Rule 5.3 Proceedings at preliminary hearing.

Committee Comments

Ala.Code 1975 § 12-12-32(b)(2), vests exclusive jurisdiction to hold preliminary hearings in the district court. A defendant is permitted to call witnesses to present testimony and evidence as a matter of right, on a proper showing of relevance. Art. I, § 6, Alabama Constitution of 1901, requires “[t]hat in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either”; arguably the court could not constitutionally preclude the defendant from testifying at a preliminary hearing.

Rule 5.3(b) limits issues on suppression motions or objections only to the “competency” of the evidence, and not its admissibility at trial. The admissibility of trial evidence is left to the trial court. Rule 3.13(b) provides that a motion to suppress may be made at any time after indictment.

There is no constitutional requirement that hearsay evidence be excluded from a probable cause hearing. See Rule 5.1(a), Fed.R.Crim.P.; Coleman v. Burnett, 477 F.2d 1187, n. 89 (D.C.Cir.1973); Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (upholding a grand jury indictment based solely on hearsay testimony). See also Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884). Allowing hearsay at preliminary hearings is in keeping with the diminished role assigned such hearings.

The Advisory Committee notes that the Aguilar standard has been abandoned by the United States Supreme Court in favor of the “totality of the circumstances” approach. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) (reversing the Massachusetts Supreme Court for employing the Aguilar-Spinelli two-prong approach).