State v. Canaday

WREN, Judge,

specially concurring.

I am in total agreement that Coleman v. Alabama, supra, fully supports the decision reached here by Judge Eubank. However, in view of the dissent and its focus on the principle of discovery, I would like to address more completely the nature of a preliminary hearing under the new Arizona Rules of Criminal Procedure.

As flatly stated by our Supreme Court in State v. Bojorquez, 111 Ariz. 549 at 553, 535 P.2d 6 at 10 (1975): “The purpose of a preliminary examination is not to grant the defendant an opportunity for discovery but to determine probable cause to hold the defendant to answer.” (Citations omitted.) “Any discovery that occurs at a preliminary hearing is incidental to that proceeding and is not a right of the defendant.”

Rule 5.3 and Comment thereunder articulates that the whole concept of the Rule is to focus on the issue of probable cause and to metamorphose what had been a long standing “discovery” device under the 1956 Rules of Criminal Procedure.

This concept of course lends great credence to the observation of Justice White in Coleman that the assessment of harmless error “cannot ignore the fact that petitioners have been tried and found guilty by a jury.” 399 U.S. at 18, 90 S.Ct. at 2008, 26 L.Ed.2d at 401.