May a circuit judge hear a felony case after presiding over its preliminary hearing as a district judge?

Plain-English summary

A circuit judge asked whether having conducted a felony preliminary hearing while serving as a district judge disqualified the judge from hearing the later case. The Commission answered no.

The opinion quotes Coleman v. State for the limited purpose of a preliminary hearing: whether an offense occurred and whether there is probable cause to charge the defendant. It also quotes Alabama Rule of Criminal Procedure 5.3(a), which limits admitted evidence to the probable-cause question.

The Commission compared that inquiry to issuing an arrest or search warrant. It cited Opinions 83-188 and 84-203 for its earlier conclusion that issuing such a warrant alone does not disqualify the judge from presiding at trial on charges arising from the same facts.

Currency note

This opinion was issued in 1993, after the Alabama Supreme Court's 1975 adoption of the Alabama Canons of Judicial Ethics. Subsequent amendments or later opinions may have changed the analysis. Treat this page as historical context and verify the current Canons and linked opinion before relying on its conclusions.

Common questions

Q: Does the earlier preliminary hearing itself bar the judge from the felony trial?

A: No. The Commission said the circuit judge may preside despite having conducted that preliminary hearing as a district judge.

Q: What does a preliminary hearing decide?

A: The opinion quotes Coleman v. State: whether an offense occurred and whether probable cause supports charging the defendant.

Q: What prior judicial act did the Commission compare it to?

A: Issuing an arrest or search warrant on probable cause, which its earlier opinions said did not itself require trial disqualification.

Background and rules framework

The opinion applies the limited probable-cause function of an Alabama preliminary hearing. It quotes Alabama Rule of Criminal Procedure 5.3(a) and cites the Commission’s earlier warrant opinions; it does not cite a numbered Alabama Judicial Canon.

Citations and references

Cases:

• Coleman v. State, 44 Ala.App. 429, 433, 211 So.2d 917 (1968): purpose of a preliminary hearing.

Other authorities cited:

• Rule 5.3(a), A.R.Crim.P.: evidence relevant to probable cause.

Other opinions cited:

• Alabama JIC Opinions 83-188 and 84-203: prior issuance of a warrant and later trial.

See also

• AL Judicial Ethics Op. 93-510: Prior Criminal Trial and Church Friend

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 93-467
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

93-467
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
February 26, 1993
In response to your request for an advisory opinion from the Judicial Inquiry Commission, it is the opinion of this Commission that as a circuit judge, you may preside over felony cases in which you, as a district judge, conducted a preliminary hearing. “The purpose of a preliminary hearing in Alabama is to determine whether an offense has been committed and if so whether there is probable cause for charging the defendant therewith.” Coleman v. State, 44 Ala.App. 429, 433, 211 So.2d 917 (1968). At a preliminary hearing, “[o]nly evidence that is relevant to the question of whether probable cause exists shall be admitted.” Rule 5.3(a), A.R.Crim.P. This Commission has previously held that the mere fact that a judge issues an arrest or search warrant, which only involves questions of probable cause, does not disqualify the judge from presiding at the trial of the accused on charges arising out of the same facts. Advisory Opinions 83-188 and 84-203. This advisory opinion has been reviewed and approved by the Judicial Inquiry Commission and is the opinion of the Commission.