During a preliminary hearing, the prosecutor presents evidence (which can be witnesses, documents and physical evidence) that the defendant committed the charged crimes. The purpose of the proceeding is for the judge to determine if there is sufficient evidence to bind the defendant over to stand trial.
The hearing is a type of mini-trial that occurs
- after a defendant has been arraigned but
- prior to a full-on jury trial.
Pros of having a preliminary hearing
A defense attorney can use the preliminary hearing to:
- build a foundation to impeach the prosecutor’s witnesses,
- preserve a witness’s testimony,
- provide a basis for plea bargain negotiations, and
- evaluate the strengths and weaknesses of the case.
Preliminary hearings are not always required, and a defendant can elect to waive one.1
Preliminary hearings involve both prosecutors and criminal defense attorneys presenting evidence before a judge regarding a defendant’s criminal charges or alleged crime.
What is a preliminary hearing?
A preliminary hearing is also referred to as a
- “prelim” or
- a probable cause hearing.
These hearings involve both prosecutors and criminal defense attorneys presenting evidence before a judge regarding a defendant’s criminal charges or alleged crime.
Note that some states in the United States only conduct these hearings when there are felony charges (as opposed to misdemeanor charges). Other states use grand jury proceedings.
The prosecution’s case
The judge first listens to evidence presented by the prosecutor, or district attorney. This evidence comes in the form of witness testimony and even physical evidence (such as bloody clothing, a weapon, ski mask, etc.). The prosecutor aims to persuade the judge that a case should proceed to a criminal trial.
The district attorney typically presents his/her case through the testimony of a qualified law enforcement officer (who may or may not be the arresting officer).
“Qualified” means that the police officer has at least five years of experience and/or a certain level of training. The officer can testify to hearsay evidence, which is normally disallowed in a criminal jury trial.
The defendant’s case
As to a defendant’s criminal lawyer, he/she is allowed to present evidence to the judge that shows the defendant should not stand trial for the crime(s) charged. The lawyer can conduct cross-examination of any of the prosecution witnesses and even cast doubt on any of the prosecutor’s physical evidence.
Witnesses can also be called if their testimony will:
- establish an affirmative defense (like an alibi),
- negate an element of a crime charged, or
- impeach the testimony of a prosecution witness.
The burden of proof
The burden of proof at these hearings is on the prosecutor and he/she must show that:
- there is enough probable cause to show that a crime was committed, and
- there is enough probable cause to believe that the defendant is the person who committed that crime.
“Probable cause” is a lesser standard of proof than a finding of “beyond a reasonable doubt” (which is used at a jury trial). It is met if there is sufficient evidence to show that the defendant committed the crime charged. Or, put another way, it is met if there is a strong suspicion that the defendant did it.
What happens next
If the judge finds that there is probable cause, a trial gets scheduled. However, if the judge finds no probable cause, the charges against the accused get dismissed. In addition, a judge may decide to reduce some or all of the charges against the defendant.
Note that preliminary hearings are not always required, and some states only say they must be held in felony cases that involve a charge of a felony offense. If a hearing is held, it typically must be held within 14 days of the initial appearance if the defendant is being held in custody. If the accused is out on bail, then the preliminary hearing must be held within 21 days of the initial appearance.2
What are some of the defense attorney’s goals at the hearings?
Some of the goals of a defense counsel at a preliminary hearing are to:
- build a foundation to impeach the prosecutor’s witnesses,
- preserve a witness’s testimony,
- provide a basis for plea bargain negotiations, and
- evaluate the strengths and weaknesses of the case.
In addition, conducting a preliminary hearing might:
- highlight defenses that were not apparent before the hearing,
- reveal witnesses who will not hold up well under cross-examination, or
- demonstrate to the prosecutor that he/she has a weak case.3
Is an arraignment different than a preliminary hearing?
Yes. An arraignment is another hearing in the criminal court process where a person accused of committing a crime is told what he or she is charged with and is asked how he/she would like to plea. The hearing marks the first formal court proceeding in the pretrial process following an arrest.
Purpose of arraignment
This is the stage in a case where:
- the court will advise the defendant of his/her Constitutional rights,
- the accused will find out the specific charges that have been filed against him/her,
- the defendant will have the opportunity to enter a plea, and
- the court will set, modify, reinstate, or exonerate the accused’s bail.
As to a plea, the defendant may enter any of the following:
- not guilty,
- guilty, or
- nolo contendere (or “no contest”).
The latter is essentially a guilty plea with the difference being that a “no contest” plea cannot be used as evidence against a defendant in the event that there is also a civil case that arises from the incident.
Setting bail at the arraignment
As to the issue of bail, note that before the judge makes the decision on whether to grant bail, he/she must hold a bail hearing. During this hearing, the judge learns facts about:
- how long the defendant has lived in the area,
- if the accused has family in the area,
- the defendant’s prior criminal record,
- if the accused has threatened any witnesses in the case, and
- if the accused poses a danger to the community.
The judge will consider all of these factors in determining whether bail should be granted.4
Legal References
- See, for example, CRS 16-5-301; .
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- See, for example, Ng. v. Superior Court (1992) ; Stanley v. Justice Court (Court of Appeal of California, Third District, 1976) 55 Cal. App. 3d 244.
