A preliminary hearing is a Nevada court proceeding in felony and gross misdemeanor cases where the judge determines if there is enough evidence to continue prosecuting you. Preliminary hearings are difficult to win, though most criminal cases are resolved before they can occur.
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. What is a preliminary hearing in Nevada?
- 2. Will I have a preliminary hearing?
- 3. How soon can I get one?
- 4. What happens at a preliminary hearing?
- 5. Are preliminary hearings hard to win?
- 6. Should I plea bargain before or after the prelim?
1. What is a preliminary hearing in Nevada?
A preliminary hearing is a Nevada pretrial “mini-trial” that courts hold to check whether your felony or gross misdemeanor charges are based on probable cause. (There are no preliminary hearings in misdemeanor cases.)
If you win the preliminary hearing, the court will
- dismiss the criminal charges against you and
- release you from jail (if you are in custody).
However, you may later be rearrested on the same charges if the state decides to pursue a grand jury indictment.
If you lose the preliminary hearing, your case will get “bound over” (transferred) from Justice Court to District Court. Meanwhile, your attorney will continue to negotiate with the prosecutor in the hopes of reaching an acceptable plea deal so you can avoid a jury trial altogether.
Occasionally, the judge might add or amend charges in your case based on the evidence presented in the preliminary hearing. If your case has multiple charges, you may win on some and not others.1
Preliminary hearings also go by the names “probable cause hearing” or “preliminary examination.”
2. Will I have a preliminary hearing?
In Nevada, you are almost always entitled to a preliminary hearing whenever you are charged with a felony or a gross misdemeanor. However, the vast majority of cases are resolved with a plea bargain well before the preliminary hearing.
You also have the option of waiving your right to a preliminary hearing, but this is usually not advised. Preliminary hearings are useful tools for your attorney to see how strong the state’s evidence is and to gauge your chances of success at trial.
For instance, if your attorney can extract beneficial sworn testimony during the preliminary hearing, they may be able to use it
- on your trial date in your defense or
- as a bargaining chip to negotiate a better deal.
The only time you cannot have a preliminary hearing is if you are indicted by a grand jury, which is rare. Most criminal complaints start with an “information”, not an indictment.2
3. How soon can I get one?
In Nevada, you can get a preliminary hearing court date as soon as two weeks after your arraignment (when you are formally charged in court).
However, you can ask the criminal court to schedule your prelim a month or more down the line to give your attorney more time to prepare and subpoena witnesses on your behalf.3
4. What happens at a preliminary hearing?
A preliminary hearing in justice court resembles a Nevada trial in that both your attorney and the state may
- present and cross-examine witnesses,
- introduce evidence, and
- make closing arguments.
However, preliminary hearings do not include opening arguments. Plus you do not have the right to a jury (just a judge).4
If you lose a preliminary hearing in Las Vegas Justice Court, your case gets “bound over” to Clark County District Court.
5. Are preliminary hearings hard to win?
Yes. In criminal trials, the prosecutor must prove each charge beyond a reasonable doubt before you can be convicted. Though in preliminary hearings in Nevada, the District Attorney needs only show “slight or marginal evidence” that you committed the crimes you were charged with.
Therefore, preliminary hearings are much more difficult to win than trials because the prosecutors’ burden of proof is so low.5
6. Should I plea bargain before or after the prelim?
It depends on your criminal case, though it is usually better to settle prior to a preliminary hearing.
Preliminary hearings are a lot of work, so many Nevada prosecutors try to get out of doing them by offering you a decent plea bargain up front on the condition that you waive your right to a preliminary hearing.
So if you decide to go through with a preliminary hearing after all, the prosecutor may “punish” you by then
- offering you a harsher plea bargain or
- refusing to negotiate at all.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- The Preliminary Hearing–Better Alternatives or More of the Same – Missouri Law Review.
- Felony Information: Due Process and Preliminary Hearing on Probable Cause – Washington Law Review.
- Preliminary Hearings in a Truckload – Criminal Justice Journal.
- The Availability of a First Appearance and Preliminary Hearing – Now You See Them, Now You Don’t – William & Mary Law School Scholarship Repository.
- Preliminary-Hearing Waivers and the Contract to Negotiate – Pepperdine Law Review.
Legal References
- NRS 171.186. NRS 171.196. NRS 171.202. NRS 171.206. See also State v. Sargent (Nev Supreme Court, 2004) 128 P.3d 1052. Grace v. Eighth Judicial Dist. Court (Nevada Supreme Court, 2016) 375 P.3d 1017.
- Same.
- Same. Chittenden v. The Justice Court of Pahrump Township (App. 2024) 140 Nev. Adv. Op. 5. (“In this decision, we address NRS 171.196(2)’s requirement that a preliminary hearing be set within 15 days of a criminal defendant’s initial appearance on a felony or gross misdemeanor charge unless good cause exists for the delay.’ We conclude that when deciding whether good cause exists, the justice court must balance the defendant’s constitutional right to conditional pretrial liberty against the interests of the State and the needs of the court. Further, the court must make findings on the record to justify any delay of the preliminary hearing and undertake efforts to ensure that the hearing is held as soon as practicable.”).
- Same.
- Same. State v. McKern (Nevada Supreme Court, 2020) .