Preliminary Hearing

A preliminary hearing happens before a trial and is most commonly used to determine whether or not probable cause exists, or if that a defendant committed a criminal offense such that he should be held over for trial. This hearing usually occurs shortly after a defendant is arrested. Proving guilt is not necessary during the preliminary hearing. Learn more in our legal guide below.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jun 29, 2022

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A preliminary hearing is most commonly used to determine whether or not probable cause exists that a defendant committed a criminal offense such that he should be held over for trial. Essentially the question at this hearing is whether there a good reason to believe that a defendant did the crime he was accused of. The application, timing, and usage of preliminary hearings vary by jurisdiction. Before filing a request for a preliminary hearing, a defendant should consider the advantages and disadvantages of the request.

Preliminary Hearings Before Indictment

Many states use preliminary hearings to start a prosecution against a defendant. The purpose of a preliminary hearing is to decide whether there is probable cause that a defendant committed an offense at the beginning of a prosecution. This hearing usually occurs shortly after a defendant is arrested. As mentioned, probable cause means that law enforcement has a good reason to believe that the defendant committed and crime, and therefore should be held in jail or restricted by a bond. For example, the actual arresting officer might come and testify that he found drugs in a defendant’s pockets, conducted a field test, and the test show the drugs to be cocaine. The prosecutor and the officer have to convince the magistrate that the defendant did something that was against the law. They are not required to prove he is guilty during the preliminary hearing.

If the magistrate decides that there is probable cause that the defendant committed a crime, then the case against the defendant moves forward through the criminal justice system. If the judge decides there is not probable cause, then the defendant is released from jail or bond. Some jurisdictions refer to a preliminary hearing as an examining trial, because it examines the evidence against the accused. Once a defendant asks for a preliminary hearing, the magistrate is required to set a date for a hearing on the motion within a short time frame, usually around two weeks.

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Preliminary Hearing Procedure

Procedurally, a preliminary hearing is very similar to a jury trial, except that it is usually before a magistrate instead of a jury. Similar to a jury trial, a defendant has the right to cross-examine witnesses (ask them questions) and look at any documents used by the prosecutor to make his case. Witnesses usually include police officers, but can also include others like eye-witnesses or victims. Documents might include confessions by a co-defendant, a statement by a witness, or a lab report saying the drugs found in a defendant’s pocket were actually cocaine. Defendants are not required to produce or subpoena witnesses, but can if they choose to do so. These witnesses typically show that the state’s evidence is incorrect.

For example, if a defendant was in a different state on a company business trip at the time the officer says he committed a crime, he may want a co-worker to testify that he could not have committed the offense because he was somewhere else—thus proving the officer’s evidence is wrong. Both sides can make a closing statement at the end of the hearing. Both the state and the defendant will argue whether the state has or has not shown that the defendant probably committed a crime.

Finding Probable Cause

The burden of proof is lower in a preliminary hearing than at a jury trial. At a final jury trial the state must prove that a defendant committed an offense beyond a reasonable doubt. This is what is required to actually convict a defendant of the crime. At a preliminary hearing, the prosecution is only required to show probable cause, a much lower burden. If the magistrate decides that probable cause does exist, then the defendant will stay in jail (or on bond) until a final jury trial on the issue of guilt or innocence. If the magistrate determines that probable cause does not exist, then the charges against a defendant are dropped and he is released from custody or discharged from the bond.

A defendant may or may not be entitled to a preliminary hearing at the start of a prosecution. Some states only require a law enforcement officer to submit affidavits setting out the reasons why they arrested someone. This is usually a one page document that lists the details of the arrest. Other states allow defendants to ask for preliminary hearings, but only if an indictment or complaint has not been filed. For example, in Texas, an examining trial would be canceled after an indictment was handed down by a grand jury because the indictment by itself is a finding of probable cause, thus there is no need for a hearing on the issue of probable cause. On the other hand, some states automatically give defendants the right to a preliminary hearing as soon as they are charged with a crime.

