A recent case [People v. Graff (2009) __ Cal.App.4th__ ] reversed the convictions of a man accused of multiple counts of lewd acts with a child (Penal Code section 288 – also known as child molestation). The court found that the prosecution argued for a conviction based on conduct that was not proven at the preliminary hearing. When the prosecution files charges, they must specify what conduct is the basis for the charge and when the crime is alleged to have occurred. Most crimes are alleged to have occurred on a specific date. In some cases – child molestation being the most common example – the prosecution elects to charge that the crime occurred during a time frame. That time frame could be anywhere from a few days to over the period of years.
Just filing the charges isn’t enough to get to trial on a felony. The prosecution must prove the conduct to a judge at a preliminary hearing. They can only proceed to trial on charges they can prove at that preliminary hearing. That includes proving that any acts happened in the charged time period.
By making that specific time frame the basis for the charges, the prosecution must then prove at trial beyond a reasonable doubt that the acts that constitute the crime actually occurred in the charged time period. In the Graff case, there were allegations of other improper touching outside the time period the prosecution charged. In closing argument, the prosecutor argued that conduct not proven at the preliminary hearing could be the basis for conviction – an improper argument that led to the reversal of the case.
This case illustrates why a preliminary hearing is an important stage of any prosecution. Challenging the evidence at the preliminary hearing is one of the first steps in your defense. Your attorney can possibly reduce the charges against you or limit how the evidence can be used at trial.
Additional posts about sexual offenses can be found here.