trial. If the defendant won, the

remedies of the prosecution depended upon the mechanism used to

obtain the ruling. If the evidence were suppressed at the preliminary,

the only remedy was a refiling. 26 If a motion to quash the information

were granted, the prosecution could appeal.12 7 The prosecution,

of course, had no remedy if the defendant chose to save the objection

until jeopardy had attached at trial.

Subsequent to our observations several proposals to rationalize

the procedures for adjudicating constitutional objections were made

in the Legislature. Most focused on the search-and-seizure issues. 8′

Three of the proposals would have substantially increased the significance

of the preliminary hearing as a forum for adjudicating

constitutional facts by requiring that motions to suppress evidence

be made at or prior to the preliminary hearing. 2′ A bill drafted by

the District Attorney of Los Angles County would have required a

motion to suppress at the preliminary as a condition for a motion in

Superior Court prior to the trial unless grounds for it did not exist

at the time of the preliminary or the defendant was unaware of

them.58 0

522 See text accompanying notes 78-82, Part I, supra.

523 See text accompanying notes 86-87, Part I, supra.

524 See People v. Barrett, 2 Cal. App. 3d 142, 82 Cal. Rptr. 424 (3d Dist. 1969).

525 See Comment, Methods of Challenging Searches and Seizures in Calijornia,

54 CALIF. L. REv. 1070 (1966).

526 See text accompanying notes 319-29, Part I, supra.

527 CAL. PENAL CODE § 1238 (West 1970).



No. 12, at 16 (1967) [hereinafter cited as ASSEMBLY REPORT.]

529 Id. at 18.

580 Id. at 28.

[Vol. 18: 916

— 18 UCLA L. Rev. 946 1970-1971


In the statute ultimately adopted, Penal Code section 1538.5,”‘

the Legislature appears, however, to have accepted the argument

that most public defenders would not be prepared to litigate constitutional

issues at the preliminary hearing.532 Penal Code section

1538.5, limited to search and seizure issues, permits the issue to be

raised at the preliminary but does not require it.533

Although we have no field observations on the impact of section

1538.5 on the conduct of the preliminary hearing in Los Angeles, so

far as we have been able to determine, it has had no effect in diminishing

the significance of the preliminary with respect to constitutional

issues. First, the section specifically preserves mechanisms

for objections to evidence and motions to quash an information. 34

Second, by permitting the motion to suppress to be made at the

preliminary, section 1538.5… enables the defense to move even as to

evidence not offered at the preliminary or evidence not necessary to

support the bindover.536 Finally, if appellate cases are any indication,

most of the motions to suppress in Superior Court are submitted on

the transcript of the preliminary rather than on testimony taken at a

1538.5 Superior Court hearing.3

The 1538.5 procedure is not applicable to constitutional issues

other than search-and-seizure. 38 Although the Assembly Committee

on Criminal Procedure recognized the need for pre-trial hearings to

deal with confessions, lineups, and other factual issues with respect

to the admissibility of evidence, the old non-statutory procedures and

the preliminary hearing continue to be used for these problems.539

In view of developments to date, it would be surprising if any

new procedures for adjudication of constitutional questions did not

begin with the preliminary hearing as a base. It always seems

easier to adapt an existing mechanism than to devise totally new

procedures. Perhaps the eventual solution may be a decision on con-

531 CAL. PENAL CODE § 1538.5 (West 1970).

532 ASSE BLY REPORT at Vol. 22, No. 12, at 16 (1967).

533 CAL.. PENAL CODE § 1538.5(f) (West 1970).

534 Id. § 1538.5(m)-(n). For a discussion of -the procedural consequences of using

one rather than the other of these mechanisms, see People v. Superior Court

(Kusano), 276 Cal. App. 2d 581, 81 Cal. Rptr. 42 (2d Dist. 1969).

535 CAL. PENAL CODE § 1538.5(f) (West 1970).

536 Id.

537 This is somewhat anomalous since one of the features of the § 1538.5

motion is that it permits the superior court judge to weigh the evidence, something

he cannot do on a 995 motion. People v. Superior Court, 276 Cal. App. 2d 581, 81

Cal. Rptr. 42 (2d Dist. 1969).

538 People v. Superior Court, 275 Cal. App. 2d 49, 79 Cal. Rptr. 704 (2d Dist.


539 AssEMBLY REPORT, supra note 528, Pt. II, at 21-22.


— 18 UCLA L. Rev. 947 1970-1971


stitutional issues by the Superior Court made on the basis of a record

made at the time of the preliminary, plus any subsequently developed

evidence. In whatever form, this collateral function of the preliminary

is one which will increase in importance in the future.

  1. As an Occasion for Plea Bargaining

During our study we saw very little use of the preliminary

hearing as a mechanism for disposition of cases. This was a phenomenon

of some interest in view of the fact that the Chicago study had

shown how the preliminary hearing could become a crucial mechanism

for control of the charging decision and for disposition of

cases without trial.540 Furthermore in Alameda County, California

the preliminary hearing apparently plays a significant role in plea

bargaining and dispositions without trial.54′ Although magistrates

in Los Angeles County have complained that the public defender

ought to plead more of his clients guilty at the preliminary,542 the

disposition of cases through guilty pleas is a potential collateral

function of the preliminary which has as yet been unrealized.

