Can charges be changed after a preliminary hearing?

A recent question sent to me asked about the procedure in an involuntary manslaughter case.  The question was:  Can the judge decide to upgrade the charges if the DA doesn’t pursue greater charges?  The question was based on the recent preliminary hearing of Dr. Conrad Murray in the Michael Jackson death case.

The prosecution files whatever charges they think they can prove based on the evidence. Once the defendant is arraigned and enters their not guilty plea, the next stage is the preliminary hearing.  The prosecution puts on the preliminary hearing and make a motion that the defendant be held for trial (“held to answer”) on whatever charges they think they proved up at the preliminary hearing. For example, if they initially charged manslaughter, but during the hearing, they think they proved murder, they can ask the judge to hold the defendant to answer on murder charges. It’s up to the judge to rule whether there was enough evidence on the charge requested. If the judge thinks there is, then they can hold the defendant on the higher requested charge. The judge’s ruling at the conclusion of a preliminary hearing is based on what was presented during that hearing.

They listen to the evidence, then based on a probable cause standard, make a determination if there is sufficient evidence to hold the defendant for trial. Their ruling is typically based on what charges are filed by the prosecution.

It works the other way, too. Let’s say the DA filed murder charges initially, then put on their evidence at the preliminary hearing, but the judge wasn’t convinced the evidence was sufficient. They could refuse to hold the defendant for trial on the charged offense, but could order them held on any lesser offense they think was proven.

Once the judge has ruled, there is a period of time (15 calendar days) between the preliminary hearing and a second arraignment. The DA then files whatever charges they think were proven at the preliminary hearing in a new charging document called an information. In most cases, they file charges that are the same as the judge’s ruling. The prosecution can file additional charges – either extra charges, higher charges or lower charges.

From there, the defense can challenge those new charges in a Penal Code section 995 motion. Let’s say, for example, that the judge ruled that there wasn’t enough evidence for murder, but there was enough for manslaughter. The prosecution disagrees and decides to file murder charges anyway. The defense would then file a 995 motion to challenge those charges. A different judge would then review the transcript of the preliminary hearing and rule on whether or not there was sufficient evidence to support the charges.

The defense can file a 995 motion in any criminal case to challenge the sufficiency of the evidence, even if the charges don’t change from the initial charges. The defense can always challenge whether or not the defendant was held to answer based on enough evidence.

To answer the initial question though – can a judge upgrade charges during the trial? No. The decision of what charges to file is up to the DA. From there, the checks and balances of the preliminary hearing and 995 motions can challenge the charges, even before it gets to trial.

Once a case gets to trial, the charges the defendant will face have long since been decided. Of course, at trial, there are lesser included charges to those charged, giving the jury a whole host of options when it comes to deciding the case.

See also:

What are the stages of a felony case? and What are the stages of a criminal trial?

Joe Dane, Orange County Defense Attorney

info@joedane.com

(714) 532-3600

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