18 UCLA L. Rev. 916 1970-1971
THE PRELIMINARY HEARING IN LOS
ANGELES: SOME FIELD FINDINGS
AND LEGAL-POLICY OBSERVATIONS
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 COLLATERAL FUNCTIONS OF THE
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.
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
also B. WITHIN, CALIFORNIA CRIMINAL PROCEDURE § 132 (1963).
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
- 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.
- 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).
420 See, e.g., D. LOUISELL, MODERN CALIFORNIA DISCOVERY, Pt. II, DISCOVERY
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.
WEINREB, CRIMINAL PROCESS 785-86 (1969).
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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
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 ..in the
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questioning of the witnesses and hence in the liminary. transcript of the pre-
- 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
- “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
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
[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
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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).
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UCLA LAW REVIEW
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
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
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.
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— 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
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.
- “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).
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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).
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
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
- 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
UCLA LAW REVIEW
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.
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.
- 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
UCLA LAW REVIEW
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:
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.]
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
4)‘)o Co 0′, (N w Co
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— 18 UCLA L. Rev. 933 1970-1971
UCLA LAW REVIEW
. 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:
ACQUITTAL RATE IN COMPARISON TO MODE OF TRIAL
TRIAL BY TRIAL ON
JURY – COURT TRANSCRIPT
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
UCLA LAW REVIEW
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
475 CAL. ATT’Y. GENERAL, REPORT OF SURVEY OF ADMINISTRATION OF JUsTICE
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.
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
UCLA LAW REVIEW
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).
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,
[Vol. 18: 916
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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
- MECHANISM FOR DETERMINING THE LEGALITY OF DETENTION
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
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).
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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).
498 See B. WITKJN, CALIFORNIA CRIMINAL PROCEDURE § 138 (1963); CONT. EDUC.
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.
500 THE PRESIDENT’S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION
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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
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.
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UCLA LAW REVIEW
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.
- 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).
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1971′, PRELIMINARY’, HEA RING
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
- 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
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.
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UCLA LAW REVIEW
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,
520 See text accompanying notes 319-29, Part I, supra.
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— 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
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.
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UCLA LAW REVIEW
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
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).
528 CAL. ASSEMBLY INTERIM COMMITTEE ON CRIMINAL PROCEDURE, REPORT ON
PROCEDURE FOR CHALLENGING EVIDENCE OBTAINED BY SEARCH AND SEIZURE, Vol. 22,
No. 12, at 16 (1967) [hereinafter cited as ASSEMBLY REPORT.]
529 Id. at 18.
580 Id. at 28.
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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).
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.
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UCLA LAW REVIEW
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.
- 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.
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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
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.
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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
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.
- 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).
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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).
555 ABA MiNiMum STANDARDS FOR THE ADMINISTRATION OF CRIMINAL JUSTICE,
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.
566 K. DAVIS, DISCRETIONARY JUSTICE 22 (1969).
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UCLA LAW REVIEW
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
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
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 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
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
- 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
UCLA LAW REVIEW
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
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
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
1971] PRELIMINARY HEARING
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
AN ADDENDUM ON JONES V. SUPERIOR COURT
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
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
UCLA LAW REVIEW
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.
SUPERIOR COURT, SPECIAL JUDICIAL REFORM COMMITTEE, REPORT 1-3 (1971). On
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
COURTS: REvIEw OF COURT PROCEDURES 55-60 (1971).
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.
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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
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
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
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