TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 7.2. Filing of Charges Following a First Appearance; Preliminary Hearing; Bind-Over
The Prosecutor’s Election; Consultation with Counsel.
Election. Where a State Prosecutor, or a member of any other body vested with prosecutorial authority in the State of Ridgeway, is present at a first appearance held under Rule 3.1, that prosecutor may decide whether the State intends to file charges, as 6 R. Stat. § 131.204, subsection (b), provides. Charges are filed as Rules 3 and 3.2 require.
Consultation a Precondition. The period fixed by subdivision (2) and the arraignment required by subdivision (3) proceed only where the State has indicated its intention to file charges and the defendant has been offered an opportunity to consult with defense counsel, as 6 R. Stat. § 131.204(b)(a) requires. The court shall enter upon the record that the opportunity was offered and whether it was taken. Where the opportunity has not been offered the court shall cause it to be offered forthwith; and where it cannot be offered, the defendant shall not be held under subdivision (2) and shall be released, the State remaining free to file an accusatory instrument and to proceed under subdivision (2)(b).
The Fifteen-Minute Period.
Length. Where subdivision (1)(b) is satisfied, the defendant shall be held for no more than fifteen (15) minutes while the State files charges, as 6 R. Stat. § 131.204(b)(a)(1) requires. The period runs in real time from the State’s indication of its intention to file, is computed as Rule 46(4) and Rule 46(8) provide, and shall not be enlarged by any judicial officer.
Failure to File Within the Period. Where charges are not filed within the period, the defendant shall be released from custody. Release does not bar the later filing of an accusatory instrument upon the same conduct. Where the defendant is so released, the court may use its prior finding of probable cause under Rule 3.1 and 6 R. Stat. § 131.204 to summon the defendant once again upon that instrument, as 6 R. Stat. § 131.204(b)(a)(2)(A) permits; the summons issues as Rule 6 provides and carries the presence warning prescribed by Rule 18.1.
Arraignment; Plea. Where charges are filed within the period fixed by subdivision (2), the defendant shall be arraigned, as 6 R. Stat. § 131.204(b)(a)(2) requires and Rule 7 provides, and shall be allowed to enter a plea at the arraignment, as 6 R. Stat. § 131.204(b)(a)(3) requires. Rule 3.1(5)(d) does not preclude an arraignment held under this subdivision.
Preliminary Hearing; When Permitted.
Discretionary; Not-Guilty Plea Required. A preliminary hearing is permitted, at the court’s discretion, where the defendant has entered a plea of not guilty, as 6 R. Stat. § 131.204(b)(b) provides. The court may permit a preliminary hearing upon the motion of either party or upon its own initiative, and shall state upon the record its determination to permit or to refuse one.
Availability Not Confined to the First Appearance Track. Subdivisions (4) through (13) of this rule apply to every defendant who has entered a plea of not guilty upon an accusatory instrument, whether the defendant was arraigned under subdivision (3) upon charges filed after a first appearance, was arraigned upon a summons issued under Rule 6, or was arraigned after an arrest upon an accusatory instrument under Rule 7(1)(b). Subdivisions (1) through (3) of this rule apply only where a first appearance has been held under Rule 3.1.
Purpose. The preliminary hearing determines whether there is probable cause for a criminal trial upon the charges, and whether the charges shall be bound over for trial. Where the State proceeds by criminal information, no grand jury sits and no indictment is found, and the preliminary hearing is the occasion upon which a judicial determination of probable cause for trial is made. A defendant charged by criminal information who has pleaded not guilty may move for a preliminary hearing under this rule.
Indictment. Where the charge is contained in an indictment, the finding of the indictment by the grand jury under Rule 5 is the judicial determination of probable cause for trial, and no preliminary hearing is required. The court may nevertheless permit one in its discretion.
Time. A preliminary hearing shall be held within seventy-two (72) hours of the entry of the plea of not guilty, and in every case within the period allowed by Rule 46(1), unless the court for cause stated upon the record fixes a later date within that period. Where the defendant is held in pre-trial detention the court shall set the hearing at the earliest practicable time. Neither the expiration of the period of pre-trial detention permitted by Rule 7.1(2) nor the defendant’s release upon that expiration abates a preliminary hearing, discharges a count, or excuses the defendant from appearing at it; and the court shall not order a defendant released before that period has run in order to hold a hearing under this rule.
Who Presides.
A preliminary hearing may be conducted by a Superior Court Judge; by a magistrate judge assigned to conduct pre-trial proceedings under 3 R. Stat. § 131.203 and Rule 47(4); or, where the hearing follows a first appearance held under Rule 3.1 and an arraignment held under subdivision (3), by the magistrate judge who conducted them, as Rule 47(3)(f) provides.
A magistrate judge may determine that probable cause exists and may enter the order of bind-over, that determination terminating no charge and no defense and being non-dispositive within Rule 47(5).
A magistrate judge shall not enter an order discharging a count under subdivision (8)(b), that determination being dispositive within Rule 47(6). The magistrate judge shall instead submit proposed findings, a report, and recommendations under Rule 47(7), which have no effect unless adopted, modified, or rejected by a Superior Court Judge. Pending that action the count is neither bound over nor discharged, and the defendant shall not be held in custody upon that count alone.
Conduct; Presence; Counsel.
