Preliminary Criminal Hearing: Process and Procedures

Preliminary hearings seek to prevent a defendant from having to stand trial for unfounded charges.

By , Attorney · New Mexico School of Law
Updated September 19, 2022

In any felony case, an arrest or a criminal complaint is not enough to require the defendant to stand trial for the crime. Shortly after arraignment, the court must conduct a proceeding—a preliminary hearing or a grand jury proceeding—where the state is required to present enough evidence to establish "probable cause" to believe that the defendant committed the crime. The defendant cannot be required to stand trial unless the prosecutor can present sufficient evidence to charge the defendant with the felony.

What Is a Preliminary Hearing?

At a preliminary hearing, a judge hears the state's evidence and decides whether there is sufficient evidence to require the defendant to stand trial. The defense is not required to present evidence but may choose to do so to rebut the allegations against the defendant. If the evidence is not sufficient to establish probable cause, the judge must dismiss the charges. The purpose of a preliminary hearing is to protect the accused from unfounded criminal charges.

Some states use grand jury proceedings as an alternative to a preliminary hearing. The prosecutor presents evidence to a grand jury made up of members of the public. No judge is present but the grand jury is instructed to review the evidence according to a probable cause standard and determine whether there is sufficient evidence. If the grand jury finds probable cause, the state issues an indictment against the defendant and he must stand trial for the charges.

When Does a Preliminary Hearing Occur?

If a defendant is arrested and held in custody (jail), a preliminary hearing must occur within a certain number of days or the defendant must be released from custody. The U.S. Constitution and state constitutions, as well as criminal rules of procedure for state courts, provide that a defendant can be held for only a limited time on the basis of an arrest and criminal complaint. In order for the court to continue holding a felony defendant in custody, the court must conduct the preliminary hearing within the amount of time prescribed by state law and issue a formal charging instrument, sometimes referred to as a "criminal information." If the preliminary hearing is not conducted within the time prescribed, the defendant must be released.

If the defendant has been released on bail or "own recognizance" ("OR"), the court can conduct the preliminary hearing at a later time. However, the preliminary hearing must occur within a reasonable time after arrest. An unreasonable delay violates the defendant's Sixth Amendment right to a speedy trial. If a defendant is arrested or charged in a criminal complaint and the prosecutor's office or the court does not schedule the preliminary hearing until months or years later, the case can be dismissed because of the delay. The judge must review the circumstances of the delay and determine whether the delay was unreasonable and, therefore, violated the defendant's constitutional right to a speedy trial.

What Happens at a Preliminary Hearing?

A preliminary hearing is somewhat like a mini trial. The prosecution can call witnesses to testify and present physical evidence or documents and records to show the defendant likely committed the crime. A preliminary hearing usually is not as exhaustive as a criminal trial and the prosecution likely will not present all its evidence against the defendant—just enough to establish probable cause.

The rules regarding what kind of evidence can be presented may be more relaxed than at a trial—for instance, hearsay may be permitted. This means that a police officer can testify about what witnesses told him during interviews and the prosecutor will not be required to have those witnesses testify at the hearing. How courts conduct preliminary hearings and what occurs in each hearing varies with each state's laws and its state constitution.

Should the Defense Present Evidence or Testify at the Preliminary Hearing?

Whether to present evidence and whether the defendant should testify at the preliminary hearing are questions that a defendant and his attorney must answer in each individual case. In some cases, it may be best for the defense to simply let the prosecution present its evidence and say very little. In other cases, however, there may be compelling evidence that shows clearly that the defendant did not commit the crime or was incapable of committing the crime—perhaps because he was out of the country or in another state when the crime was committed and the defendant has solid evidence to establish this alibi.

In some cases, a defense attorney and a defendant may agree that the defendant should testify at the preliminary hearing. For instance, the case may involve the issue of self-defense and the defendant may be a much more credible witness than the victim. This kind of decision is very difficult to make and a defendant should never choose to testify at a preliminary hearing without consulting with an attorney and exploring the matter thoroughly.

How Often Do Defendants Waive Preliminary Hearings?

Criminal defendants usually have the option to waive the preliminary hearing, but it happens very rarely and no defendant should do this without the advice of an attorney. If you waive a preliminary hearing, you allow the prosecution to proceed on criminal charges against you without having to present its evidence.

Reasons to Waive a Preliminary Hearing

Most likely, a competent defense attorney would recommend waiving the preliminary hearing only if the evidence against the defendant was substantial or overwhelming, and waiving the hearing would benefit the defendant in a significant way. For example, if the case is a high-profile matter involving a great deal of publicity, an attorney might recommend waiving a preliminary hearing in order to limit the release of information and evidence to the public. Other possible reasons to waive a preliminary hearing include avoiding harmful information being released that could hurt a defendant's bail status or reputation and avoiding witness testimony that might not otherwise come to light.

Reasons Not to Waive a Preliminary Hearing

As mentioned above, a preliminary hearing gives the defense a preview of the prosecution's case. This preview can provide valuable insight into the strengths and weaknesses of the case, such as the credibility and demeanor of witnesses, as well as give the defense possible information to use in plea negotiations. Evidence presented during the hearing might also reveal new defenses or defense strategies. While gleaning all of this information, the defense doesn't have to present any of its own. Even if it turns out the prosecution has a rock-solid case, this information is also valuable when evaluating plea offers.

Importance of Having an Attorney at a Preliminary Hearing

A defendant is entitled to have an attorney represent them at a preliminary hearing. If the defendant requests an attorney, the court cannot conduct the hearing without ensuring that the defendant has private counsel or appointing an attorney—such as a public defender—to represent the defendant. The defense attorney can advise the defendant of his rights, make arguments to the court about whether the evidence is sufficient to support formal charges against the defendant, and present evidence on the defendant's behalf.

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