If you have been arrested and a criminal complaint has been filed then you are entitled to a Probable Cause Hearing. At this hearing, a U.S. federal magistrate judge will decide whether or not there is probable cause to demonstrate that you should be charged with a federal offense. At this hearing your defense lawyer will have the opportunity to cross examine the government witnesses (usually federal agents involved in the arrest) or to call your own witnesses to rebut the government’s case. Here are some important tips to consider when discussing strategy with your lawyer:

1. Consider how aggressive the cross examination should be. Ever hear the phrase “too much of a good thing is taxing?” For criminal defense attorneys, cross examination is a great thing. It is the best way to poke holes in the government’s case and raise doubt in the mind of the trier of fact. However, it also carries with it some disadvantages at a Probable Cause Hearing, where the government has a low burden of proof. For example, overly aggressive cross examination could alert the prosecutor to weaknesses in their case or weaknesses in a particular witness’ testimony. Furthermore, it allows the government to preserve damaging testimony at trial if a witness is later unavailable to testify. If it is almost certain that the government will be able to meet its burden of proof at the Probable Cause Hearing, then from a strategic point of view it might make sense to save some of the more aggressive cross examination for trial.

2. Consider NOT calling any witnesses. You have a right to call witnesses at your Probable Cause hearing. The question is: should you do so? Make a determination as to the risk of the prosecutor’s cross-examination of the witness against any benefit to be gained. Keep in mind that calling witnesses will allow the prosecutor to identify key witnesses to your case. In addition, witness testimony also provides the prosecutor insight into your defenses. Finally, and probably most harmful, calling witnesses at a Probable Cause hearing preserves their testimony for later impeachment at trial. Keep in mind that even in cases where probable cause is not found and the complaint is dismissed, the government may still present the case to a grand jury.

A federal criminal defense lawyer should be aggressive, but they should also be smart. The greatest weapon available to a defense lawyer is the element of surprise. As such, they should not fight losing battles. The government’s burden of proof is incredibly low at a Probable Cause Hearing and as such there is a strong likelihood that a U.S. magistrate judge will find probable cause to exist. Although in my practice I am always looking to fight the government on every issue, in certain scenarios it makes sense to use a bit of strategy. Being overly aggressive early on can come back to haunt you. Saving some of that aggression for trial is sometimes the best path to follow.

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.

Bookmark and Share