What You Need to Know About the Preliminary Hearing
In many jurisdictions, a person who has been arrested and charged with certain crimes is entitled to a preliminary hearing, sometimes also called a probable cause hearing. The point of the preliminary hearing is for a judge to determine whether the prosecution has enough evidence (probable cause) to hold the person charged over for trial.
One important fact regarding a preliminary hearing is that if there has been a grand jury indictment in the case, there is no opportunity for a preliminary hearing; this is because the grand jury has already served the function of finding probable cause on the charge or charges. The provisions regarding preliminary hearings vary greatly by state, so be sure to consult a local, experienced criminal defense attorney regarding your situation.
Why would a criminal defense attorney request a preliminary hearing?
Criminal defense attorneys may find preliminary hearings useful for various reasons, including the following:
- To request dismissal or reduction of the charges
- To find out more about the prosecution’s case, witnesses, and overall strategy
- To plan a path to a plea bargain
Why would a criminal defense attorney not request a preliminary hearing?
If a defendant wants a very fast trial process, usually because of an impending guilty plea, an attorney may choose to skip the preliminary hearing. Another reason may be if potential beneficial witnesses may not be around by the time the case comes to trial; in that instance, it may be a good idea to speed up the judicial process and bypass a preliminary hearing.
Is a preliminary hearing a trial?
No. There are many differences between preliminary hearings and trials, including the burden of proof on the prosecution. The prosecution only needs to show “probable cause” to hold a defendant over for trial in a preliminary hearing, not prove the commission of a crime “beyond a reasonable doubt” as for conviction in criminal trials.
Moreover, evidentiary rules differ greatly between preliminary hearings and trials; it is much easier for a prosecutor to enter certain types of evidence during a preliminary hearing, especially hearsay.
If the charges are dismissed, am I free to go?
Yes, you will be cleared on the charges pending against you if charges are dismissed at the preliminary hearing, but keep in mind you could be charged with the same crime under the same facts again if the prosecution comes up with more probable cause. This would not be “double jeopardy” because you were never actually brought to trial on the charges; as noted above, a preliminary hearing does not count as a trial.