For purposes of our discussion we think it important to distinguish

between guilty pleas at or before the preliminary hearing

which obviate the need for the preliminary, and guilty pleas after

the defendant has seen the evidence produced by the prosecutor at

the preliminary. Pleas also must be divided into those that are “onthe-

nose,” i.e., a plea to the charges specified in the complaint, and

those that are to reduced charges, usually as a part of an agreement

with the prosecutor.

The magistrates who criticize the policy of the public defender

not to plead defendants guilty at the preliminary assume that there

are a large number of cases in which it would be proper for defense

counsel to make an “on-the-nose” plea prior to the preliminary hearing.

Such a practice, however, can be justified only in rare cases, and

may not even be justifiable when the client has demanded to enter

such a plea. In almost every case the prosecutor has framed the

charges in such a way as to be able to make or appear to make some

concession in return for a guilty plea.54 Thus, except in cases where

the defense counsel has good reason to believe this is not so, it is

hard to imagine how he could justifiably plead his client guilty without

making some attempt to get the expected reduction in charges.

540 Chicago Study, supra note 3, Part I, at 483.

541 Lippman, Some Perspectives on Research and Prosecutors, 5 THE PROSECUTOR

257, 260 (1969).

542 L.A. Times, Aug. 6, 1968, Part II, at 1, col. 4.

548 See Offices in Los Angeles and Brooklyn, supra note 125, Pt. I, at 240.

[Vol. 18: 916

— 18 UCLA L. Rev. 948 1970-1971


In fact, a defense counsel may not be providing the defendant

with constitutionally adequate assistance if he enters a plea prior to

the preliminary hearing. This was demonstrated in the recent case of

In re Williams.544 The defendant was charged with two counts of

forgery and one count of credit card misuse. On the day of the

preliminary he had the usual brief interview with the public defender

and agreed to plead guilty to one count of forgery in return for a

dismissal of the other two counts and a misdemeanor sentence. The

plea was entered before any hearing, and the other two counts were

dismissed; however, when the defendant showed up for sentencing

in Superior Court he was represented by a different public defender

who was unfortunately ignorant of the earlier bargain.545 The

defendant then attempted to withdraw his plea without success and

received a felony sentence. Subsequently, at a hearing on a writ of

habeas corpus, it was discovered that the public defender was unaware

that under the law as it then stood, and the facts related in the

police report, there was no way his client could have been convicted

of forgery. The California Supreme Court held that the failure of the

public defender to investigate fully the applicable law and the facts

denied the defendant the adequate assistance of counsel and granted

the writ.

Whether or not counsel is constitutionally inadequate when he

permits his client to plead guilty without such additional insights into

the facts as are afforded by the preliminary hearing, Williams surely

suggests that such a course is imprudent. The court’s footnote reference,

“the dangers involved in the appointment of counsel without

the opportunity of adequate preparation, ‘5 46 is particularly applicable

to the assignment practices of the office of the public defender

in Los Angeles. Since the deputy public defender virtually never

sees his client until the day of the preliminary and has scant opportunity

then to “make an independent examination of the facts,

circumstances, pleadings and laws involved,”5 47 it is highly questionable

whether he is able to “offer his informed opinion as to what

plea should be entered.” 48 For the public defender to plead his

client guilty without taking advantage of the additional opportunity

544 1 Cal. 3d 168, 460 P.2d 984, 81 Cal. Rptr. 784 (1969).

545 This is another illustration of the difficulties with the way in which the

public defender assigns cases. See also People v. Johnson, 38 Ill2.d 399, 231 N.E.2d

447 (1967) (public defender relied on erroneous assertions of prosecutor that issue

had already been raised by a prior public defender and decided adversely to defendant).

546 In re Williams, 1 Cal. 3d 168, 176 n.6, 460 P.2d 984, 989 n.6, 81 Cal. Rptr.

784, 789 n.6 (1969).

547 Id. at 175, 460 P.2d at 988, 81 Cal. Rptr. at 788.

548 Id.


— 18 UCLA L. Rev. 949 1970-1971


to investigate the facts afforded by the preliminary hearing is to

skirt closer to the inadequate than is justifiable, whether or not there

is resulting prejudice to the client in the individual case.

Nor is it always in the interests of the prosecutor to bargain

for a plea prior to the preliminary. In several cases we observed,

testimony at the preliminary revealed more serious offenses than

were charged in the complaint, and apparently it is not uncommon

for the case to appear much stronger out of the mouths of the witnesses

than it did on the face of the police report. Taking of the

testimony not only preserves it in the event that the defendant is

subsequently able to withdraw the plea but also provides a basis

upon which it can be shown on later attack that the plea was not an

improvident one.

