What to Expect from a Preliminary Hearing in a Criminal Case
A preliminary hearing is one of the first of many steps in prosecuting or defending a felony case. The outcome will affect the subsequent criminal proceedings. As with all criminal matters, you must hire experienced legal counsel to represent you during the preliminary hearing.
What Is a Preliminary Hearing?
A preliminary hearing takes place in a felony case after the defendant’s first appearance. The purpose of the hearing is for the district judge or magistrate to determine whether there is sufficient evidence for probable cause. Probable cause means that, based on the totality of evidence, there are sufficient facts and circumstances to support reasonable grounds to believe that the defendant has committed the felony with which they are charged.
The preliminary hearing is not a trial, but it determines whether the defendant will stand trial for the felony offense they allegedly committed based on the evidence. Waiving a preliminary hearing means the defense agrees that prosecutors have enough evidence to establish probable cause and to take the matter to trial. Waiving the hearing is not an admission of guilt, but it does forgo your ability to have the charges dropped, and will move the case forward.
What Happens at a Preliminary Hearing?
At a preliminary hearing, the judge (not a jury) considers whether there is enough evidence to establish probable cause that the defendant committed the felony charge. If probable cause is found, the defendant will be bound over for trial. If probable cause is not found, the charge will be dismissed and not proceed to trial.
The prosecution and the defense can subpoena witnesses to appear and testify regarding what they know about the alleged offense. It is common for the prosecution to present law enforcement officers who investigated the case to testify. Videos, photos, forensic data, and other evidence may also be admitted.
What Questions Are Asked During a Preliminary Hearing?
At the preliminary hearing, the judge may ask questions in order to prevent hasty, malicious, and unwise prosecutions. Some of the questions include:
What are the charges? The prosecutor will state the charges alleged in the criminal complaint or information, which is the formal document that initiates a criminal case.
What are the elements of the offense? Every crime has specific elements that must be proven, including a mental state and a criminal act. The judge may ask about the required mental state and or what specific act or acts the prosecution is relying on to bring its charge.
Does the evidence establish probable cause? This is the primary objective of the hearing. The evidence must establish probable cause that the defendant committed the crime.
Does the defense attorney wish to cross-examine the state’s witnesses? The defense lawyer can take this opportunity to probe into the statements and qualifications of the prosecution’s witnesses. This could draw out flaws in the prosecution’s case and undermine the sufficiency of the evidence.
Does the defense want to present its own evidence? It isn’t common to do so, but the judge will allow the defense attorney to present evidence.
Should any legal precedents or case law be considered? In certain situations, the prosecution and the defense may present arguments regarding relevant case law.
Can Charges Be Dropped at a Preliminary Hearing?
Yes. Charges can be dismissed after the preliminary hearing if the judge or magistrate believes the evidence does not support probable cause to believe the defendant committed the offense. Following a preliminary hearing, the prosecution may dismiss one or more charges as part of a plea agreement, but prosecutors typically will not drop charges otherwise.
Can Charges Be Added After a Preliminary Hearing?
Yes. As more evidence is uncovered, even after a preliminary hearing, prosecutors may decide to add more charges. The preliminary hearing does not freeze all investigatory or prosecutorial activity, so there may be additional charges as more information comes to light.
Will You Go to Jail After a Preliminary Hearing?
Typically, the decision regarding whether the defendant will be held in custody pending trial is made well before a preliminary hearing is held. If a defendant is not released on bond, they will stay in the county jail. For single parents, the threat of pre-trial detention can mean serious consequences for any parenting agreement they have. This would be a good time to search for a child custody attorney to arrange for their children’s care in the short- and long-term. This jail term is not the same as a prison sentence upon conviction, although time spent in pre-trial custody will be credited toward any custodial sentence that is ultimately imposed following a conviction.
How Long Does a Preliminary Hearing Take?
A preliminary hearing can take anywhere from half an hour to a day or more. The duration depends on the number of charges, the complexity of the case, the number of witnesses, the amount of evidence, and whether there are disputes over probable cause or the defendant’s constitutional rights. A typical preliminary hearing takes 1-3 hours.
What Commonly Happens After a Preliminary Hearing?
The judge will usually find that there is probable cause to believe the offense has been committed, and then move the case forward to subsequent hearings and ultimately a trial. However, it’s important to bear in mind that the finding of probable cause is not a conviction and is not proof beyond a reasonable doubt–the much higher standard that the prosecution must meet at trial.
Should You Have a Lawyer at a Preliminary Hearing?
Yes. A criminal defense lawyer can contest any unreliable evidence against you, and therefore undermine probable cause. Your lawyer can therefore potentially get certain charges dropped and thereby help you avoid more serious punishments. Finally, an attorney can help you prepare for trial and for subsequent hearings by gaining a better understanding of the prosecution’s evidence against you.
