Understanding Preliminary Hearings: Your Guide to Calling a Witness
Let’s talk about preliminary hearings, specifically if you’re wanting to call a witness during your preliminary hearing. Hi, my name is Carl Birkhead. I’m a Tulsa criminal attorney with Wirth Law Office in Tulsa, Oklahoma. I’ve been practicing family and criminal law for almost eight years now, and I want to help you make law easy by talking a little bit about what you can do to prep and present your defense at prelim.
The Tulsa County Approach
Okay, so in Tulsa County, things go a little bit differently than in other counties that I’ve practiced in before. I’ve been in counties where if you’re at prelim, the state puts on their witnesses, they rest their case, and then the defense is given an opportunity to put on any rebuttal witnesses that they might have.
The reason for this is that when you’re at a preliminary hearing, the state has to prove that it’s 51% more likely than not that a crime was committed and that it was committed by you. So the burden the state has at that point is just a preponderance of the evidence. If we’re weighing the scales, it’s just slightly more that way. But they still have to establish probable cause.
Challenges with Presenting a Defense
Now, here in Tulsa County, that gets a little tricky because instead of being able to put on your witnesses for your defense, the courts handle it a little bit differently. So I had this happen to me just recently. I had a case that I was at prelim on, and we wanted to call the alleged victim in that case to take the stand and ask her questions about what she was saying happened.
The state had already provided a recording of her making the disclosures and saying what happened to her a few months ago when everything allegedly happened. But in the time in between, it sounded like the story had changed. Maybe she’s not telling the same story. Maybe she’s not singing the same tune. So we wanted the court to hear from her directly.
The Role of Proffer of Evidence
Here’s what happened. The court didn’t let us put her on. The way it shook out, and it kind of also had to do with the fact that the video had been provided to us a little bit late. So the court didn’t let us outright put her on. But what the court did do was let us put on what’s called a proffer of evidence or an offer of proof.
What that means is we didn’t get to put the victim on the stand. But what we did get to do was say, Your Honor, we’re asking to be able to call this witness to the stand to be able to address some of the things that were said in this video, since we can’t cross-examine a video, especially considering that we don’t believe that the witness’s story today will match up what was said in that video.
Unfortunately, in this situation, the court didn’t let us put her on, even though we made the offer of proof. The court did not find it compelling in this particular instance. But the important thing for that particular case is that we were still able to make the offer on the record. We made a record of what the witness was going to say, so that’s an issue that we can still bring up on appeal.
Schedule Your Low-Cost Initial Strategy Session Today
If you’re facing a felony charge and you’re looking at your preliminary hearing coming up and you’re not sure what to do, definitely give us a call. I want to sit down with you. I want to talk about what the strengths and weaknesses are in your case. I want to see what witnesses you might be able to have testify on your behalf.
Because even if the court won’t let them take the stand, we can at least make the offer of proof of the record and preserve that issue if and when it has to be appealed. My name is Carl Birkhead. I’m a Tulsa felony attorney with Wirth Law Office, and I want to help you make law easy. Call us today at 918-879-1681 to schedule your low-cost initial strategy session.