Once the preliminary hearing has been held, the above objections

to pleading are diminished, but other objections remain. The

most significant of these is the relative inexperience of the public

defenders. A lack of opportunity to research the applicable law in

light of the facts developed at the preliminary may be a minor problem

for experienced counsel, given the stereotyped nature of many of

the cases. For one who starts out knowing no more about the criminal

law than the average law school graduate, to counsel a guilty

plea is considerably more hazardous. Furthermore, inexperienced

counsel lacks more significant practical skills in bargaining, and may

have little basis for predicting likely results at trial or the probable

sentence that would be imposed, as well as the other inputs needed

to make an informed judgment about the proper plea.

Other hurdles to plea bargaining at this stage often mentioned

by our respondents were technical jurisdictional problems.549 If the

proposed disposition were to be to a felony, the magistrate would

have to certify the case to the Superior Court for sentencing anyway,

so little was to be gained by a plea at the preliminary after the

hearing, 550 and there was substantial doubt that this was authorized

by the statute.”S1 In the more likely situation where the proposal was

549 Since guilty pleas were not authorized at the preliminary hearing until

1934, B. WITKIN, CALIFORNIA CRIMINAL PROCEDURE § 135 (1963), it is possible that

the lack of pleas may be a tradition established by habits formed in the old days

rather than on the strategic considerations suggested in the text.

550 This is particularly true since until 1965 the statute appeared to require

that the defendant be incarcerated after a guilty plea. Id.

551 CAL. PENAL CODE § 859a (West 1970) authorizes a guilty plea “while the

charge remains pending before the magistrate.” It was suggested that this meant

no plea could be entered after the defendant had been held to answer, a minor

procedural difficulty in our judgment. If the defendant wished to see the evidence

before the plea, there appears to be no reason why he could not have entered his plea

after the prosecution’s case but before commitment.

[Vol. 18: 916

— 18 UCLA L. Rev. 950 1970-1971


to plead to a misdemeanor, technically the magistrate does not sit

as a judge of the Municipal Court and some lawyers were of the

opinion that he lacked jurisdiction to take a misdemeanor plea or

that he could only do this if a new misdemeanor complaint were


– Given some of the other procedures, such as the submission on

the transcript, which the prosecutors and defenders have engineered

without statutory authority, we are inclined to view these arguments

against pleas at the preliminary as make-weights. Apparently the

courts in Alameda County have not found the California statutes an

insurmountable obstacle to disposing of many criminal cases at

this stage. 5 2

Another argument which probably carries some weight with

prosecutors and defenders but is not often explicitly articulated is

what might be called the public relations problem. Given the notions

current in the jailhouse, and sometimes elsewhere, that the public

defenders are plea-coppers rather than lawyers, it is impolitic for

that office to appear to have its lawyers in too much of a hurry to

have its clients plead. Let the client think about it for a couple more

weeks until the case reaches Superior Court and he will start to

think about the disadvantages of going to trial. Furthermore, the

plea in Superior Court can sometimes be considerably less public

than in the crowded preliminary hearing divisions.

To a lesser extent, perhaps, the prosecutor may be under similar

constraints from his constituency. The police officers and the still

outraged victim are present at the preliminary hearing. If the prosecutor

is going to make substantial concessions without tarnishing a

vigorous enforcement image, the proper time to do so is in Superior

Court when only the defendant and the lawyers are present.

Although recent statutory changes appear to enhance the uses

of the preliminary hearing as an occasion for plea bargaining,”‘ the

full realization of this potential cannot and should not occur without

changes in the staffing patterns of the prosecution and defense.

  1. Foundation for Guilty Plea and Sentencing

— Although the plea does not usually take place at the preliminary

hearing, the transcript of the hearing plays a significant role in the

process of the guilty plea and the subsequent sentence by providing

part of the factual basis for each.

552 See note 541 supra.

553 See, e.g., CAL. PENAL CODE § 17 (West 1970). Esteybar v. Mun. Court, 5

Cal. 3d 119, 485 P.2d 1140, 95 Cal. Rptr. 524 (1971).

19711 :

— 18 UCLA L. Rev. 951 1970-1971


It is considered essential that the judge be aware of the facts

surrounding the crime in order to judge the validity of the plea. The

Federal Rules of Criminal Procedure requires that: “The court shall

not enter a judgment upon a plea of guilty unless it is satisfied that

there is a factual basis for the plea. 5 54 The A.B.A. Minimum Standards

for the Administration of Criminal Justice contains a similar

requirement,”” and the Task Force Report on the Courts also favors

such a procedure.550 Furthermore, the decision in Boykin v. Alabama557

suggests that the Supreme Court feels that some aspects of

the Federal Rule are constitutionally compelled.

It is also essential that the court be aware of the facts in order

to select the appropriate sentence. According to the Task Force

Report: “It is essential that there be systematic procedures for

providing relevant information about the offense and the offender to

the sentencing judge.”55 Here again, Townsend v. Burke559 suggests

the possibility of constitutional underpinnings for this notion.

