A preliminary hearing takes place a few days after an arrest. A preliminary hearing is also known as a probable cause hearing. It's a proceeding to determine whether there's enough evidence against a defendant to have a trial.

At the preliminary hearing the government must have enough evidence to show probable cause for the criminal case to continue. Probable cause is a reasonable belief that a person committed a crime. It's up to the judge to decide if there's enough evidence to have a trial. If there isn't, the judge will dismiss the case and the charges against the defendant will be withdrawn.

Necessity of a Preliminary Hearing

There must be a preliminary hearing when a defendant is charged with an offense other than a petty offense. A petty offense is a minor crime that generally isn't punishable by more than a six-month sentence, unless:

  • The defendant waives the hearing
  • The defendant is indicted
  • The government files an information charging the defendant with a felony
  • The government files an information charging the defendant with a misdemeanor
  • The defendant is charged with a misdemeanor and consents to trial before a magistrate judge

Purpose of a Preliminary Hearing

The purpose of a preliminary hearing is to determine whether the prosecutor has enough evidence to justify further criminal proceedings against the defendant. It involves an assessment of whether there is probable cause at the time of the hearing, even if there wasn't probable cause at the time of arrest. The determination may include an evaluation of evidence gathered after the defendant's arrest.

Preliminary Hearing Process

The preliminary hearing is held in court before a judge. At the preliminary hearing, the defendant may question witnesses and introduce evidence. If the judge finds probable cause to believe an offense has been committed by the defendant, the judge will require the defendant to appear for further proceedings.

Discharging the Defendant

After the prosecution has presented its evidence and the defense has a chance to respond, the judge decides whether there is probable cause. If the judge doesn't find probable cause to believe an offense has been committed by the defendant, the charges against the defendant will be dismissed. This doesn't prevent the government from going after the defendant for the same offense later.

If a defendant is in jail during the preliminary hearing and the state doesn't show probable cause, any charges will be dismissed and the defendant will be released from jail. If the defendant is not in jail and the state fails to show probable cause, any charges will be dismissed and the defendant will be released from the conditions of his bond.

If the judge finds probable cause, the case will go to either the grand jury or the trial court for further proceedings.

The preliminary hearing stage helps to ensure that weak cases are eliminated early in the criminal process. It also helps to save the defendant the expense of having to defend himself at a trial against false accusations.

Questions for Your Attorney

  • Do I have to have a preliminary hearing after being charged with a crime?
  • What happens if I don't attend my preliminary hearing?
  • If the judge decides there isn't enough evidence against me to go to trial, will the charges against me be withdrawn? Can I be charged with the same crime again if the judge withdrawals the charges?

Tagged as: Criminal Law, charges withdrawal, criminal lawyer