The Congressional Invitation to Avoid the Preliminary Hearing: An Analysis of Section 303 of the Federal Magistrates Act of 1968

Under prior law, it is true, many federal prosecutors routinely avoided preliminary hearings by securing continuances of the hearing date until after an indictment was obtained. But this ploy required a complaisant magistrate or an inert defendant. Moreover, the propriety of using continuances to circumvent the accused’s right to a preliminary hearing had come under increasing and sometimes successful attack. Section 303, if literally construed, can legitimize the prosecutorial practice of mooting the defendant’s right to a preliminary hearing under rule 5(c) by obtaining a relatively quick indictment. This predictable use or abuse of the Act should and can be prevented, we submit, either by a judicial construction of section 303 that preserves the defendant’s right to a prompt preliminary hearing, or by provision for alternative forms of discovery that would reduce the prosecutor’s motivation for avoiding the hearing.