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Preliminary Hearing

A preliminary hearing is a court proceeding before a criminal trial to determine whether there is sufficient evidence. In the criminal justice system, a preliminary hearing, also known as a probable cause hearing, is best described as a "trial before the trial."

Preliminary hearings serve a different purpose from arraignments or initial appearances, which all occur after filing formal charges against a defendant. An arraignment is where the defendant enters a plea to the charges.

In contrast, a preliminary hearing provides more opportunities for counter-arguments. The judge does not decide whether the defendant is guilty or not guilty but whether there is enough evidence for the defendant to stand trial.

Another key difference, per the Federal Rules of Criminal Procedure, is that preliminary hearings must occur within a reasonable time after the initial appearance unless:

  • The defendant waives the hearing
  • The defendant receives an indictment
  • The government files a complaint charging the defendant with a felony or misdemeanor
  • Or the defendant consents to trial before a magistrate judge

What To Expect at the Preliminary Hearing

Winning at a preliminary hearing can be more difficult than winning at trial. However, success at this stage can result in charges getting dropped. It is essential to know what to expect at preliminary hearings.

The Probable Cause Determination

For a preliminary hearing, the burden of proof is probable cause. Under this legal standard, a judge finds whether a logical basis for the prosecution exists and whether the government has enough evidence in fact and circumstance to reasonably believe that a crime was committed. If so, the entire case proceeds to a jury trial (or bench trial). This is where the prosecution will try to prove beyond a reasonable doubt that the defendant committed the alleged crime.

The prosecution goes first to present evidence to support the criminal charges. The prosecutor (district attorney or state attorney) may:

  • Call prosecution witnesses to testify (e.g., investigating law enforcement)
  • Introduce physical evidence or hearsay evidence

The defense will challenge weak evidence in the criminal law case. A criminal defense lawyer can:

  • Undermine the government's witnesses through cross-examination
  • Call into question any evidence presented against the defendant
  • Challenge the constitutionality of a search or arrest warrant

If a judge finds the prosecutor's case is not strong enough, and there is no probable cause, the case against the defendant must be dismissed before trial.

What Types of Cases Are Eligible for Preliminary Hearing?

A preliminary hearing is not held in every criminal case where a defendant enters a "not guilty" plea. Some states conduct preliminary hearings for felony cases. Other states use a grand jury indictment process to determine whether probable cause exists.

The possibility always exists that at any time before the preliminary hearing, a criminal offense will get resolved through a plea bargain with the defendant. The prosecution may offer its most favorable plea offers prior to a preliminary hearing at a pretrial conference. On the other hand, if a judge finds probable cause at the preliminary hearing, the prosecution will likely be unwilling to offer a plea bargain.

However, the defense may wait to see if a judge dismisses the case altogether. Even if the court finds probable cause, the threshold is very low. If the evidence is circumstantial or weak, the prosecution has shown its hand. The defense may negotiate better terms. Thus, the timing of negotiations and agreements around preliminary hearings should be carefully considered.

Meet With an Attorney About Your Preliminary Hearing

A preliminary hearing is an incredible opportunity to prevent a trial from happening in your case. That means you should make the strongest arguments you can to show the weaknesses of the case against you. Criminal convictions carry collateral consequences.

For example, a felony charge of domestic violence or driving under the influence (DUI) can result in loss of employment, housing, or driving privileges. The assistance of an experienced attorney can make an enormous difference in preparing and presenting your case. Get started today and call a criminal defense attorney near you.

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