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.
Patricia W. Weinberg & Robert L. Weinberg,
The Congressional Invitation to Avoid the Preliminary Hearing: An Analysis of Section 303 of the Federal Magistrates Act of 1968,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol67/iss7/3