Rule 5.1 Preliminary Examination

Rule Text

Amendment history: Amended July 22, 1993, effective October 19, 1993; amended June 30, 2000, effective July 1, 2000; amended December 2, 2002, effective January 6, 2003; amended August 21, 2018, effective January 1, 2019. Compare. — Rule 5.1, Fed. Rules Cr. Proc. Fundamental part of preliminary hearing, as well as trial, is the presence of the defendant. Campbell v. State, 589 P.2d 358, 1979 Wyo. LEXIS 344 (Wyo. 1979). Purpose of preliminary hearing. — The right of the accused to subpoena and call witnesses must be viewed in light of the true constitutional purpose of the preliminary hearing, which is to obtain a determination by a neutral, detached factfinder that there is probable cause to believe a crime has been committed and that the defendant committed it. Madrid v. State, 910 P.2d 1340, 1996 Wyo. LEXIS 17 (Wyo. 1996). Only purpose of a preliminary hearing is to determine whether there is a sound basis for continuing to hold an accused in custody: To make sure that he is not being held on some capricious or nebulous charge. Wilson v. State, 655 P.2d 1246, 1982 Wyo. LEXIS 407 (Wyo. 1982). The purpose of a preliminary hearing is to establish the existence of probable cause to hold the accused for prosecution. Haight v. State, 654 P.2d 1232, 1982 Wyo. LEXIS 416 (Wyo. 1982). There is no common-law right. — In Wyoming, an accused is not entitled to a preliminary hearing unless one is authorized by statute. No common-law right to a preliminary hearing exists. Montez v. State, 670 P.2d 694, 1983 Wyo. LEXIS 371 (Wyo. 1983). And defendant is not entitled to hearing on habitual criminal allegations. — As the habitual criminal statute is a vehicle for enhancing a sentence upon a conviction for crime and is not a separate crime, a defendant is not entitled to a preliminary hearing on habitual criminal allegations. Montez v. State, 670 P.2d 694, 1983 Wyo. LEXIS 371 (Wyo. 1983). County court not to determine, at preliminary hearing, whether counts in complaint merge. — It was not within the county court’s authority at a preliminary hearing to dismiss a count of a complaint on the ground that it merged with another count. The sole purpose of the preliminary hearing was to determine whether there was probable cause for detaining the accused pending further proceedings. State v. Carter, 714 P.2d 1217, 1986 Wyo. LEXIS 487 (Wyo. 1986). Probable cause exists if the proof is sufficient to cause a person of ordinary caution or prudence to conscientiously entertain a reasonable belief that a public offense has been committed in which the accused participated. Wilson v. State, 655 P.2d 1246, 1982 Wyo. LEXIS 407 (Wyo. 1982). Jurisdiction lacking where no probable cause found. — Because the judicial officer found no probable cause existed for the charged offense or a lesser included offense, and the state did not attempt to amend the charge, and even though no objection was lodged by the defendant, the judicial officer had no authority to transfer the two reduced charges to the district court and the district court lacked jurisdiction to consider the reduced charges. Jackson v. State, 891 P.2d 70, 1995 Wyo. LEXIS 36 (Wyo. 1995). Hearsay is admissible in grand jury proceedings without limitation, and the determination of probable cause may rest exclusively on such evidence. Hennigan v. State, 746 P.2d 360, 1987 Wyo. LEXIS 536 (Wyo. 1987). Defendant’s right to subpoena and call witnesses not absolute. — Subdivision (b) provides a defendant the right to subpoena and call witnesses during his preliminary hearing. This right, however, is not absolute. Garcia v. State, 667 P.2d 1148, 1983 Wyo. LEXIS 347 (Wyo. 1983); Madrid v. State, 910 P.2d 1340, 1996 Wyo. LEXIS 17 (Wyo. 1996). Not for purposes of discovery. — Although some discovery may result as a byproduct of a preliminary hearing, it is not a purpose of the hearing. Haight v. State, 654 P.2d 1232, 1982 Wyo. LEXIS 416 (Wyo. 1982). Introduction of testimony from defendant witness is within court’s discretion. — Discretion is left to the court to determine whether or not the purpose for which a defendant seeks to introduce testimony from a witness whom he has subpoenaed fits within the realm of discovery rather than the determination of probable cause, and it is incumbent upon counsel to explain the relevance to the issue of probable cause of the testimony he seeks to introduce at the preliminary hearing. Almada v. State, 994 P.2d 299, 1999 Wyo. LEXIS 192 (Wyo. 1999). Discovery