In Los Angeles County the transcript of the preliminary hearing

is an important part of the mechanism by which facts relevant to

both the plea and the sentence are developed. It is customary for

probation officers to read the transcript of the preliminary in preparing

sentencing reports.0 ° Apparently most of the information

about the offense is taken from the information developed in this

adversary procedure rather than from police reports as is the practice

elsewhere. And in the vast bulk of the contested cases-which

are submissions on the transcript-the judge himself reads the transcript

of the preliminary in reaching his decision on guilt, a reading

which will doubtless have its impact on sentencing.

This function of the preliminary was one which many lawyers

seemed to take into account in their questioning of witnesses at the

preliminary. This was particularly true of the better public defenders

who would regularly inquire into the defendant’s cooperation with

the police, his attitude toward the offense, acts of restitution and

other mitigating factors. Usually such inquiries were quite brief, of

necessity, since often, if objected to, the questioning would be hard

to justify under even the most expansive reading of Jennings.

554 FEo. R. CPm. P. 11 (1966).


PLEAS Or GUILTY 1.6 (1969).

556 TASK FORCE REPORT: THE COURTS, supra note 500, Pt. II, at 13.

557 395 U.S. 238 (1969).

558 TASK FORCE REPORT: THE COURTS, supra note 500, Pt. II, at 18.

559 334 U.S. 736 (1948).

580″CONT. EDUC. BAR, 2 CAL. CRm. LAW- PRACTICE 82 (1969).

[Vol. 18: 916

— 18 UCLA L. Rev. 952 1970-1971


Unfortunately, some magistrates were not particularly tolerant

of this sort of inquiry, and one magistrate was observed to refuse to

permit even a single question concerning mitigating factors despite

what we judged to be a persuasive argument by the public defender

regarding his reasons for the inquiry.


Forty years ago Professor Dession suggested that perhaps the

real appeal of the preliminary hearing/information method of initiating

criminal cases was that it placed tremendous powers in the hands

of the prosecutor, a development considered to be useful by the “lawand-

order” lobby of that time.5″ ‘ Recently Professor Kenneth Culp

Davis has suggested that the criminal process suffers from an excess

of unchecked discretion.562 The wisdom of both these observations

is reflected in Los Angeles today-a leader not only in the

production of smog but also in the manufacture of felons.568

However, contrary to Dession’s pessimistic forecast,564 the preliminary

hearing, at least in Los Angeles, has not become a less useful

device for control of the prosecutor than has the grand jury. Indeed,

largely by virtue of the collateral functions it performs, the preliminary

hearing may well be the most important procedural mechanism

in the administration of criminal justice in this County, though few

of the participants seem to have viewed it as such. By virtue of the

procedural rules governing the hearing and its constitutional role as

the successor to the grand jury,565 the magistrate in the preliminary

is the only judicial officer with sufficient discretionary power to

counterbalance the vast authority given the prosecutor. It is time

that the magistrate began to use these powers.

Several observations of Professor Davis seem to be especially

significant in the context of the preliminary hearing. One of these is

that interim decisions often are more important than final decisions.

566 One of the most serious defects in the administration of the

561 Indictment by Information, supra note 6, Pt. I, at 192.

562 K. DAVIS, DISCRETIONARY JUSTICE 27, 144, 188 ff. (1969).

563 See Lippman, Some Perspectives on Research and Prosecutors, 5 THE

PROSECUTOR 257, 260 (1969).

564 Indictment by Information, supra note 6, Pt. I, at 166.

565 One of our sources, when asked to explain the apparent differences between

the importance of the preliminary in Los Angeles and San Francisco, suggested that

this was due to a stronger Hispanic influence in the southern part of the state and

argued that the magistrate had assumed not only the powers of the grand jury but

the prestige of the Alcalde. Though there may be something to this romantic hypothesis,

see THE ALCALDE SYSTEM IN CALIFORNIA, 1 Cal. 559, 577 (1851), we have

not pursued the inquiry.



— 18 UCLA L. Rev. 953 1970-1971


preliminary hearing was the attitude of all participants that since

the purpose of the hearing was simply to determine if there was

enough evidence to try the defendant, i.e., it was a very low-level

interim decision, the job could be handled in a perfunctory fashion

and with a minimum investment of time and talent. We hope this

Article has demonstrated how faulty that attitude is in Los Angeles.

Professor Davis has also pointed out that one of the most useful

checks on discretion is rule-making and that any body which has

discretion must, of necessity, have also the power to make rules

stating how that discretion should be exercised. 67 Students of both

civil and criminal procedure will be struck by the comparative use

of rules in the two different systems. On the civil side one can find

literally hundreds of pages of state-wide and local rules for the exercise

of even the most exotic forms of jurisdiction; at the same time

the criminal courts operate, often inconsistently, on the basis of

customs and practices known only to regular practitioners in a particular

court. 568

Many of the reforms suggested in the course of this Article

could probably be brought about by judicial rule-making, though

some would obviously require legislation. Take, for example, the

screening function. We have suggested that there is more involved

in the decision to hold the defendant to answer than the statutes and

appellate decisions would suggest. Magistrates engaged in the daily

exercise of the screening functions may be better equipped than appellate

courts to decide which of the various aspects of screening

may appropriately be accomplished at the preliminary hearing.

