Rape hearing

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 issue are what shows 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 complaint. Your rape preliminary hearing is usually not the place for these type 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 on these charges, and physical injury sustained as a result. Questions about vaginal tearing, ruptured hymen, bruised cervix, are all subjects of an assault prosecution, and should be questioned at the preliminary hearing.

Prompt Complaint

Note, 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 a 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 where 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 cross should be, what is the day moth year of the first time you reported this and to whom?


DNA is not something that is important at a preliminary hearing. If the judge shuts down the lawyer on these questions, its 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, its not so important at a preliminary hearing. Also, I have seen rape preliminary hearings where the witness was no 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.

Brian J. Zeiger, Esquire, is an experienced and successful criminal defense and civil rights attorney. He is a seasoned trial lawyer with significant experience before juries and judges. Brian understands civil rights cases, including Taser, Wrongful Death, Excessive Force, Police Brutality, Police Misconduct, Malicious Prosecution, Monell Claims, Sexual Assault, Prisoner’s Rights, Time Credit, Medical Malpractice, and Medical Indifference.