What Is A Preliminary Hearing?

Maybe you’ve seen it on TV or even experienced it yourself. The lawyers and judge are in the courtroom. Witnesses are being called up to the witness stand and are being questioned. The court reporter is typing away, and everyone is quiet. The attorneys make objections, and the judge makes a ruling. It sounds just like a criminal trial, but it’s not. It’s a preliminary hearing!

So, what is a preliminary hearing? How is it different from a criminal trial, and why do we sometimes have both? In short, a preliminary hearing — also called a prelim or probable cause hearing — is a formal court proceeding where lawyers put on evidence and witnesses, and a district court judge decides whether there is sufficient evidence that the alleged crime has been committed by the defendant. It is like a checkpoint for a case to be reviewed along the way in the criminal law process.

 

What Is A Preliminary Hearing In A Criminal Case?

A preliminary hearing is a hearing where a judge makes a determination that the criminal case should continue forward. It takes place between the initial court appearance and the formal arraignment. It’s basically a criminal procedure that is a check on the prosecutor’s power by making sure they have enough evidence to support the criminal charges. First of all, there are two types of criminal charges: misdemeanors and felonies. A felony offense is a much more serious criminal charge, and so it has a much more serious range of punishments. Therefore, only felony charges have preliminary hearings.

Shortly after the defendant is arrested and has attended the initial appearance on a felony case, a preliminary hearing is set to take place shortly thereafter. At the prelim, the prosecution, in most districts called the State or the Commonwealth, must prove that they have enough evidence to prove at trial that the defendant is guilty of the said criminal offense. It is also the criminal defense lawyer’s first opportunity to challenge the charges. It’s almost like a mini trial; however, it is not a jury trial because there is no jury. Only a judge hears the case but does not decide whether the defendant is guilty, but if there is enough evidence for the case to continue.

The burden of proof for trials and preliminary hearings is different. The burden of proof is a burden the prosecutor has to convenience the judge or jury that the defendant is guilty. At a trial, this burden is very high; it is proof beyond a reasonable doubt. But at a preliminary hearing, the burden is lower. The prosecutor at a prelim has to prove a prima facie case for each charge, meaning they have to prove there is enough probable cause that the crime was committed by the defendant. In other words, it is more likely than not that the crime was committed, and that the defendant is the one who did it. For this reason, prelim rulings very often favor the prosecution.

 

What Happens At A Preliminary Hearing?

In a lot of ways, a preliminary hearing looks like a criminal trial. At the preliminary hearing, the prosecution has to present evidence, most often through witness testimony, that the defendant committed the criminal offense charged. Because the burden is much lower, the prosecution does not need to present their entire case. They only need to present enough evidence that there is probable cause that the defendant committed the crime. The Supreme Court has also ruled that the admissibility of evidence is different from a jury trial. They can use hearsay evidence in a preliminary hearing, which is inadmissible at trial, to prove this.

The defense attorney gets to then question the prosecution’s witnesses in cross-examination, which will be helpful later on at trial. They also have the right to put on their own witnesses and evidence, but they usually don’t unless they believe it will lead to a dismissal or lessening of the charges. This is because, if the case does go on to a future trial, the defense doesn’t want to give away their defense strategy this early in the case.

Following closing arguments by both the prosecution and defense, the judge makes a determination. This is not a determination of guilt, but rather if there is enough evidence for the case to continue to the next phase in the criminal proceedings. Sometimes the judge takes a few days to consider, but a lot of time, they will decide then and there if there is sufficient probable cause to prove that the defendant committed the crime. The entire process is much shorter than a typical trial, sometimes lasting less than an hour, depending on the crime and jurisdiction.

 

What To Expect From Your Criminal Defense Attorney During A Preliminary Hearing

During a preliminary hearing, the first goal a criminal defense attorney has is to get the charges dismissed. This happens through challenging the prosecutor’s evidence and sometimes presenting their own evidence. This is very hard to do at a prelim, so another goal defense attorneys’ have during the hearing is to get the charges lessened. Sometimes defendants are overcharged, so if the defense team can show that the prosecutor cannot meet a certain element of a higher crime in the prelim, then the judge will lessen the charges.

Another job the defense attorney has to do at prelims is to prep for their case at trial. At the preliminary hearing, everything is recorded, and witnesses testify under oath, so everything said in the prelim can be used later at the trial. For the defense, it is therefore very important to cross-examine in a way that can help them to impeach the prosecutor’s witnesses at trial with their prelim testimony.

Finally, the defense attorney should use what happened at the preliminary hearing to evaluate how strong or weak the prosecutor’s case is. If some of the prosecutor’s evidence is going to be inadmissible at trial, they can find this out at the prelim to later file motions to suppress. Finding out the strength of the prosecutor’s case can also be extremely helpful in negotiating a plea bargain on the client’s behalf.

 

What Happens After A Preliminary Hearing?

After a preliminary hearing, if the judge decides that the prosecution has not met its burden, then the case is dismissed. If a certain element of the charges is not met, then the charges may be amended to lesser charges, possibly even misdemeanor charges.

