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In the state of Illinois, during a preliminary hearing on a criminal charge, can a judge refuse to let the defendant and his lawyer cross examine the state's sole witness?

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  • Are you referring to a preliminary hearing, used to determine if there is probable cause to hold someone for trial? Commented Jul 27, 2021 at 20:44
  • Yes. That's the only preliminary hearing in criminal law in Illinois. I don't mean that in a ride way, just explaining.
    – user197001
    Commented Jul 27, 2021 at 21:49
  • Thanks. I just wanted to be clear. it is often better here to spell things out as fully as possible to avoid misunderstandings, even at the cost of some redundancy. Commented Jul 27, 2021 at 21:58

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The Defendant has the right of cross-examination and the right to Counsel at an Illinois Preliminary Hearing

The second paragraph of article I, section 7, of the 1971 Illinois constitution provides:

No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause.

According to 725 ILCS 5/109-3 (b):

The judge ... may, or on the demand of the prosecuting attorney shall, cause the witnesses for the State to be examined.

Subsection (e) provifes that:

During preliminary hearing or examination the defendant may move for an order of suppression of evidence pursuant to Section 114-11 or 114-12 of this Act or for other reasons, and may move for dismissal of the charge pursuant to Section 114-1 of this Act or for other reasons.

The Policies and procedures of the Illinois criminal justice system says, on page 15:

After a felony complaint is filed, the prosecutor may elect to proceed by a preliminary hearing instead of presenting the case to the grand jury. At the hearing, a judge determines if there is probable cause to believe that the defendant has committed the offenses with which he or she has been charged [725 ILCS 5/109 et seq.]. The defendant may waive his or her right to a preliminary hearing [725 ILCS 5/109-3]. Upon a finding of probable cause the prosecutor will file an information which takes the place of an indictment as the formal charge which requires the individual to stand trial.

None of the above specifically say that cross-examination must be permitted, indeed they do not mention it at all.

In "The Determination of Probable Cause in Illinois - Grand Jury or Preliminary Hearing" by John C. Robinson Jr. Published in the Loyola University Chicago Law Journal (vol 7 Issue 4. Fall 1976) the author says:

In contrast to the grand jury session, the preliminary hearing in Illinois is an open proceeding where the accused, accompanied by counsel, may cross-examine prosecution witnesses and introduce evidence on his own behalf on the issue of probable cause. ... The Bill of Rights Committee of the 1970 Constitutional Convention characterized the preliminary hearing as:

a judicial proceeding in which the defendant has an opportunity to confront and cross-examine the witnesses who appear to give evidence against him and an opportunity to give evidence in his own behalf. (VI RECORD OF PROCEEDINGS SIXTH ILLINOIS CONSTITUTIONAL CONVENTION 75.)

Even though there is no federal constitutional right to a preliminary hearing, the United States Supreme Court held in Coleman v. Alabama (399 U.S. 1 (1970)) that a preliminary hearing under Alabama law, although not a required step, is a "critical stage" to which the right to counsel attaches. The Illinois Supreme Court in turn held in People v. Adams (46 Ill. 2d 200, 263 N.E.2d 490 (1970), aff'd, 405 U.S. 278 (1972)) that the preliminary hearing in Illinois under section 109-3 is substantially similar to that of Alabama and, therefore, is a "critical stage" to which the right to counsel attaches.

... As pointed out in Coleman, a defendant can greatly benefit from the assistance of counsel at a preliminary hearing. Counsel may, by cross-examination, expose a fatal weakness in the state's case leading to a finding of no probable cause, fashion an impeachment tool for use at trial, preserve favorable testimony, and discover the state's case to aid in the preparation of a proper defense

This page from an illinois lawyer says:

These [preliminary] hearings are extremely important ... as it is the first opportunity your attorney has to confront the officer in court and elicit testimony regarding the arrest. Quite often the testimony elicited from the officer can be used at a later date in a Motion to Suppress. ...

... After the State’s Attorney, or prosecutor, finishes his portion of the preliminary hearing, the attorney for the defendant will have an opportunity to cross-examine the prosecution’s witnesses. The judge will then make a determination as to whether the prosecution has met its burden

This page from a different law firm says:

A benefit of the preliminary hearing for the Defendant is that the Defendant’s attorney can ask questions of the prosecution’s witnesses at the preliminary hearing, thereby locking them into a story that they cannot change later. Sometimes it is possible to ask questions at a preliminary hearing that the Defendant’s attorney would not be able to ask until Trial, and by learning that information early the case can be improved.

This page from a third law firm says:

The evidence presented at the preliminary hearing stage is normally very brief and consists of the most important facts that support the offense as charged. A good prosecutor will limit the evidence presented to the bare minimum required – just enough to establish probable cause. The reason for this is primarily because the Defense Attorney then has an opportunity to cross-examine the witness(es) called by the State in attempt to demonstrate weakness in the State’s case.

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