Q: Defendant surprised by undisclosed witness at preliminary hearing in criminal case.

A: When an undisclosed witness is called by the district attorney at a preliminary hearing in California and the case proceeds to trial, a defendant has several legal options to address this situation. First, they can argue that the prosecution violated their due process rights by failing to disclose the witness beforehand, as required under California law and constitutional protections (People v. Hull, 31 Cal. App. 5th 1003). Second, the defendant may challenge the admissibility of the witness’s testimony at trial if the prosecution did not provide adequate notice, per California Penal Code § 1054.1, which mandates disclosure of intended witnesses. Third, if the witness’s preliminary hearing testimony is used at trial due to their unavailability, the defendant can contest this by asserting they lacked a similar motive or adequate opportunity for effective cross-examination, as outlined in California Evidence Code § 1291 (People v. Smith, 30 Cal. 4th 581). Finally, they might file a motion to disqualify the district attorney under California Penal Code § 1424 if the failure to disclose created a conflict of interest jeopardizing a fair trial. As each case is unique, it is crucial to promptly seek aid from a qualified law firm that can thoroughly evaluate your specific circumstances.

A: You have some legitimate concerns about what happened at your preliminary hearing. When the prosecution calls a surprise witness who wasn't included in discovery, this could potentially be a discovery violation. Your public defender should have objected to this witness testimony during the hearing and requested time to prepare a response or cross-examination.

Moving forward, you should have a serious conversation with your public defender about what happened. Ask why they didn't object to the surprise witness and inquire about filing a motion to dismiss or suppress that witness's testimony based on the discovery violation. If you feel your public defender isn't adequately representing you, you have the right to request a new public defender by filing a Marsden motion with the court, explaining why your current representation is inadequate.

Remember that preliminary hearings have a lower burden of proof than trials, so the judge's decision to move forward doesn't mean you'll be convicted at trial. Make sure your defense team thoroughly investigates this witness before trial, prepares effective cross-examination, and considers bringing your own witnesses to counter their testimony. Document everything about this situation, as discovery violations can sometimes become grounds for appeal if necessary later on.