As a conservative example, consider the problem posed by the

blurring of the summary judgment and demurrer functions.569 It

sometimes happens that review of the magistrate’s decision to hold

the defendant to answer is hampered by the difficulty of determining

whether the magistrate held (a) an erroneous view of the applicable

law, in which event the Superior Court can override him, or (b) a

bizarre view of the facts, in which event his determination may have

to be honored. A similar problem can arise in reviewing his constitutional

decisions. Requiring all magistrates to do what some do now-

567 Id. at 55, 68. Davis argues that courts ought to require those with discretion

to devise rules for its exercise, a notion which would appear to apply a fortiori to

courts themselves.

568 See generally 23 WEST’S ANNOT. CAL. CODES, COURT RULES (1964). Of the

rules for Superior Courts, there is only one rule dealing with criminal cases, and

only one Municipal Court rule deals solely with such cases (Rules 248, 801). On

the other hand more than a dozen rules deal with civil pre-trial (Rules 208-22).

569 See text accompanying notes 98-100, Part I, supra.

[Vol. 18: 916

— 18 UCLA L. Rev. 954 1970-1971


state briefly for the record the basis of their ruling-would do much

to alleviate this difficulty.

If the rulemakers wished to be more daring, they might consider

some of the other screening functions presently spoken of only in

whispers. In a recent decision 570 a Superior Court judge was reversed

for dismissing an “auto theft” case involving a rented car on the

ground that the case would be more appropriately dealt with as a

civil matter, or to use his more pungent phrasing, that the prosecutor

was attempting to turn the court into a “collection agency.” Whether

this is considered an exercise of the allocation of resources function

or the community judgment function, it is clear that what the Superior

Court lacked the power to do was well within the discretion of

the magistrate.

The screening function most in need of expansion is the litigant

control function, particularly with respect to prosecutorial overcharging

such as in “contempt of cop” cases.5 71 In one recent case it

was held that the Superior Court was powerless to accomplish this

on a motion to quash the information 72 The defendant had kicked

the officer twice in the shins with his bare feet after the officer engaged

in a provocative act at the scene of an arrest. The officer was

wearing motorcycle boots and suffered no injury, except to his

dignity. Yet the defendant was prosecuted for a felony with a tenyear

maximum sentence.578

The point, however, is not that everyone would agree as to what

constitutes overcharging, but that there ought to be some consistent

policy with respect to the exercise of magisterial discretion.574

Whether the defendant is to be held to answer for a felony in such

cases ought not to depend upon the magistrate to whom the Master

Calendar Division sends his case.

Rulemaking on such issues might have another advantage as

well. The prosecutor might be able to attack the validity of such

rules by seeking a writ, a procedure which might accomplish what

cannot now be done due to his lack of any review of individual

decisions.5 75 In addition, an imaginative set of rules might serve to

570 People v. Curtiss, 4 Cal. App. 3d 123, 84 Cal. Rptr. 106 (2d Dist. 1970).

571 See text accompanying notes 270-79, Part I, supra.

572 People v. Martinez, 3 Cal. App. 3d 886, 83 Cal. Rptr. 914 (2d Dist. 1970).

573 CAL. PENAL CODE § 243 (West 1970).

574 That it is possible to suggest guidelines for the exercise of such discretion is

suggested by a case involving discretionary dismissal in the superior court. See People

  1. Superior Court, 69 Cal. 2d 491, 446 P.2d 138, 72 Cal. Rptr. 330 (1968).

575 Such rulemaking might also have the effect of requiring the prosecutor to

draft some rules dealing with how he exercises his discretion. At the time we conducted

our observations, the District Attorney’s Operations Manual had elaborate

1971] – ‘

— 18 UCLA L. Rev. 955 1970-1971


alleviate some of the disadvantages of inexperienced counsel at the

hearing by serving as a substitute for nonexistent training manuals

for the new public defenders. 576

In addition to recognition and regulation of the various screening

functions, 57

7 rules might appropriately limit the power of the

prosecutor to refile. Where there is only a single magistrate, it is quite

likely that even without rules, he will probably recognize a case

previously dismissed and perhaps require, even if not at a conscious

level, special justification for the prosecution refiling. Why should

not a multi-judge court, especially, have a rule that refilings will be

permitted only on notice and showing of good cause? A greater

finality might encourage better preparation on both sides as well. It

might also motivate the powerful police-prosecutorial lobby to presrules

governing the handling of incoming mail and obtaining approval for dismissals

of the case. By comparison, the rules under which the complaint deputy was supposed

to function were apparently unwritten. These supposed standards were filled

with anomalies. For example, it was felt necessary to require something extra to

file a complaint on a sex case, yet despite the fact that most of the factors supporting

that policy were equally applicable to “contempt of cop” cases there were no

special rules applicable to cases where the “victim” of the crime was a police officer.