If the judge decided that there is enough evidence to proceed with felony charges, the case is moved along to the next phase in the criminal justice system. The defendant is ‘bound over,’ which means in some jurisdictions they are transferred to a new district court judge. Once the case is bound over, the defendant is formally arraigned. At the arraignment hearing, the charges are read to the defendant, and they enter their plea. They can choose to enter a guilty plea or have the case set for trial. Often times at this point the bail may be reconsidered as well.

After the preliminary hearing and arraignment, the defense team can file pretrial motions to suppress to try to get certain pieces of evidence excluded before the trial. It is often the case that the basis for the suppression of evidence comes from the prosecutor’s evidence that was presented during the prelim.

Once the case goes to trial, everything that happened at the prelim is part of the case record and is admissible as evidence in the trial. The defense team can use the testimony of the prosecutor’s witnesses from the prelim for impeachment, and vice versa, which is why a prelim is such an important stage in the process.

 

Is There A Preliminary Hearing in Every Criminal Case?

No. First of all, prelims only happen for felony cases, not misdemeanors. This is because felonies are much more serious than misdemeanors and the preliminary hearing is a necessary check on prosecutorial power.

Second, the preliminary hearing can be waived by the defense. Waiving the prelim means that the prelim doesn’t happen, and the defendant gets bound over much sooner. There are many reasons why a defendant would want to waive their prelim, such as to move their case along in order to enter plea negotiations or prepare for trial faster.

Third, there is the alternative to preliminary hearings called the grand jury. In the grand jury, the prosecutor’s burden is the same, so they must still present their case and put on witnesses. However, the judge and the defense attorneys, and even the defendant are not present for the grand jury proceedings. A group of jurors hears the prosecutor’s evidence and vote to decide if the case should go forward. Jurisdictions differ on how frequently the grand jury is used, but typically it is reserved for high profile cases, such as a celebrity, police officer, or public official defendant, for sensitive cases, such as crimes involving child victims, or for cases where witness intimation is a concern, such as with domestic violence cases.

 

The Bottom Line

Preliminary hearings are only for serious crimes, aka felony offenses. They do not happen for misdemeanor charges. They take place after the initial appearance and before arraignment. They are a check on the prosecutor who must prove that it is more likely than not that the defendant committed the crime charged. They don’t have to prove their case beyond a reasonable doubt, which is why very few cases are dismissed at a prelim and why some defendants choose to waive it.

 

Frequently Asked Questions

What happens if I don’t show up for court?

If you are sent a subpoena to appear at a preliminary hearing, it is because you are called to testify as a witness or because you are the defendant in the case. Subpoenas are court orders. If you are the defendant, your defense counsel should inform you and prepare you for this hearing. It is extremely rare for defendants to be called to testify, but you do need to be present. While there are some court appearances that defendants do not need to appear for, for example sometimes they don’t need to appear at the formal arraignment, the preliminary hearing is not one of them. If you do not appear for the prelim, the judge will issue a warrant for your arrest.

If you are called as a witness, the attorney assigned to the case should have been in contact prior to the subpoena to inform you of the hearing and explain why you are asked to appear. If you are a witness for the prosecution, failing to appear could mean that the hearing will be continued to another date, or it is possible that the charges could be dismissed.

 

Is a preliminary hearing different from an arraignment?

Yes. The preliminary hearing happens after the defendant has been to their initial appearance and has hired a defense attorney or has been appointed a public defender. At the preliminary hearing, evidence is presented to determine whether there is probable cause that the defendant committed the crime charged.

The arraignment happens after the preliminary hearing when the case gets bound over. This is the formal arraignment where the defendant is again read the charges, which may be amended based on the prelim, and enters a plea of guilty or not guilty.

 

What are the advantages of waiving a preliminary hearing?

Waiving the preliminary hearing means that the prelim proceeding is skipped, and the defendant gets bound over and arraigned sooner. This is an advantage to defendants who want to get their case resolved as soon as possible by plea bargaining and entering a guilty plea, which can’t happen until arraignment.

Another benefit of waiving the prelim is that the defense doesn’t give away what they have planned for trial. It allows for more options with regards to defense strategies because they are not bound by the prelim record. Additionally, the prosecutor won’t know what the defense team’s approach will be at trial without the prelim.

 

What are the disadvantages of waiving a preliminary hearing?

The main disadvantage to waiving is that there is always the possibility that the charges could have been dismissed or lessened at the preliminary hearing. And, even if the charges wouldn’t have been dismissed or lessened, skipping the prelim means that the defense doesn’t get to preview the prosecutor’s trial strategy or confront their witnesses on the record.

Also, not waiving the preliminary hearing means the defendant’s case will go on longer. This is especially unfortunate for defendants who can’t make their bail. Going forward with the prelim means more time, in the long run, waiting in jail for the trial.

 

How long does a preliminary hearing typically last?

Preliminary hearings are usually only a couple of hours, sometimes even less, depending on the jurisdiction. Larger district courts with higher caseloads have shorter prelims and can do several in just a few hours. Smaller district courts have smaller caseloads, so prelims tend to be a little longer. They are almost always shorter than a typical trial which can take days or weeks.