The Preliminary Hearing--Better Alternatives or More of the Same
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BETTER ALTERNATIVES OR MORE OF THE SAME?
GARY L. ANDERSON*
In recent years we have witnessed a comprehensive and unprecedented
reappraisal of pre-trial criminal procedure in this country by all elements
of the legal fraternity. Much of the discussion and many of the changes
in criminal procedure are the result of, and are vitally affected by, recent
landmark decisions of the Supreme Court of the United States on the
subject of procedural Due Process.1 The comprehensive and complex nature
of the reappraisal is revealed in the broad proposal for legislative reform
being prepared by the American Law Institute in the form of a Model
Code of Pre-Arraignment Procedure2 and in the various recommendations
and studies of the American Bar Association Project on Minimum Standards
for Criminal Justice.3
In view of the many proposals being made for reform and the recent
Supreme Court decision in Coleman v. Alabama,4 a number of questions
concerning the usefulness and development of the preliminary hearing
should be considered. Statements have been made, most notably by prose-
cutors and persons interested in crime control, that the preliminary hear-
ing is a waste of time and effort.5 On the other hand, many defense attor-
*Assistant Professor of Law, University of Missouri; formerly Prosecuting
Attorney of Union County, Iowa; B.S., Iowa State University, 1960; J.D., University
of Iowa, 1962; LL.M., Harvard University, 1968.
1. E.g., Coleman v. Alabama, 90 S. Ct. 1999 (1970) (right to counsel at pre-
liminary hearing); United States v. Wade, 388 U.S. 218 (1967); Miranda v. Arizona,
384 U.S. 436 (1966); Gideon v. Wainwright, 372 U.S. 335 (1963); Mapp v. Ohio, 367
U.S. 643 (1961).
2. MODEL CODE OF PRE-ARRAiGNmENT PROCEDuRE (Tent. Draft No. 1, 1966,
No. 2, 1969, No. 3, 1970; Study Draft No. 1, 1968). None of these drafts deal with
the preliminary hearing.
3. E.g., STANDARDS RELATING TO DIscovERY AND PROcEDuRE BEFORE TRL
(Tent. Draft, 1969); STANDARDS RELATING TO PRETRIAL RELEASE (Approved Draft,
1968); STANDARDS RELATING TO PROVIDING DEFENSE SERVICES (Approved Draft,
1968).
4. 90 S. Ct. 1999 (1970), holding that the preliminary hearing is a critical
stage in Alabama's criminal process at which the accused is as much entitled
to the aid of counsel as at the trial itself. Since most states now make no pro-
vision for appointment of counsel to serve the accused at the preliminary hearing,
see note 19 infra, the Coleman decision is bound to cause a reappraisal of the
preliminary hearing in many states. Justice White, in a concurring opinion in
Coleman, speculates that requiring the appointment of counsel may result in
fewer preliminary hearings in jurisdictions where the prosecutor is free to avoid
them by taking a case directly to a grand jury and that [o]ur ruling may also
invite eliminating the preliminary hearing system entirely. Id. at 2008.
5. E.g., Hearings on the U. S. Commissioner System before the Subcomm.
on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary,
89th Cong., 1st Sess., pt. 2, at 126-28 (1965) (remarks of Warren Olney III, Di-
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The Preliminary Hearing--Better Alternatives or More of the Same
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