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6 Things To Know About Preliminary Hearings

An arrest marks the beginning of what is often a long and difficult journey through the criminal justice system. You will make several predictable stops at the outset of this journey: the police station, where you will be booked; the courthouse for an “initial appearance,” where you will be advised of the charges against you and bail will be set; and then jail, if you cannot make bail. Whether you are released on bail or held in custody, your next stop on this journey will be the courthouse, for a “preliminary hearing.”

This short information sheet answers common questions and explains what you can expect on that important day in court. If you would like more specific information, please reach out to us by phone. We wish you well.

When a person is charged with a serious crime (generally, a crime punishable by more than a full year of imprisonment), he is entitled to a review of the evidence against him and a determination as to whether that evidence is sufficient to proceed with a criminal prosecution. This process takes place at a “preliminary hearing.”

Let’s learn a little more about this important court date.

1. The purpose of a preliminary hearing is to ensure that the State has enough evidence to justify pursuing the charges against you and moving your case toward trial.

The preliminary hearing serves as a screening device to protect against unwarranted prosecutions and a safeguard against overreaching by the prosecutor. At the hearing, the prosecutor must demonstrate “probable cause.” That is, the prosecutor must present enough evidence to suggest to a reasonable person that you (the accused) committed the crime with which you are charged.

2. In general, the preliminary hearing occurs shortly after a defendant’s arrest and initial appearance in court (when he learns the charges against him and bail is set).

The exact timing will vary, depending on whether you are facing federal or state charges and whether you are being held in custody or are free on bail. For example, in federal court, the preliminary hearing must take place not later than 14 days after your initial appearance in court if you are being held in custody, and not later than 21 days after your initial appearance if you are out on bail. The time period might be slightly shorter or longer under state law.

3. The procedure for conducting a preliminary hearing is similar to a trial.

Both the prosecutor and your defense lawyer may be given an opportunity to make a brief opening statement. The prosecutor will then call witnesses. Typically, these witnesses will be police officers and investigators involved in your case, rather than eyewitnesses to the actual alleged crime. The witnesses will simply recite their reports for the judge, including any statements made to them by the alleged victim. Your defense lawyer will then cross-examine the witnesses to poke holes in their testimony and challenge the validity of the prosecutor’s case.

When the State has completed its presentation of evidence, your defense lawyer will have an opportunity to present witnesses and/or evidence on your behalf, but he may decline to do so. As a practical matter, defense counsel rarely presents evidence at the preliminary hearing because the dangers of revealing the defense strategy far outweigh the possibility of a “no probable cause” finding. When all the evidence has been presented, the lawyers will make closing arguments to the judge, who then will make a finding of “probable cause” or “no probable cause.”

6 Things To Know About Preliminary Hearings – Continued Below