FAQ: What Reuben Foster's preliminary hearing could solve

Marcio Jose Sanchez/AP Photo

SANTA CLARA, Calif. -- Last week, San Francisco 49ers linebacker Reuben Foster pleaded not guilty to three felony charges, including one for domestic violence, he's facing from a Feb. 11 incident involving his former girlfriend. In addition to the plea, Foster made known his desire for a speedy trial.

That request set the stage for Thursday's preliminary hearing, which will be the most important and telling step in Foster's legal process to date. That hearing will take place at 9 a.m. PT in the courtroom of Judge Nona L. Klippen at the Santa Clara Hall of Justice in San Jose. The hearing is expected to take half the day.

When it's done, Foster's legal situation might not be completely resolved (he's still facing a misdemeanor marijuana charge in Tuscaloosa, Alabama) but it could have a lot more clarity.

Here's what you need to know about Foster's preliminary hearing and its potential outcomes:

What are the facts of the case?

Foster is facing felony charges of domestic violence, forcefully attempting to prevent a victim from reporting a crime and possessing an assault weapon stemming from a Feb. 11 incident involving his now former girlfriend Elissa Ennis. Last month, Ennis recanted her initial domestic violence allegations through her attorney, Stephanie Rickard. In that statement, Ennis said injuries, including a ruptured eardrum, she initially attributed to a fight with Foster were actually the result of an altercation with another woman that happened around the same time.

Ennis' statement also said there was video of the incident that would prove her story to be true. That video was turned over to prosecutors on April 27 and has become a focal point in the case as the state has spent the past couple of weeks closely reviewing it.

What are the keys to the preliminary hearing?

The video and Ennis' testimony sit at the center of Thursday's proceedings.

Steven Clark, a former Santa Clara County deputy district attorney, referred to the video as the "centerpiece" of the case and pointed out that Ennis' potential testimony will also play a big part in whether Foster's case moves forward.

"The big question moving forward at the preliminary hearing is will the accuser come to court and testify under oath to what she said through her attorney publicly?" Clark said. "That she told a lie, that her injuries were not a result of what Mr. Foster did but as a result of this pre-existing fight the day before? And the D.A. will have to evaluate whether they want to move forward if her story is credible (and) that Reuben Foster is not the one that committed violence against her."

It appears the answer to those questions is yes. On Tuesday, Ennis' attorney told the Sacramento Bee that her client does plan to testify Thursday and that she will be testifying to the recanted version of events that don't include a physical altercation with Foster.

If Ennis does testify as planned, Clark said she would be putting herself "in harm's way, legally" by admitting to fabricating her initial story, though Clark said he didn't think charges would be pursued against her.

Why did Foster request a speedy trial?

At last week's plea hearing, Foster made it clear he wanted to push for a resolution sooner than later.

"He is saying 'I want my preliminary hearing within 10 days,'" Clark said. "He didn't have to do that but what that forces the DA to do and Mr. Foster's defense team is to gear up for court and for both sides to really focus on whether this videotape shows Mr. Foster's defense version or it shows what the DA is saying happened initially. They're going to take that video and combine it with all the other evidence and have to come to a decision of 'Is this a case that we can prove to a jury?'"

In essence, Foster put the onus on the prosecution to put together a strong case in a short period of time without the benefit of his former girlfriend's original story as part of the case.

What are the possible outcomes of Thursday's hearing?

There are multiple options for how this could play out.

1. The district attorney's office could choose not to pursue the charges based on a lack of evidence or choose only to pursue the gun charge.

2. Foster could have all or some of the charges against him dismissed by the judge.

3. All charges could be pursued and the judge could send it to a jury trial.

According to Clark, the district attorney's office could still pursue the case based on things like medical records, emergency phone calls and witness accounts despite Ennis' planned testimony.

It's also possible that if the domestic violence charges don't make it to a trial that the gun charge could be pursued further, though Clark indicated the more likely outcome would result in that being reduced to a misdemeanor with volunteer work and destruction of the weapon working as potential punishments.

"The judge may not hold him to answer on some charges but feel there's enough on other charges," Clark said. "I think [Foster] wants to get that charge [domestic violence] addressed immediately. That's the key here."

Unlike a jury trial, the burden of proof to move forward from a preliminary hearing to a trial is based on probable cause.

If his case does proceed with any or all charges, Foster would be arraigned again and then have to enter another, more formal plea. A jury trial would be required to take place within 60 days of Thursday's preliminary hearing.