The Preliminary Hearing Stage of a Criminal Case

Stages of the Criminal Justice System

A lawyer advising her client before the judge in a criminal trial.
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When a not guilty plea is entered in a criminal case, a preliminary hearing may be held to determine if the case should proceed to trial. Sometimes called an evidentiary hearing, its purpose is to determine if there is probable cause that a crime has been committed. Preliminary hearings are not always necessary or mandatory, and the defendant can choose to waive it.

Once it is decided that a preliminary hearing is to be held, there are time requirements that must be met.

If a defendant is being held in custody, then the preliminary hearing must be held within 14 days from of the initial appearance. If a defendant is out on bail, the preliminary hearing must be scheduled within 21 days of the initial appearance.

During the preliminary hearing, a judge hears the evidence that the prosecution has against the defendant, not to determine guilt or innocence, but to determine if there is enough probable cause to warrant a trial..

Evidence at a Preliminary Hearing

Both the prosecution and defense attorneys can present witnesses during a preliminary hearing and can cross-examine each other's witnesses, just as in a trial, in most jurisdictions.

During the hearing, it is the job of the prosecution to convince the judge that there is enough evidence to believe that a crime has been committed and the defendant committed that crime.

It is the job of the defense to convince the judge that the evidence is not convincing enough and the charges should be dismissed.

However, the defense attorney cannot object to using certain evidence, and in fact, evidence that would not be allowed to be presented to a jury trial, is allowed to be presented at a preliminary hearing.

Major Differences Between a Preliminary Hearing and a Trial

  • Trials can be presented to a jury or to just a judge, but a preliminary hearing is presented only to a judge and never a jury.
  • During a trial, the prosecution has the burden of proof that the defendant is guilty of all of the charges beyond a reasonable doubt. In a preliminary hearing, the prosecution must only show that there is enough evidence that a crime was committed and the defendant committed the crime.
  • A trial will determine if a defendant is guilty or innocent. A preliminary hearing will determine if the evidence that a crime was committed by the defendant is strong enough to go forward with a trial. Trials are expensive, both for the state and often for a defendant. A preliminary hearing protects a defendant from being unjustly prosecuted and protects the state from the expense of going to trial with a weak case.
  • A preliminary hearing also offers both sides an opportunity to see the evidence that might be presented at trial. Because of this, many times the evidence presented at a preliminary hearing is not all of the evidence that is available. The defense may decide it is in the best interest of the defendant, not show any evidence during a preliminary hearing. Only the prosecution is required to show evidence that the case warrants a trial.
  • Unlike a trial that could last for months, a preliminary hearing usually takes from a few minutes to a few hours, depending on the case being presented.

    The Grand Jury System

    Preliminary hearings are not held in all criminal cases or in all states. Some states only conduct preliminary hearings in the case of felony charges, not misdemeanor crimes.

    Some states utilize a grand jury indictment system, rather than a preliminary hearing. A grand jury is a panel of citizens who hear the prosecution's evidence in a criminal case to determine if there is probably cause to believe that a crime has been committed.

    If the judge decides there is probable cause to believe the crime was committed by the defendant, a trial will soon be scheduled. However, if the judge does not believe the evidence establishes probable cause that the defendant committed the offence, he will dismiss the charges.

    True Bill or No Bill

    Unlike preliminary hearings, grand jury proceedings are secret and held behind closed doors.

    Usually, only the prosecution presents witnesses and the defendant and his attorney is not present. No judge is present.

    After hearing the evidence, the grand jury votes either a "true bill" or a "no bill." A true bill means the jury has decided the case should proceed to trial. No bill means that the evidence was found insufficient to indict.

    Return to: Stages of a Criminal Case