One way in which rulemaking by magistrates might affect the prosecutor can

be seen in the area of discriminatory enforcement. Cases which raise this problem

quite often arise out of prosecution for exotic offenses. It ought to be possible to

draft a rule which requires that as part of his case in a prosecution for violation of

little used sections of the Penal Code or in areas where “selective enforcement” is

otherwise known to exist, the District Attorney ought to show rules of his own

which demonstrate that the decision to prosecute in this case was a principled one,

not simply a device to “get” the defendant who could not be proved guilty of some

other crime.

576 See text accompanying note 57, Part I, supra.

577 It would require further research into other parts of the criminal justice

system in Los Angeles County to assert with confidence exactly which of the

screening functions we have described ought to be performed by the magistrate at

the preliminary hearing and which reserved for other tribunals. It is clear that the

demurrer and summary judgment functions are conventionally regarded as proper.

The litigant control and abuse-of-process functions are probably equally defensible

if the objection can somehow be cast in terms of constitutional doctrine. Arguably

exercise of the directed verdict function is foreclosed by the decision of the Supreme

Court in Williams v. Superior Court, 71 Cal. 2d 1144, 458 P.2d 987, 80 Cal. Rptr.

747 (1969). See text accompanying note 200, Pt. I, supra. Although at first blush it

seems that the predictive function might well be left to the prosecutor, it is well to

remember that his view of the case may well be based on the defendant’s record or

inadmissible confessions or polygraph results. The Prosecutorial Discretion, supra

note 111, Pt. I, at 1780. Furthermore, he may be predicting not the likelihood of

conviction but the chances of a guilty plea, a prediction which may turn on factors

that ought not to effect the outcome such as the predilections of defense counsel,

sentencing practices or overcharging. Id. at 186. It may also be that self-interest,

i.e., a desire to push much of the work to Superior Court, might make the magistrate

ineligible to exercise the limitation of jurisdiction function, in the absence of any

review. The remaining functions are perhaps even more debatable; what is not is

that these issues need to be honestly faced rather than concealed in a ruling which

purports to be based on the sufficiency of the evidence at the preliminary. A.B.A.

STUDY, supra note 3, Pt. I, at 155.

[Vol. 18: 916

— 18 UCLA L. Rev. 956 1970-1971


sure for some sort of legislation to provide for review of -the magistrate’s

decision in a more rational fashion than the present. refiling


Another facet of the preliminary hearing which suffers from the

lack of rules is the exercise of the various collateral functions. There

ought to be some principle beyond the state of the calendar and the

magistrate’s digestion to determine what sort of discovery will be

tolerated, or how much evidence of mitigation may be inserted in the

transcript. If nothing else, rules would force magistrates to take

cognizance of more of the collateral functions and enable them to run

their courts more intelligently. This end also requires that the magistrate

get more feedback from points further along in the system.5 78

He ought to receive not only more useful statistical inputs, but also

more information about the disposition of cases on, for example, motions

to quash. There should also be more interchange among the

magistrates about how they handle cases. This, of course, would take

place were they to engage in the process of drafting rules.17



After this Article went to press, the California Supreme Court

decided Jones v. Superior Court of San Bernardino County.’ The

opinion by Justice Burke is too significant for us to permit it to pass

without comment.’ We trust that any reader who has trudged this

578 This is needed to counter the subtle effect of a phenomenon, perhaps partly

described in Cook County Indigent Defendants, supra note 6, Pt. I, at 627. This is

the effect of conflicting assumptions about the operation of other parts of the system.

Contrary to what one might expect about the fineness of the screens beyond

the preliminary hearing, in fact later screening may be considerably looser because

(1) an assumption that bad cases must have been screened out earlier so this one

can’t be as weak as it seems and (2) a reluctance to abort the prosecution because

the longer it has survived prior screening, the more time and money has been invested

in it.

Though the subject requires closer study, we think it likely that if the magistrate

is influenced in his decisions by what we think are erroneous assumptions

about the rigor of the scrutiny the case undergoes upstream and- downstream from

the preliminary, other decision makers may also be effected in this way. One commentator

has argued that the reason the U.S. Attorney is more responsible than his

state counterpart is that he is under no illusions about judicial screening of the

decision to prosecute. See The Prosecutorial Discretion, supra note 111, Pt. I.

579 We have said nothing about the form such rules might take, but the suggestion

of Professor Davis for rules cast in the form of decisions in hypothetical

cases seems attractive here. K. DAVIS, DISCRETIONARY JUSTICE 60 (1969). Rules

aside, the interchange among magistrates might well take place on this basis-a

model apparently used with some success in sentencing, another area where discretion

has caused problems.

1 4 Cal. 3d 660, 483 P.2d 1241, 94 Cal. Rptr. 289 (1971).

2 The perceptive reader will note that the text has not been altered to reflect

— 18 UCLA L. Rev. 957 1970-1971


far with us can make it up one more hill for perhaps a clearer view

of what lies beyond.

