The Chinese strategist Sun Tzu has written on the five factors from which victory can be obtained. One principle is "One who, fully prepared, awaits the unprepared will be victorious."
One of the best tools to achieve that teaching of being prepared is the preliminary hearing.
Everyday I see criminal lawyers in various counties waving a preliminary hearing for no obvious reason. I can see waiving a hearing for a bond reduction or some sort of concession, but to waive it costs a lawyer preparation. One question to ask a lawyer when you are interviewing is "Will you do a preliminary hearing in my case if we cannot settle it in General Sessions Court?" I frequently see the hearings waived in Williamson and Sumner County General Sessions Court.
Here are my reasons for never waiving the hearing unless you get some quid pro quo.
- It is you chance to obtain information about the case to prepare for trial.
- It is your first chance at early discovery other than just reading the arrest warrant.
- You can test your legal defenses.
- It is the earliest forum to test factual defenses. It is the first opportunity to lock police officers into their testimony.
- A new rule of evidence now makes this testimony substantive evidence if they change their testimony.
- It is the forum where pretrial motions are developed such as a motion to suppress the search warrant, traffic stop, or statements.
Rule 5.1 of the Tennessee Rules of Criminal Procedure gives this check and balance on the police officers allegations. As the old maxim states "Use it or lose it."