What Happens in a Preliminary Hearing?

A preliminary hearing is something that occurs whenever a defendant pleads not guilty and the prosecutor continues to push the claims against them. When dealing with this, anyone going to trial is going to want to have an advance idea of what the preliminary hearing portion of the trial means. The more preparation you have done and the more you know what will happen, the more likely you are to be able to follow the situation and work with your attorney to best enhance your chances of successfully having the charges against you dismissed.

What does a preliminary hearing involve?

First off, we need to discuss the fact that a preliminary hearing may not even be required. Indeed, while it may often be in their best interests for the defendant to go ahead with this process, they are well within their rights to choose to waive this and move on with the actual trial. There are some situations where a defendant may want to just skip this process; for example, if they intend to plead guilty, the defendant would just be wasting both their time and the court’s time for no reason, which could very well cause some umbrage with the judge in deciding how long your sentence is going to be.

The defendant may also want to avoid having the evidence laid out against them in this manner, because if the evidence is strong, or especially if the charges that were filed against the defendant were particularly bad, it may once again hurt them in the judge’s eyes and result in a potentially inevitable conviction being way harsher for the defendant. Waiving a preliminary hearing may also have a strategic advantage, as the defendant and their lawyer could use this waiving as well as continuations to hopefully see the prosecution have to drop it through attrition. This is not a guaranteed success, but a defendant who wishes to avoid going to trial may give this a try.

Once the defendant and their attorney have decided that they want to go through with a preliminary hearing, the actual process MUST take place either within 14 days after the defendant’s initial appearance if they are in jail, or 21 days after if they are out on bail at the time. The best way to think of a preliminary hearing is to think of it as a mini trial, of sorts. There are a lot of the same machinations that go on in a typical trial: the calling of witnesses, the presentation of evidence, etc. Basically, the goal of the prosecution is to make sure that they can demonstrate that the case is strong enough to go to trial.

In this situation, the defense is then able to cross-examine these witnesses in order to, ideally, demonstrate to the judge that the witness accounts are not up to par, and thus should not be given regard for whether this case should go to trial or not. The one sticking point that the defense has to deal with, however, is that they are not actually allowed to object to evidence being presented, and in fact, the preliminary hearing has looser rules as to what evidence is allowed to be presented to the judge, allowing certain evidence to be considered that would otherwise be considered inadmissible to show to the jury. Indeed, whatever jury will be involved have nothing to do with this portion of things, and as such, cannot be influenced by evidence presented at this juncture.

After the evidence and witnesses are presented before the court, and the defense has had its opportunity to cross-examine the witness, the judge must then determine whether there is merit to this case. If the judge does determine that the case is strong enough, that there is probable cause that the person may have committed the crime they are being accused of, they will then set the trial to be scheduled for a future date and time. Curious that the preliminary hearing involves demonstrating probable cause of guilt, yet the actual trial portion requires a lack of probable cause determined by the jury that they are not guilty.

If the defense is fortunate enough, the judge may decide that the case lacks merit and dismiss the charges being levied against the defendant. Ultimately, any defendant is going to have a right to a preliminary hearing, and the prosecution hasn’t the right to deny them of that, regardless of how strong they may believe their evidence is. There are a number of tools at the defendant’s disposal that can be used to protect themselves from being done in by the justice system.

One option that a defendant has is to be able to go through the preliminary hearing portion and waive a jury trial. Rather, the defendant may choose to seek a decision from the judge if they feel that they may get a more fair ruling than they would in a jury trial. This can also be used in order to plead guilty without having to actually admit to any guilt.

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