Jones arose as a writ of prohibition to review the denial of a

motion to quash the information. The defendants were charged in the

complaint with rape, oral copulation, and sodomy. The sole witness

at the preliminary hearing was the victim, whose testimony was not

only contradicted by the defendants but was also discredited by

her own admissions and medical evidence.8 At the conclusion of the

preliminary, the magistrate found that the girl willingly engaged in

sexual intercourse with the defendants, and that the alleged acts of

oral copulation and sodomy never took place.4 Since the victim

testified that she was under the age of consent, however, the magistrate

held the defendants to answer for statutory rape.

The District Attorney ignored the decision of the magistrate

and filed an information in the Superior Court charging the defendants

with rape, oral copulation and sodomy, but not statutory rape.

The defendants moved to have the information set aside in its

entirety, but the Superior Court denied the motion. The defendants

sought a writ of prohibition from the California Supreme Court,

contending that the information was invalid because it charged the

commission of offenses which were expressly rejected by the coma

number of developments that bear indirectly though significantly on the of conduct the preliminary hearing. Among the decisions that need to be taken into account

are: Ashe v. Swenson, 397 U.S. 46 (1970), holding that the double jeopardy clause

requires the application of collateral estoppel to criminal cases; Esteybar v. Mun.

Court, 5 Cal. 3d 119, 485 P.2d 1140, 95 Cal. Rptr. 524 (1971), holding it a violation

of separation of powers to require the consent of the prosecutor before a magistrate

may determine that a charged offense is to be tried as a misdemeanor; United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971), requiring the government to promulgate

and enforce a set of rules to avoid sanctions in the future.

In addition there have been various proposals for legislative reform of the pre- liminary hearing. A committee of judges of the Los Angeles Superior Court proposed alterations that in practice would probably have amounted to abolition of the preliminary in favor of written pleadings as a screening device. See L.A. CTY.


the other hand, a study by the State Auditor of the Los Angeles Superior Court

reached conclusions about the significance of the preliminary which are similar to

ours and suggested that its operation be strengthened and assumed by judges of the Superior Court who would presumably have a greater interest in the preservation

of jurisdictional integrity and a more significant capacity to perform a greater variety of the “screening” functions. JoInT LEGIsrTwvE AUDIT COMMITTEE, TRIAL


8 The “victim” knew the defendants, had herself initiated the ride that resulted

in the alleged rape, had agreed during the course of the crime to future dates

with the defendants and after the incident drove the sleeping defendants back to their apartment. She further admitted to drug usage and intercourse with her present

boy friend. She also claimed to have been previously raped while on drugs by a boy

she subsequently dated for several months. A doctor who examined her after the

alleged rape could find no physical evidence to corroborate her story. 4 4 Cal. 3d at 603-64,

MIo. 18: -916

— 18 UCLA L. Rev. 958 1970-1971


mitting magistrate. The prosecutor’s argument to the Supreme Court

was based upon a line of cases which held that “transactionally related”

offenses can be charged in the information even though the

magistrate expressly or impliedly found that there was no probable

cause to believe the offenses had been committed. 5

The Supreme Court unanimously rejected the argument in an

opinion which speaks of “interpreting” the prior decisions but instead

goes a long way toward overruling them.6 The opinion begins with a

recognition that a literal interpretation of Penal Code section 739,7

which permits an information to be filed charging the defendant with

the offenses named in the magistrate’s order of commitment or any

offenses shown by the evidence to have been committed, would be

inconsistent with the California Constitution, which authorizes the

use of the information only following “commitment by a magistrate.”


The court acknowledges the existence of the rule, articulated in

Parks v. Superior Court,9 upon which the prosecutor relied, but holds

that if the rule were to authorize the action of the prosecutor in this

case it would be unconstitutional.’ ° The court concludes “that Parks

does not permit the district attorney to ignore material factual findings

of the magistrate.”” The court appears to hold that an offense

cannot be one “shown by the evidence to have been committed” if

the magistrate has made a contrary finding of fact on any element

of the crime.’

If the magistrate made findings of fact in accordance with the

charged crime but erroneously applied the law to the facts as found,

then the prosecutor could add the rejected charges as a method of

seeking review of the magistrate’s legal ruling.’3 According to the

court, this was the historical purpose of the clause in section 739

which permitted the District Attorney to add offenses to the in-

5 See text accompanying notes 330-361, Part I, supra.

6 The court’s efforts to reconcile this decision with some of the earlier cases

.are, to us, dubious. The point, however, is not too important. Whether the court

squarely reverses its earlier decisions or pours hitherto unsuspected limitations into

them is of concern primarily to the editors of Shepard’s.

7 CAL. PENAL CODE § 739 (West 1970).

8 4 Cal. 3d at 664; CAL. CONST. art. I, § 8.

9 38 Cal. 2d 609, 241 P.2d 521 (1952).

10 4 Cal. 3d at 665-66.

11 4 Cal. 3d at 666.

12 Id. This is the only way we can reconcile the court’s statement that prohibition

was granted because the defendant was charged with crimes “not shown by

the evidence to have occurred” with the fact that the victim had testified that they

did take place.

is Id.