Critical Stage. A preliminary hearing is a critical stage of the proceeding. The defendant is entitled to be present as Rule 18(a) provides, and counsel shall be appointed under Rule 8(8) where the defendant is not represented and has not waived counsel under Rule 8.1.
Where Held; Record. The hearing is held in open court in the proceeding communications of the case, or in-game where the court so directs, and is maintained upon the record.
Order of Proceeding. The prosecuting attorney shall present the State’s showing. The defendant may cross-examine each witness the State produces and may be heard upon the sufficiency of the showing. The defendant may offer evidence but is not required to do so.
Not a Trial of the General Issue. No finding made at a preliminary hearing is a finding of guilt, and no ruling made at it upon the admissibility of evidence binds the court at a trial or at an evidentiary hearing at which the Ridgeway Rules of Evidence apply.
Evidence; Standard; View of the Evidence.
Hearsay. The rule against hearsay does not apply at a preliminary hearing held under this rule, as 6 R. Stat. § 131.204(b)(c)(1)(B) provides, and the court may receive and act upon hearsay, a recording, a capture, a log, an in-game record, and any other evidence it finds reliable. This paragraph applies to a preliminary hearing held under this rule only, and does not affect the application of the Ridgeway Rules of Evidence at any other proceeding, including a hearing under Rule 29.1.
Privileges Preserved. Title Five of the Ridgeway Rules of Evidence, governing privileges, applies at a preliminary hearing, as Rid. R. Evid. 101(6) requires.
Standard. The burden of proof to find probable cause at a preliminary hearing is met where the prosecution presents evidence sufficient to induce persons of ordinary prudence and caution to entertain a reasonable belief that the defendant committed a crime, as 6 R. Stat. §§ 131.204(b)(1) and 131.204(b)(c)(1) provide.
View of the Evidence. The court is obligated at a preliminary hearing to view the evidence in the light most favorable to the prosecution and to make all reasonable inferences in favor of the prosecution, as 6 R. Stat. § 131.204(b)(c)(1)(A) requires. The court shall not weigh the credibility of a witness against the prosecution, and shall not resolve a conflict in the evidence against it.
Determination.
Bind-Over. Where the court determines that there is probable cause for a criminal trial upon a count, it shall bind that count over to the Superior Court for trial, as 6 R. Stat. §§ 131.204(b)(2) and 131.204(b)(c) permit. The order of bind-over shall identify each count bound over and the evidence relied upon, and shall be entered upon the docket.
Effect. Upon the entry of the order the count stands for trial before a Superior Court Judge, the clerk shall cause the papers required by Rule 3(4) to be entered upon the docket of the matter, and the court shall issue the order scheduling pretrial proceedings that Rule 7(2)(e) requires. Where a magistrate judge presided, the case is thereupon returned to the Superior Court Judge to whom it is assigned.
No Third Disposition. The court shall bind over or discharge each count. It shall not continue a count undetermined, and the failure to enter either order does not of itself dispose of a count. Where a magistrate judge presides and would discharge a count, the magistrate judge discharges the duty imposed by this paragraph by submitting the report and recommendations that subdivision (5)(c) requires, and the count is determined upon the action of the Superior Court Judge under Rule 47(7).
Discharge. Where the court determines that there is no probable cause as to a count, it shall discharge the defendant upon that count, shall dismiss that count without prejudice, and shall order the defendant released from custody held upon it alone. A discharge under this paragraph is not an acquittal, does not bar a later accusatory instrument charging the same offense upon a sufficient showing, and does not bar the presentation of the matter to a grand jury. Subdivision (12) governs the State’s review of the order.
Findings. The court shall state its determination upon the record as to each count.
Waiver. The defendant may waive a preliminary hearing in writing or upon the record in open court. The waiver shall be made by the defendant personally, the defendant being represented by counsel or having waived counsel under Rule 8.1. Upon a waiver no preliminary hearing is held, no determination is made under subdivision (8), the counts stand for trial, and the clerk shall cause the papers required by Rule 3(4) to be entered upon the docket of the matter.
Failure to Appear. Where a defendant fails to appear at a preliminary hearing after proper notice, the court may enter a criminal default and issue a default warrant under Rule 18.2, and the government may petition to declare the defendant a fugitive from justice under Rule 33 and 6 R. Stat. § 131.502(b).
Use of the Record.
Testimony given at a preliminary hearing is admissible at a later proceeding only as the Ridgeway Rules of Evidence permit.
An indictment shall not be dismissed on the ground that the evidence before the grand jury consisted in whole or in part of the record of a preliminary hearing, as Rule 4(7) provides.
The record of a preliminary hearing is available to the defendant and to counsel without cost and without motion.
Review. No interlocutory appeal and no report may be taken of an order binding charges over for trial, as Rule 15(a)(3) and Rule 34(3) provide, and the defendant’s remedy for an erroneous bind-over is a motion to dismiss under Rule 13(c). An order discharging the defendant upon a count is an order dismissing a count of an information or indictment, from which the State may appeal under 6 R. Stat. § 131.805 and Rule 15(a)(1); the State may in the alternative proceed as subdivision (8)(b) permits.
Effect Upon Other Periods. A preliminary hearing does not enlarge the period of pre-trial detention permitted by Rule 7.1(2), and does not extend any period prescribed by Rule 19.