If you're curious about what happens during a preliminary hearing, you've come to the right place.
Also known as a "trial before the trial" or a probable cause hearing, a preliminary hearing is typically the second step in criminal court proceedings.
It also may be one of the most important steps, as it helps determine whether or not the prosecutors (sometimes known as “district attorneys”) have enough evidence to send a defendant to trial for the criminal charges they have been arrested for.
Steps of the Criminal Process in Court
The first step in criminal proceedings typically is the arraignment. This is a quick initial appearance in front of a judge where a defendant is expected to make a plea, and then will have a date set for his preliminary hearing. At this hearing, the judge will also advise anyone who does not already have an attorney of their right to counsel and that if they cannot afford a private attorney, a public defender will be appointed. This right is true for any felony or misdemeanor charges where jail time is possible.
In some jurisdictions, the prosecuting attorney will use a grand jury to decide whether there is probable cause to continue the prosecution. In others, a preliminary hearing will take place.
The preliminary hearing serves as a sort of "check" on the government. Prosecutors must demonstrate that there is sufficient evidence, or probable cause, such that a jury could possibly be convinced that the defendant is guilty. A defendant can choose to file a waiver or have the hearing.
Prosecutors may call a few witnesses--the arresting officer or other law enforcement officers--and present physical evidence of the alleged crime to the presiding judge. Depending on the jurisdiction, non-admissible evidence, such as hearsay evidence, may be considered.
The defense has the option to cross examine witnesses and challenge evidence, though it's rare that a defendant introduces his own witnesses or testifies himself. It is a criminal defendant’s right not to testify throughout the court process. This should be made by consulting with your criminal defense attorney.
If the judge finds that there is not enough evidence to support a prosecution because the prosecutor has not met their burden of proof, then the defendant will be free to go. If there is sufficient evidence, the case is then transferred to the trial court, with the defendant returning to prison or remaining out on bail until the trial begins.
Keep in mind that this is typically what occurs during a preliminary hearing, but that rules vary by jurisdiction. If you're expected to attend one in the future, ask your criminal defense attorney for advice as they are familiar with the criminal procedure in your area.
Related Resources:
- What Happens When You're Charged with a Crime (FindLaw's Learn About the Law)
- Stages of a Criminal Case (FindLaw's Learn About the Law)
- Preliminary Hearing (FindLaw's Learn About the Law)