— 18 UCLA L. Rev. 959 1970-1971


formation that were not included in the order of commitment. This

section was not intended to allow the magistrate’s findings of fact

to be ignored. 4 Finally, the opinion points out that a contrary holding

would in large measure defeat the efforts in Jennings to make

the preliminary hearing a meaningful screening device.’

To us, Jones is an opinion rich with significance for the operation

of the preliminary hearing. The court directly confirmed the

power, earlier recognized only in dicta, of the magistrate to resolve

disputed issues of fact.'” It is important to recognize that this was

not a case in which the evidence of the prosecution was “inherently

incredible”; if the magistrate had chosen to believe the prosecutrix

rather than the defendants, the prosecution clearly had a prima

facie case. Thus, the magistrate was not simply exercising what we

have called the “directed verdict” or “summary judgment” screening

functions. He may have engaged in the “predictive function,”

though it is not possible to determine this from the facts of the case.

But whatever name one gives his action, it is clear that the court

has approved an exercise of magisterial power that goes beyond the

narrow functions sometimes assigned the preliminary by prosecutors,

scholars and even the judges themselves.'” This conclusion is further

bolstered by the following language of the court:

“… it is evident that were the People’s contention accepted, it would

render the preliminary examination procedure largely meaningless,

at least insofar as that procedure was designed to protect the accused

from groundless or unsupported charges.’ 8

This, to us, implies a recognition by the court of the fact that the

preliminary hearing may properly serve a number of functions beyond

screening, those we have labeled the “collateral functions.”

One ought to recognize, however, that the opinion has a number

of gaps which may be either loopholes for the erosion of its significance

or openings for further expansion. The most obvious of these

is that the opinion does not apply to cases where the magistrate does

not make findings. 19 The law does not require formal findings and

14 Id.

15 4 Cal. 3d at 667-68.

16 See our discussion in Part I, section III D(b).

17 As in the case of the magistrate in Jennings. See text accompanying notes

397-400, Part I, supra.

18 4 Cal. 3d at 666-67 (emphasis added).

19 The court stated:

Instead, we have concluded that Parks does not permit the district attorney

to ignore material factual findings of the magistrate. Although the district

attorney may, under Parks, challenge the magistrate’s ultimate finding that

the evidence is legally insufficient to show that the charged offense or offenses

occurred, that challenge must be made within the context of the

magistrate’s findings on the evidence.

4 Cal. 3d at 666. Apparently in cases where there are no findings, it is to be presumed

that the magistrate refused to commit in an exercise of the demurrer function. This

[Vol. 18: 916

— 18 UCLA L. Rev. 960 1970-1971


our study suggests that it is rare to find even the sort of informal

indicia of the magistrate’s view of the facts that were characterized

as “findings” in Jones. It was, however, our impression that such

remarks were more common where the decision of the magistrate

was adverse to the prosecutor. Whether the decision in Jones might

be expanded to clearly implied factual findings is unclear. Nor does

the opinion give any hint that the court might, as we have urged,

someday require magistrates to more clearly enunciate the basis of

their decisions.

Even more important to the ultimate impact of Jones is how

the court will apply it to the practice of prosecutorial refiling before

a second magistrate, a much more common manner of avoiding

magisterial factfinding. Most, if not all, of the court’s arguments in

favor of respecting the magistrate’s factual determinations seem

equally applicable to an attempt to relitigate the same evidence

before a different magistrate.2″ Thus, the next time the court takes

up the refiling phenomenon, it will have to consider the impact of

Jones on the previous cases. 21

Finally, if, as the court says in Jones, the purpose of the “shown

by the evidence” clause of Penal Code section 739 is to give the

prosecutor a method of reviewing the magistrate’s legal rulings,

then what purpose is served by limiting this review to “transactionally

related” offenses? Indeed, one might ask whether the reasoning

of Jones might not permit the filing of an information even where

there was no bindover so long as the magistrate’s findings of fact

would have compelled a bindover if he had correctly applied the

law. 22

Though Jones deserves careful reading and a more thorough

explication than these paragraphs, we forego the temptation to say

more. We will conclude with the observation that the decision in

Jones confirms our belief that far from being a moribund formality,

the preliminary hearing in California may well be the one procedural

mechanism which is capable of maintaining its vitality despite the

pressures which have turned much of the rest of the criminal process

from an adversary to an administrative system.

presumption may not be in accordance with the facts. Perhaps it was intended (a)

to increase the possibility of review of his decisions in the Superior Court and (b)

to encourage him to make factual findings or otherwise clarify the basis of his

refusal to commit.

20 See our discussion in section III E, Part I, supra.

21 When the court next considers the refiling phenomenon, it will also have to

consider not only the impact of Jones on the previous cases but also the effect, if

any, of the rulings of the United States Supreme Court that the doctrine of collateral

estoppel is constitutionally required in criminal cases by virtue of the prohibition

against double jeopardy. See Ashe v. Swenson, 397 U.S. 46 (1970).

22 See text accompanying notes 354-61, Part I, supra.


— 18 UCLA L. Rev. 961 1970-1971