In New Mexico, before you are officially charged in the District Court with a felony, you have the right to a formal finding of probable cause. This is a protection against unsubstantiated charges that could harass a person with the criminal courts. The State must have evidence that meets a certain level of proof: probable cause that you committed a crime. The prosecutor can establish this proof in two ways: either by a judge in a preliminary hearing or by a panel of grand jurors.
A preliminary hearing, or “prelim,” is often called a mini-trial. The goal for the prosecutor at the prelim is to prove probable cause that you committed this crime. Like a trial, the prosecutor must bring witnesses to prove their case. The prosecutor and the witnesses must follow the rules of evidence. If they don’t, your lawyer can object. And, like a trial, your lawyer can cross-examine the witness to test and challenge the strength of their testimony.
Before the preliminary hearing, the prosecutor must disclose the police reports, lapel videos recording the investigation, and other records in their possession. This will give you and your lawyer a chance to prepare for the hearing by evaluating the nature and strength of the evidence.
Since your attorney will interact with the prosecutor, and since you will both be educated about the evidence, you may be in a position to negotiate with the prosecutor before the prelim. Negotiating might involve trying to secure an attractive full resolution to the case. Or, negotiating may be more limited, for example, you may agree to waive your right to a preliminary hearing in exchange for the prosecutor proceeding with less serious charges.
It is possible that the prosecutor will be unreasonable and therefore unwilling to negotiate. It may also be that the prosecutor cannot negotiate for good and fair reasons, and thus the case needs to be litigated with a prelim.
If the State can meet the relatively low burden of proof for probable cause, then they can proceed with the case. The case will proceed to a District Court Arraignment where you will have to enter a plea. Sometimes, the prosecutor can’t meet the burden of proof, and the case is dismissed. This may be due to flaws in the case itself or possibly due to the unwillingness of witnesses to appear for the hearing.
Since the preliminary hearing requires the disclosure of evidence, testimony from witnesses, and interaction between the lawyers and the judge, a preliminary hearing is preferable to a grand jury hearing. The procedure of a preliminary hearing gives you and your attorney a better introduction to the case as opposed to getting blindsided by a grand jury indictment.
I say this because before a prelim begins, you get evidence disclosed to you. This will likely include police reports and lapel videos documenting the police’s investigation. Obviously, it is hugely beneficial to the defense to have access to these materials to prepare before the hearing.
At the preliminary hearing, you will be present and speak through your lawyer. The prosecutor has to bring witnesses, and they must testify to try to meet their burden of proof. Your lawyer can cross-examine those witnesses.
The involvement that you and your lawyer have in a prelim, along with the information that you learn and possess, puts you in a more educated and powerful position to determine a plan, as opposed to a grand jury hearing where there is usually less that you can do. For this reason, if you are charged with a felony, getting an attorney involved early can help steer your case in the right direction.