What Is a Preliminary Hearing?

A preliminary hearing takes place prior to a criminal trial, a little bit like an arraignment. The purpose of a preliminary hearing is for a judge to decide if there is sufficient evidence to present at trial.

During the preliminary hearing, the judge will consider whether the evidence provides probable cause that a crime occurred and that the defendant committed said crime. If there is sufficient probable cause, the case will go to trial. Probable cause is logical conclusions based on the evidence, e.g. Fingerprints on a murder weapon. If the judge is not convinced that there is probable cause in the preliminary hearing, the charges might be dropped.

Timing

Under Federal criminal procedure, a preliminary hearing shall be had within 10 days of arrest on a Complaint, the accused also has the right to a Preliminary Hearing, during which an Assistant U.S. Attorney may offer testimony to establish probable cause, and the defense attorney may provide evidence on behalf of the accused. If the Magistrate Judge overseeing the hearing finds sufficient probable cause as to the commission of the crime as well as the accused’s role in it, the accused is bound over for further proceedings by a grand jury. Note, if the grand jury returns an Indictment against an alleged offender before arrest is made, a Preliminary Hearing is not necessary.

What Can You Expect in a Preliminary Hearing?

The exact procedure of a preliminary hearing may vary depending on the case and the evidence that will be presented. But there is a certain order to the steps:

1. The judge will listen to the arguments from the prosecutor and the defendant’s attorney in that order.
2. Witness testimony
3. Cross-examination of witnesses by the defendant’s attorney
4. Physical evidence
5. Defendant’s attorney rebuts the physical evidence
6. The judge makes a ruling for the preliminary hearing based on if there is reasonable doubt or not.
   
   

Does Every Case Have a Preliminary Hearing?

Not every case will have a preliminary hearing. Some states will only hold preliminary hearings for felony charges, and others will use a grand jury instead. Every state has different proceedings.

A preliminary hearing might not be held if the government and the defendant agree on a plea bargain. Often, plea bargains will be more favorable prior to a preliminary hearing than after. This is because the prosecutors have not invested much time or resources in the case. Once a preliminary hearing is over, the prosecutor may believe their case is strong enough to result in a good trial. If the preliminary hearing does not go well, the defendant may be able to get even more favorable terms for the plea bargain.