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James Holmes hearing: At last, a chance for victims to testify

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But beyond making details of the attack public for the first time in the hearing, the procedure will serve several other functions, perhaps none more poignant than creating a potential emotional outlet for victims and their families who will have the chance to testify.

Doug Godfrey, professor of law from Chicago Kent, says he will be watching for how many eyewitnesses are put on the stand, as opposed to police. He says the amount of time given to the hearing – five days, which is very rare – is indicative of motivations that go beyond fact and legal findings.

“There has been a huge movement in criminal law toward giving victims a voice in what happens – which provides both some solace and closure,” he says. 

The hearing could also allow prosecutors and defense lawyers to assess the other’s strengths and weaknesses, potentially providing the backdrop for Holmes to negotiate and accept a plea agreement before trial that could see him avoid the death penalty.

“The evidence is overwhelming in this case, so it might be just the opportunity Holmes needs to strike a deal that could spare his life,” says Robert Pugsley, professor of law at Southwestern Law School in Los Angeles.

Legal analysts say they are keen to find out how the defense will proceed.

“It's difficult to say whether a theory of defense will be articulated, although one likely theory might be mental and/or emotional incompetence,” says Bennett Gershman, law professor at Pace University in New York. “The evidence of guilt is so powerful that I don’t think Holmes has any possible chance of prevailing on the merits.” [Editor's note: The original version of this story gave the wrong first name for Professor Gershman.]

For both sides, preliminary hearings can be useful as a way to freeze a witness's testimony, analysts say.

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