Rule 5.1. Preliminary Hearing

(a) IN GENERAL. If a defendant is charged with a felony, the court must conduct a

preliminary hearing unless:

(1) the defendant waives the hearing;

(2) the defendant is indicted;

(3) the government files an information under Rule 7(b) charging the defendant with a

felony; or

(4) the government files an information charging the defendant with a misdemeanor.

(b) SCHEDULING. Unless otherwise provided by statute, the court must hold the

preliminary hearing within a reasonable time, but no later than 14 days after the initial

appearance if the defendant is detained and no later than 21 days if the defendant is not

detained.

(c) EXTENDING THE TIME. With the defendant’s consent and upon a showing of good

cause—taking into account the public interest in the prompt disposition of criminal

cases—the court may extend the time limits in Rule 5.1(b) one or more times. If the

defendant does not consent, the court may extend the time limits only on a showing that

extraordinary circumstances exist and justice requires the delay.

(d) HEARING AND FINDING. At the preliminary hearing, the defendant must not be

called upon to plead. The finding of probable cause may be based on hearsay evidence

in whole or in part. The defendant may cross-examine adverse witnesses and may

introduce evidence but may not object to evidence on the ground that it was unlawfully

acquired. Motions to suppress must be made to the court as provided in Rules 12 and

47. The purpose of the preliminary hearing is not for discovery. If from the evidence it

appears that there is probable cause to believe that an offense has been committed and

that the defendant committed it, the court must promptly require the defendant to

appear for further proceedings.

at it was unlawfully

acquired. Motions to suppress must be made to the court as provided in Rules 12 and

47. The purpose of the preliminary hearing is not for discovery. If from the evidence it

appears that there is probable cause to believe that an offense has been committed and

that the defendant committed it, the court must promptly require the defendant to

appear for further proceedings.

(e) DISCHARGING THE DEFENDANT. If the court finds no probable cause to believe

an offense has been committed or the defendant committed it, the court must dismiss

the complaint and discharge the defendant. A discharge does not preclude the

government from later prosecuting the defendant for the same offense.

(f) PRODUCING A STATEMENT.

(1) In General. Rule 26.2(a)-(d) and (f) applies at any hearing under this rule, unless

the court for good cause rules otherwise in a particular case.

(2) Sanctions for Not Producing a Statement. If a party disobeys a Rule 26.2 order to

deliver a statement to the moving party, the court must not consider the testimony of a

witness whose statement is withheld.

COMMENT TO 2017 AMENDMENTS

In accordance with the 2009 amendments to the federal rule, the deadlines formerly

set at 10 or 20 days have been revised to 14 or 21 days—an amendment that reflects

the time-calculation changes made to Rule 45.

Section (f) is added to the rule. This section makes Rule 26.2 applicable to

preliminary hearings. It is substantially identical to section (h) of the federal rule.

This rule consists of provisions previously found in paragraph (d) of former Superior

Court Rule 5. This change conforms Rules 5 and 5.1 to their federal counterparts.

Paragraph (b) has been modified by the addition of the phrase “unless otherwise

provided by statute” in recognition of D.C. Code §§ 23-1322, -1323, and -1329 (2012

Repl.), which address the scheduling of preventive detention hearings.

Paragraph (d) retains the language of the former rule regarding the use of hearsay to

support probable cause

orms Rules 5 and 5.1 to their federal counterparts.

Paragraph (b) has been modified by the addition of the phrase “unless otherwise

provided by statute” in recognition of D.C. Code §§ 23-1322, -1323, and -1329 (2012

Repl.), which address the scheduling of preventive detention hearings.

Paragraph (d) retains the language of the former rule regarding the use of hearsay to

support probable cause. The language was removed from the federal rule as

unnecessary, in part because this principle is addressed in Federal Rule of Evidence

1101. Because this jurisdiction has not adopted the Federal Rules of Evidence, the

Superior Court rule did not follow this change.

Paragraph (g) of the federal rule (“Recording the Proceeding”) has been omitted

from this rule as unnecessary in light of Superior Court Rule 36-I, which requires the

recording of all court proceedings.

Paragraph (h) of the federal rule, which provides that Rule 26.2(a)-(d) and (f) applies

at preliminary hearings, is not included because that paragraph was not adopted during

prior reviews and amendments to the Superior Court rules.