Tuesday, October 18, 2016

What is a Preliminary Hearing? And what do I need to know about it?

Written by Tana M. Fye

If a person is charged with a felony, one of the very first hearings that will be scheduled is called a preliminary hearing. This type of hearing is not scheduled in cases where a person is only charged with misdemeanors, so people are often confused about what exactly happens at the preliminary hearing.  

A preliminary hearing is a hearing where the State (through the County Attorney or the Attorney General) has to show (1) that there is probable cause to believe that what was charged actually happened, and (2) that the person charged is the person who committed that act. Probable cause is the standard. And probable cause is a much lower standard than reasonable doubt, the standard used at trial. Consequently, it is much easier for the State to show probable cause and win at the preliminary hearing than it is to prove the case beyond a reasonable doubt and win at the trial.

A defendant (the person charged with the crime) has two options as it relates to the preliminary hearing. One option is to have the preliminary hearing, where the State would try to prove up the two items discussed above. The second option that a defendant has is to waive his/her right to preliminary hearing. This waiver can happen either in the courtroom, or using a document called a Waiver of Right to Preliminary Hearing. Both essentially accomplish the same thing, giving up the ability to challenge probable cause. 

There are several reasons that a person may want to waive his/her right to a preliminary hearing. They include (but aren't limited to): the ability to screen for drug court, to curry favor with the prosecutor to try to get a more favorable plea offer, to obtain discovery or reports more quickly, because the judge has already found probable cause, because a better strategy may be to file suppression motions than to waste time on a preliminary hearing. 

There are several reasons that a person may want to have his/her preliminary hearing. They may include: putting witnesses or a law enforcement officer on the record, because the Probable Cause Affidavit left out key information that may show that there is not probable cause.

In any event, if you are charged with a felony, you should seek the advice of a competent criminal defense attorney who can evaluate your particular case and circumstances and arrive at the best strategy for you. No two cases are the same, and each requires individual attention and discussion with a criminal defense attorney.

Tuesday, October 7, 2014

Rural Areas Need More Lawyers

I live and work primarily in rural Nebraska.  And I hear about and see first hand that there is a shortage of lawyers able to handle the caseload that exists.  The American Bar Association recently wrote a fantastic article about this issue, and how different states are seeking to address it.  Really a lawyer shortage equates to a justice shortage, because of the long distances that people have to travel to find attorneys and the cost associated with doing so.  I applaud the work of the State Bars that are trying to find solutions, and hope that this will continue.

Thursday, July 24, 2014

Lawyers Need to Be GALs for Juveniles

I applaud G. Michael Fenner's position taken on lawyers v. non-lawyers acting as Guardians ad Litem for children in juvenile cases.  I believe that it is absolutely necessary for children to be represented by attorneys in these cases, as to take away this right to counsel for children would leave them the only parties unrepresented in these matters.  Parents have attorneys, the Department of Health and Human Services has attorneys, and the State has County Attorneys.

The right to counsel for children involved in juvenile proceedings should be a no-brainer.  And in fact, many states are moving toward a model with lawyer GALs, rather than away from it.  I would hate to see Nebraska moving in the wrong direction by taking away children's right to counsel in these matters.

Thank you to G. Michael Fenner for taking this position, and summarizing it so succinctly.

Wednesday, July 23, 2014

Prosecutors Reading Inmate/Lawyer E-mails

I just finished reading this article in the New York Times.  It was quite troubling.  It is a hallmark of our law that attorney-client communications are privileged, meaning that they are not subject to review by law enforcement, county attorneys, judges, or others.  I cannot fathom why there would be a distinction between written correspondence sent through the mail and written correspondence sent via the internet.

Certainly I understand (and regularly advise my incarcerated clients) that their communications, whether they be written, telephonic, or otherwise, with others (i.e. not their attorney) are subject to review by the jail, law enforcement, and prosecutors.  In fact, I have seen situations where those very communications lead to new charges for witness tampering, as well as being used as proof for the underlying offense.  And this, from society's prospective, makes sense to ensure that witnesses aren't being tampered with, criminal activities are not ongoing, public safety, etc.

But I do have a problem with inmates being lead to believe that their conversations with their attorneys are private/confidential/privileged, and then those conversations and statements being used against them.  This is just plain wrong, and I believe contrary to our system of law and justice.

Moreover, as the Court recently recognized in the Riley case, how we communicate with each other and interact with our world is changing.  When these types of systems are put in place to facilitate regular and easy contact between incarcerated clients and their attorneys (which I applaud), then they need to be protected just as more antiquated systems for contact (such as the mails).  Otherwise, these systems are entirely useless to attorneys as a means to communicate with incarcerated clients.

Thursday, May 22, 2014

Monday, August 19, 2013

Holdrege Has It!

Holdrege, Nebraska created this video, and yours truly was tapped to be a part of it.  Please feel free to check it out if you're interested!

Friday, January 4, 2013


For only the second time, the Supreme Court of the United States will hear a case involving the Indian Child Welfare Act (ICWA).  This Reuters article describes the situation as a "human tragedy," which pretty much can describe any case on appeal involving ICWA, as the failure to abide by ICWA's mandates can essentially 'undo' an adoption.

Whatever the result, it will be wonderful for attorneys involved in these types of cases to have a little more guidance from the Supreme Court.