What Happens at a Preliminary Hearing?

A preliminary hearing, also called a probable cause hearing, is held in some jurisdictions after someone has been arrested and charged with a crime or crimes. During the preliminary hearing, a magistrate or judge decides whether the person should be held over for trial, that is, whether there is enough evidence to proceed.

Remember a preliminary hearing is not a trial, and this means that there are not only different procedures but also a very different standard of proof to move forward. In a criminal trial, the burden of proof on the prosecution is “beyond a reasonable doubt” for conviction, whereas in a preliminary hearing, the prosecution need only show “probable cause” to continue with the charges, usually at an arraignment, a formal reading of the charges against the accused.

Along with the burdens of proof, another big difference between preliminary hearings and trials are the evidentiary rules that govern them. Generally evidence is much more easily entered into the proceedings in a preliminary hearing.

At the conclusion of the preliminary hearing, the judge will announce whether the accused will be bound over for trial; if the court finds there is not enough probable cause to move forward, the case will most likely end there.

Such a resolution, however, does not mean the accused can’t be charged with the same crime under the same facts again. If the prosecution uncovers more evidence toward probable cause, it is possible that the accused could face charges again, which would not be considered “double jeopardy” as there was never a trial in the first place.

The specific procedure and rules regarding preliminary hearings vary by jurisdiction, but generally there are three main instances in which a criminal lawyer may choose to request one for her client:

1. To ask the judge for a reduction or complete dismissal of the charges against the client;

2. To get ready for an eventual plea bargain; and

3. To learn more about the prosecution’s case against the accused.
If a defendant is going to plead guilty anyway, his criminal lawyer may choose to forego the preliminary hearing. Likewise, if there is the possibility that a witness or witnesses favorable to the defense may not be available if there is a delay in proceedings, a criminal lawyer may also choose to skip the preliminary hearing to save time.

The law surrounding the preliminary hearing varies greatly by jurisdiction, so if you have questions about this or anything else specific to your case, be sure to contact a criminal lawyer in your area.

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