The defense must make numerous decisions throughout the course of a criminal case. Some decisions—such as whether to move to dismiss a complaint, to challenge an arrest, to challenge a search warrant, or to invoke the right to a preliminary hearing—hinge on the concept of probable cause. Such decisions require a lawyer’s training and experience and are therefore traditionally allocated to defense counsel, not the defendant. However, there is one exception: the decision to have or waive the preliminary hearing, or “prelim,” is ordinarily left to the defendant. Allocating to the defendant the decision to have or waive the prelim creates numerous problems. This Article therefore argues that such a decision should, like other probable cause-related decisions, normally be allocated to the defense lawyer. To support this claim, this Article mines case law for the criteria used to allocate decisions in other contexts and creates a conceptual framework for the allocation of decision-making authority. It then applies this framework to the decision to have or waive the prelim and demonstrates that, with one exception, this decision should rest with defense counsel rather than the defendant.
AUTHOR
Criminal Defense Lawyer, Cicchini Law Office LLC, Kenosha, Wisconsin. J.D., summa cum laude, Marquette University Law School (1999); C.P.A., University of Illinois Board of Examiners (1997); M.B.A., Marquette University Graduate School (1994); B.S., University of Wisconsin—Parkside (1990). Visit www.CicchiniLaw.com for more information.
Copyright 2024 by Michael D. Cicchini
Cite as: Michael D. Cicchini, Defense Lawyer Decision-Making and the Preliminary Hearing, 119 Nw. U. L. Rev Online. 165 (2024), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1345&context=nulr_online.