At my rape preliminary hearing, the judge did not allow my attorney to ask any questions regarding the physical injury, if DNA was recovered, or the prompt complaint. Why was my lawyer not allowed to ask questions on these topics? These issues are what show my innocence. Any judge who heard these answers would know my case is nonsense and have thrown it out at the preliminary hearing. Please explain.
Rape Preliminary Hearing
At a rape preliminary hearing, the stand is simply that the prosecutor has to present evidence, that if true, would be enough to sustain a conviction. After the judge hears that testimony, the judge decides what if any charges are made out for trial. In a rape case, if the complaint gets on the stands and says her vagina was penetrated by the defendant’s penis, and she did not consent, that is enough to go to trial on rape.
At trial, your attorney can ask questions about physical injuries, DNA, and prompt complaints. Your rape preliminary hearing is usually not the place for these types of questions.
Physical Injuries
However, a skilled trial advocate may be able to get in some great questions about the physical injuries at a rape preliminary hearing. In most rape cases, the defendant is charged with simple assault or indecent assault. If that is the case, your lawyer should be allowed to cross-examine these charges, and the physical injury sustained as a result. Questions about vaginal tearing, ruptured hymen, and bruised cervix, are all subjects of an assault prosecution and should be questioned at the preliminary hearing.
Prompt Complaint
Note, that even the most skilled trial advocates are usually precluded from asking questions about the prompt complaint at a preliminary hearing. Questions about how and when rape was first reported are totally not relevant to whether there was forcible penetration. The only time I have seen judges allow this type of questioning at a preliminary is when a judge tells the attorney she can have a certain amount of questions and just that amount to ask whatever she’d like. For example, the judge says, “Counsel you can have ten questions and ten questions only today.” If thats the case, the first question on the cross should be, what is the day month year of the first time you reported this, and to whom?
DNA
DNA is not something that is important at a preliminary hearing. If the judge shuts down the lawyer on these questions, it’s not such a big deal because DNA was either collected or not. You can’t erase it. Physical evidence was collected and analyzed, so the prosecutor must give you all the information discovery. Accordingly, it’s not so important at a preliminary hearing. Also, I have seen rape preliminary hearings where the witness was not so good on the stand and said very little. After that, the prosecutor intentionally puts in DNA evidence at the rape preliminary hearing to make sure they have enough to go to trial. If this happens, you are allowed to question on it because the prosecutor opened the door; this is also known as challenging evidence.
