San Francisco 49ers linebacker Reuben Foster, through his attorney, entered a plea of not guilty on May 8 to three felony charges. The action set in motion the timetable for the preliminary hearing, which is required to take place within 10 days of the plea.
On Thursday morning at the Hall of Justice in San Jose, Foster will appear in court for the hearing to determine whether there is enough evidence to warrant moving forward with a trial.
Foster faces three felony charges: Domestic violence with an allegation he inflicted great bodily harm; forcefully attempting to prevent a victim from reporting a crime; and possession of an assault weapon.
Here are the answers to some pertinent questions surrounding Foster's preliminary hearing:
What will happen on Thursday?
Both sides will present their arguments to a judge in what amounts to a mini-trial. The prosecution will aim to establish there is “probable cause” to proceed with a jury trial. The defense will attempt to show there is no reason for this case to move forward.
The prosecution and the defense can be expected to call witnesses to make their cases.
The decision whether or not there is enough evidence for a trial rests with the judge, who must weigh arguments on both sides and evaluate whether there is “some rational ground” for assuming the possibility a crime was committed.
Will the alleged victim testify?
Elissa Ennis, 28, who is Foster's ex-girlfriend, is scheduled to appear in court. She initially accused Foster of domestic violence, but later recanted the version of the events she initially told authorities. After the DA’s office still moved forward with charges, she made a statement through her attorney, admitting she lied to police during the initial investigation.
The statement revealed there is a video that proves Foster is not responsible for the woman’s injuries. The woman claims to have gotten in a fight with another woman, which was captured on video.
If the Santa Clara County DA’s office does not call on her as a witness – after all, she is expected to deny under oath that Foster injured her – the defense almost assuredly will call her as a witness on Foster’s behalf.
Why is the DA’s office moving forward?
The alleged victim has recanted her story, which would seem to make it much more difficult on the prosecution to prove its case. But all indications are that the DA’s office has no intention of dismissing its case against Foster.
Ennis stopped a passing motorist after the alleged incidence and called 911. She talked to police officers and sheriff’s deputies at the scene. And she was treated at a local hospital. The prosecution could call more than a handful of witnesses during Thursday’s hearing to support the charges of domestic violence against Foster.
Anyone with whom the alleged victim came in contact during that time frame could testify. The prosecution will try to convince the judge the most accurate account of the alleged incident was her initial statement – not the recanted version.
How common is it for alleged victims to recant their stories?
There does not appear to be empirical data on the subject, but anecdotally it is not uncommon for alleged victims to recant their statements or decline to cooperate with the district attorney’s office.
The alleged victim in the Tramaine Brock case last year was uncooperative with the DA’s office, and that case was ultimately dismissed. The situation surrounding Foster is different because the DA’s office appears to believe there are other witnesses who will substantiate Ennis’ initial accusations.
Will the video be shown?
The judge will almost certainly view the video of the alleged fight involving Ennis and another woman. It is not known whether the video will be shown in open court or privately in the judge’s chambers.
If the prosecution believes the video does not support the claim that Ennis’ injuries, including a ruptured ear drum, was caused by the fight with the other woman, they could submit the video as evidence. Or, the defense could use the video for its own case to show Ennis sustained the injuries before the alleged incident involving Foster.
Is Ennis at risk for admitting she lied to police?
If Ennis testifies under oath that she initially lied to police, she could be subject to prosecution. Former Santa Clara County District Attorney Steven Clark said he does not believe the DA’s office would pursue criminal charges against Ennis, especially if there is “some element of accuracy” to her initial statement.
How serious is the weapons charge?
It ranks a distant third on the list of the charges against Foster. Even if the domestic violence cases do not advance, the DA’s office could still pursue the assault weapon charge.
But Clark said it is likely to be viewed as “more of a technical violation" and could be reduced to a misdemeanor. The result could be nothing more than volunteer work and destruction of the weapon, Clark said.
What happens after the preliminary hearing?
If the judge believes there is probable cause to continue forward with the legal process, a jury trial would be scheduled to begin within 60 days. If the judge rules there is not probable cause, then Foster would be legally cleared of the domestic violence charges.
But, then, the focus would shift to the NFL’s own investigation. As the league's policy on personal conduct states, “It is not enough simply to avoid being found guilty of a crime.”
Under the policy, a first offense under the description of domestic violence, would result in a baseline suspension without pay of six games. A longer suspension could be warranted with consideration given to any “aggravating or mitigating factors,” according to the policy.
If Foster is cleared of criminal charges but the NFL determines there is enough evidence to warrant a suspension that would seemingly place the 49ers in a position to act. General manager John Lynch and coach Kyle Shanahan are both on record saying no player who hits a woman will have a place with the organization.
Foster, who remains under contract to the 49ers, is not taking part in the team's offseason program while his legal issues remain unresolved.