Preliminary Hearing in a Criminal Case

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Shortly after an arrest, the prosecutor’s charges may face judicial review during the preliminary hearing.  Each state has its own rules regarding preliminary hearings, which may or may not require a preliminary hearing in your case. Essentially, the preliminary hearing occurs in open court in front of judge, who will decide whether the prosecutor has enough probable cause to proceed with the charges against a defendant.  According to the Federal Speedy Trial Act, a defendant has the right to a preliminary hearing, if applicable to their case, within thirty days of their arrest, unless the defendant waives their right to a speedy trial.  Additionally, defendants that have pled no contest or guilty during the arraignment will not undergo a preliminary hearing. 

What Is A Preliminary Hearing?

For the defense, the preliminary hearing is just another opportunity to have charges dismissed, reduced, and analyzed before going to trial.  For prosecutors, the preliminary hearing before a judge assures malicious, illegal, or otherwise inadmissible charges are not brought against a defendant without sufficient cause.  Some of the common attributes of a preliminary hearing include:

  • Preliminary hearings are held in open court in front of one judge, no jury members, and typically last no more than two hours
  • Prosecutors have the burden of proof, but must only show probable cause that a defendant committed an alleged charge before proceeding to trial
  • Prosecutors begin the preliminary hearing by presenting sufficient evidence, including interviewing witnesses on the stand and presenting expert testimony, which will give the presiding judge enough reason to believe the defendant should stand trial
  • Defense attorneys have the right, and often do, cross-examine witnesses, and in addition, the defense may present their own evidence, arguments, and motions to the presiding judge
  • At the conclusion of a preliminary hearing, the charges will either be dismissed by a judge, reduced by the judge, or the defendant will be “bounded over” and forced to stand trial for the original charges

Sometimes, if the defense and prosecutor agree, a preliminary hearing may be “submitted on the record”, which essentially substitutes the preliminary hearing for an actual trial, which is decided by the presiding judge.

What Are My Legal Rights During A Preliminary Hearing?

There are state-specific laws governing the process of preliminary hearings, but federal laws guarantee defendants certain rights during the process.  Additionally, your state laws may afford other provisions and protections for defendants during the preliminary hearing phase, which are not mentioned here.  Some of the rights afforded defendants during a preliminary hearing include:

  • Defendants possess the right to be represented by legal counsel during their preliminary hearing
  • Defendants can actively stage a defense during the preliminary hearing and refute the prosecutor’s evidence, but typically, charges are still bound over and now the prosecutors know your defense strategy
  • Defendants are entitled to a copy of the transcript of the preliminary hearing, which can be used as evidence during the future, especially regarding statements made by the prosecutor, prosecutors witnesses, and the defendant themselves
  • Defendants can successfully have their charges dismissed if they prove a prosecutor’s case lack sufficient evidence to prove that a crime occurred.  Additionally, the failure of key witnesses to appear, the inability of the prosecutors to prove at a minimal level that all elements of a given crime occurred, or a key witnesses’ statement falls apart under cross examination
  • If charges are dismissed, prosecutors may elect to file charges against a defendant again in the future

What Strategies Will My Attorney Use during A Preliminary Hearing?

In theory, the preliminary hearing protects defendants from being subjected to erroneous or ill-conceived charges by a prosecutor.  In reality, almost all charges are bound over during the preliminary hearing, and in essence, the preliminary hearing has become another arena for legal strategy by both parties.  Both prosecutors and defense attorneys are exposed to at least some of the other party’s strategy, which may include testing the overall strength of a given case, including evidence, witnesses, and other aspects.  All of this information and research during the preliminary hearing may be vital in obtaining a favorable plea bargain prior to actually going to trial. 

There are some downsides to having a preliminary hearing, which a defense strategy may seek to avoid by immediately going to trial.  For example, if a defendant intends to plead guilty, avoid more expenses, and keep the charges out of public scrutiny, avoiding a preliminary hearing would prove beneficial.  Additionally, if the defense feels a certain key witness may no longer be available in the future, avoiding allowing this key witness to offer testimony at the preliminary hearing, which can be used during a later trial, may require some stalling tactics, including avoiding a preliminary hearing. 


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