is not the purpose of the hearing; thus, discretion is left to the court to determine whether or not the purpose for which a defendant seeks to introduce testimony from a witness whom defendant subpoenaed fits within the realm of discovery rather than the determination of probable cause. Madrid v. State, 910 P.2d 1340, 1996 Wyo. LEXIS 17 (Wyo. 1996). Reasons for defendant’s attorney to be present at preliminary hearing. — See Haight v. State, 654 P.2d 1232, 1982 Wyo. LEXIS 416 (Wyo. 1982). Timing of objections to preliminary hearing. — The time to object to defects in the preliminary hearing is before arraignment and trial, and unless some reason is shown why counsel could have discovered and challenged the defect before trial, it will generally be assumed that any objections to the preliminary proceedings were considered and waived, and no post-conviction remedies will be available. Thus, defendant waived his objection to any defects in the preliminary hearing when he permitted the arraignment and trial to proceed without objection. Trujillo v. State, 880 P.2d 575, 1994 Wyo. LEXIS 92 (Wyo. 1994). Denial of defendant’s motion to remand for a second preliminary hearing because a complete recording of the original hearing was not available did not violate paragraph (d) of this rule where there was five-month delay between defendant’s discovery of the incomplete recording and his motion for remand. Sidwell v. State, 964 P.2d 416, 1998 Wyo. LEXIS 123 (Wyo. 1998). Delay warrants inquiry into speedy trial. — Where the record shows that there was an interval of 95 days from the date of defendant’s arrest and the date of the preliminary hearing, during which period of time he was in jail, the delay was sufficient to justify further inquiry into whether or not he was given a speedy trial. Phillips v. State, 597 P.2d 456, 1979 Wyo. LEXIS 497 (Wyo. 1979). Counsel must explain relevance of testimony sought to be introduced. — It is incumbent upon counsel to explain the relevance to the issue of probable cause of the testimony counsel seeks to introduce at the preliminary hearing, pursuant to a sufficient offer of proof. Madrid v. State, 910 P.2d 1340, 1996 Wyo. LEXIS 17 (Wyo. 1996). Cross-examination limited to scope of direct examination. — Although the Wyoming Rules of Evidence are not applicable to a preliminary examination in criminal cases (Rule 1101(b)(3), W.R.E.), cross-examination is properly to be limited at a preliminary hearing to the scope of direct examination. Weddle v. State, 621 P.2d 231, 1980 Wyo. LEXIS 327 (Wyo. 1980). Where the defendant’s pretrial motion is directed at a claimed improper restriction of cross-examination at the preliminary hearing, and the restriction is the refusal of the justice conducting the hearing to allow a question to the victim concerning sexual intercourse had by her previous to the sexual assault alleged in the complaint, the motion is properly rejected where the question is beyond the scope of direct examination. Weddle v. State, 621 P.2d 231, 1980 Wyo. LEXIS 327 (Wyo. 1980). Inference of location proper. — Where the record of the preliminary hearing is peppered with references to well-known landmarks and streets and the only thing lacking is the full-blown statement that the events took place in a certain county, there was sufficient evidence from which the justice of the peace could reasonably infer that the alleged crime took place in that county. Snyder v. State, 599 P.2d 1338, 1979 Wyo. LEXIS 448 (Wyo. 1979). When continuance allowed for absence of witness. — Where a party seeks a continuance in a preliminary hearing, due to the absence of a witness, there must be a showing that the witness’ testimony would be material were he allowed to testify, and that the moving party has used due diligence to procure the attendance of the witness. Haight v. State, 654 P.2d 1232, 1982 Wyo. LEXIS 416 (Wyo. 1982). Granting continuance within court’s discretion. — The matter of granting a continuance is within the discretion of the court. Haight v. State, 654 P.2d 1232, 1982 Wyo. LEXIS 416 (Wyo. 1982). Refiling of charge not barred after prior dismissal. — Neither the doctrine of res judicata nor the doctrine of collateral estoppel barred the refiling of an attempted kidnapping charge and subsequent preliminary hearing after the charge was dismissed under Wyo. R. Crim. P. 5.1(c) following a preliminary hearing where a lack of probable cause was found. Rathbun v. State, 2011 WY 116, 257 P.3d 29, 2011 Wyo. LEXIS 120 (Wyo. 2011).