What? No Live-Stream of the Preliminary Hearings?
Why Did DA Rob Wood Ask That The Preliminary Hearings not be Streamed?
July 21, 2020
HAPPY END OF THE WORLD EVE! On the outside chance that Chad and Lori are right, it's been great getting to know all of you.
Since they're probably not right, and the world isn't ending tomorrow, you may want to take advantage of the new archive function on our website http://thelorivallowstory.com
But you want to see everything? Me too! But Prosecutor Rob Wood, who has been appointed special prosecutor on the Vallow/Daybell cases, asked that Lori and Chad’s preliminary hearings on the Fremont County charges not be live-streamed. He asked because he said it could make finding an impartial jury difficult. He’s right, and while it makes those of us who are invested in the case bristle, it’s actually a good move. Wood wants to assure that he does everything to protect the process so that neither Chad nor Lori have the basis for appeal. Wood has an obligation not to put on evidence aimed at inflaming or offending a jury’s sensibilities. Pretrial publicity is going to continue to be a problem in this case. Wood is not asking to close the hearing or limit public access; he is only asking that the hearing not be live-streamed. Most hearings are not live-streamed. The reason the Vallow/Daybell hearings have been broadcast is that COVID-19 restrictions kept court spectators, including the media, out of the courtroom.
Some things to think about:
This is a preliminary hearing on the charges of conspiring to conceal or destroy evidence.
A preliminary hearing is just the next step in the charging process. A defendant is charged with a document called a DA’s Information. If the potential charge is a felony, there is a further step in the charging process. That step is either a grand jury or a preliminary hearing. Jurisdictions vary on whether their process favors preliminary hearings or grand juries. Either way, the purpose of the hearing is to determine first, if an offense has been committed, and second, whether there is probable cause to believe the defendant committed the offense. The term probable cause has a specific legal definition: The existence of circumstances that would lead a reasonable and prudent person to believe in the guilt of a person. It’s a much lower standard than proof beyond a reasonable doubt. If beyond a reasonable doubt is 99%, probable cause is 51%. The only question is whether the judge believes it’s more likely than not that this defendant committed this crime.
Idaho Criminal Rule 5.1. Preliminary Hearing; Probable Cause Finding; Discharge or Commitment of Defendant; Procedure
(a) Preliminary Hearing. Unless indicted by a grand jury, a defendant charged in a complaint with any felony is entitled to a preliminary hearing. If the defendant waives the preliminary hearing, the magistrate must immediately file a written order in the district court requiring the defendant to answer. If a waiver of preliminary hearing form is used, the waiver form must be the Supreme Court waiver of preliminary hearing form found in Appendix A of these rules. If the defendant does not waive the preliminary hearing, the magistrate must schedule a preliminary hearing within a reasonable time, but in any event not later than 14 days following the defendant’s initial appearance if the defendant is in custody and no later than 21 days after the initial appearance if the defendant is not in custody. Time limits in this subsection may be extended with the consent of the defendant and on showing of good cause, taking into account the public interest and prompt disposition of criminal cases. In the absence of consent by the defendant, time limits may be extended only on a showing that extraordinary circumstances exist. Extraordinary circumstances include disqualification of the magistrate by the defendant pursuant to Rule 25.
(b) Probable Cause Finding. If the magistrate finds that a public offense has been committed and that there is probable or sufficient cause to believe that the defendant committed the offense, the magistrate must immediately require the defendant to answer in the district court. The finding of probable cause must be based on substantial evidence on every material element of the offense charged. Hearsay in the form of testimony or affidavits, including written certifications or declarations under penalty of perjury, may be admitted to show the following:
(1) the existence or nonexistence of business or medical facts and records,
(2) judgments and convictions of courts,
(3) ownership of real or personal property, and
(4) reports of scientific examinations of evidence by state or federal agencies or officials or by state-certified laboratories, provided the magistrate determines the source of said evidence to be credible. Nothing in this rule prevents the admission of evidence under any recognized exception to the hearsay rule of evidence. The defendant is entitled to cross-examine witnesses produced against the defendant at the hearing and may introduce evidence in the defendant’s own behalf. Motions to suppress must be made in a trial court as provided in Rule 12. However, if at the preliminary hearing the evidence shows facts which would ultimately require the suppression of evidence sought to be used against the defendant, the evidence must be excluded and must not be considered by the magistrate in determining probable cause. A record of the proceedings must be made by stenographic means or recording devices.
Rob Wood will present only the information necessary to prove there is probable cause that Lori and Chad conspired to hide the evidence of a crime. While information about the children’s deaths will come out, Wood will do his best not to tip his hand by putting on any evidence relating to how the children died. Wood will describe and show photos of the children’s burial, the condition of their bodies, and the autopsy reports. That is information that if live-streamed, that will surely inflame people’s feelings about the case, including people who could be jurors.
It’s possible that after the preliminary hearing, Chad or Lori may see the handwriting on the wall and decide to break their silence. Until now, all the information they have received has been filtered through their lawyers. The preliminary hearing is their first opportunity to see the DA in action, to see some of the evidence against them, and to experience a taste of what a trial would involve. Some of the evidence will be very hard to view. A good defense attorney will help their client by reviewing the evidence with them in advance so that the first time the client views the evidence is not in court. Evidence in murder cases is not for the faint of heart, and can’t be unseen. We all think we’re ready until someone puts the photos in front of us. As someone who has seen a lot of grisly photos, I don’t recommend it for everyone. Trauma is cumulative, and it’s vital to know your limits. And, as calculating as it might sound, Wood also doesn’t want to blunt the impact of the evidence by making it public before the trial. Don’t forget, the best trials are tactical and highly choreographed.