Preliminary Hearings After Indictment

Even though many jurisdictions use preliminary hearings right after a defendant is arrested, other jurisdictions use preliminary hearings after the case is formally filed. For example, after a defendant is indicted and arraigned, he will go to court. If he decides that he does not want to accept a plea bargain, he can ask for a jury trial.  However, he may want a preliminary hearing before the jury trial to address certain issues before the final jury trial. This is also called a pre-trial hearing. The court can make advance rulings regarding the admissibility of certain types of evidence.  Essentially, this is the way a defendant can complain about or challenge the way his case was handled by the arresting officer.

For example, if a defendant wants to challenge the reason why he was pulled over on a traffic stop, he could request a preliminary hearing to show that he was not speeding. If the defendant can prove that the officer did not have a good reason for making a traffic stop, then he can also ask the judge to suppress (or throw out) evidence that was found after the stop. To invoke the right to a preliminary hearing, a defendant must file a motion and then request a setting with the court coordinator to have the motion heard. If a defendant does not request a preliminary hearing, then he waives, or gives up, his right to challenge many issues after he is convicted. Waiver means a defendant loses the right to complain about the court’s actions on appeal.

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Preliminary Hearings for Parolees

The parole boards in some states also utilize preliminary hearings. When a defendant violates a condition of his parole, then the parole board will hold a hearing to determine if there is probable cause to believe that the defendant violated a term of his probation. This type of preliminary hearing is structurally similar to a pre-indictment preliminary hearing. (Witnesses give testimony, defendant can ask questions, etc.) However, the hearing is usually before a board rather than a magistrate. The parole violation does not have to be a new criminal offense. The violation could be a rule broken by the defendant, like failing a drug test, failing to report to his parole officer, or leaving the state without permission.

Advantages of a Preliminary Hearing

Many defendants request a preliminary hearing because they truly want to hear, understand, or challenge the evidence against them. However, before a defendant requests a hearing, he should weigh the advantages and disadvantages of requesting a preliminary hearing.

The first major benefit of a preliminary hearing is that a defendant gets to challenge the evidence which is being used to hold them in jail. If a defendant prevails at the preliminary hearing, then the defendant is released without having to post a bond or they no longer have to make bond payments. The second benefit is that it gives a defendant an opportunity at free discovery. Discovery is what the name implies—the chance to discover or see the evidence. Some states have limited discovery provisions, so a preliminary hearing is an excellent opportunity to learn what evidence the state has against a defendant.

For example, if the prosecutor decides to offer an offense report at the hearing, a defendant would finally get to see the report or any attached statements. A similar benefit is the ability to assess the state’s case by cross-examining witnesses and testing the accuracy of their testimony. If a witness is incredibly strong at the pretrial hearing, a defendant may want to consider accepting a plea bargain later. If the witness is terrible and can’t remember any details, the defendant may want a jury trial, or might at least seek a better plea bargain. Even though there are many advantages, a preliminary hearing can also present some challenges.

Disadvantages of a Preliminary Hearing

For the state, a preliminary hearing is a practice run. A finding of probable cause or lack of probable cause does not affect jeopardy. If a defendant wins, then the defendant can still be charged later after the state gathers more evidence. Quite often, the main disadvantage of a preliminary hearing is that it forces a prosecutor to see the weaknesses in his case—which means the prosecutor will then know what additional information he needs to make a stronger case against a defendant. Basically, the defendant might win the battle but lose the war.

A similar disadvantage is reverse discovery for the state. By the questions they ask at the hearing, defendants frequently give away their defensive strategies. For example, officers rarely perform DNA testing on drug cases. But if a defendant asks the officer several questions about why they did not perform DNA testing, the prosecutor may decide to perform DNA testing since it was such a big issue in the preliminary hearing. From the time after the preliminary hearing to jury trial, the prosecution will seek more evidence or testimony to address a defensive theory and make their case stronger. If the defendant had not requested a preliminary hearing, the prosecutor probably never would have gotten the additional evidence before trial.

Because everything that is said at a preliminary hearing is recorded, another effect is that it preserves testimony which may or may not work in a defendant’s favor. For example, many victims of domestic violence try to drop the charges. When it comes time for trial, the complaining victim may not appear and testify—which normally means that the charges against a defendant are dismissed. However, if the victim testified at the preliminary hearing and she was effectively questioned about the merits of her allegations, then her testimony could potentially be admissible at a later trial, despite any hearsay or confrontation objections, because her testimony was recorded earlier. The preservation of certain evidence can sometimes backfire in the form of a conviction.

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