Preliminary Hearing

Criminal prosecutions typically begin with an arraignment. In some jurisdictions, or in certain kinds of cases, a "preliminary hearing" may be held. Preliminary hearings are similar to arraignments, but provide more opportunity for counter-argument.

A preliminary hearing is best described as a "trial before the trial" at which the judge decides, not whether the defendant is "guilty" or "not guilty," but whether there is enough evidence to force the defendant to stand trial. In making this determination, the judge uses the "probable cause" legal standard, deciding whether the government has produced enough evidence to convince a reasonable jury that the defendant committed the crime(s) charged.

The "probable cause" standard is different from the standard for conviction, which is typically guilt "beyond a reasonable doubt." Probable cause refers to the existence of a logical basis for the prosecution, as opposed to strong evidence of guilt suggested by the conviction standard of "beyond a reasonable doubt." This means that winning at a preliminary hearing can be more difficult than winning at trial. Difficulty doesn't mean impossibility though, and a success at this stage can result in charges being dropped.

What to Expect at the Preliminary Hearing

In reaching this probable cause decision, the judge listens to arguments from the government (through a government attorney, or "prosecutor"), and from the defendant (usually through his or her attorney). The prosecutor may call witnesses to testify, and can introduce physical evidence in an effort to convince the judge that the case should go to trial. The defense usually cross-examines the government's witnesses and calls into question any other evidence presented against the defendant, seeking to convince the judge that the prosecutor's case is not strong enough, so that the case against the defendant must be dismissed before trial.

Preliminary Hearing -- Not in Every Case

A preliminary hearing may not be held in every criminal case in which a "not guilty" plea is entered. Some states conduct preliminary hearings only when a felony is charged, and other states utilize a "grand jury indictment" process in which a designated group of citizens decides whether, based on the government's evidence, the case should proceed to trial. Last but not least, the possibility always exists that any time prior to the preliminary hearing a criminal case will be resolved through a plea bargain between the government and the defendant. As to this last option, the prosecution may offer its most favorable plea offers prior to a preliminary hearing, since they have invested little effort in the case early in prosecution, and if the preliminary hearing goes very well for them they may be unwilling to offer a plea at all. On the other hand, if the hearing goes poorly for them you may be able to negotiate better terms, or have the case dismissed altogether. As such, the timing of negotiations and agreements around preliminary hearings should be carefully considered.

Meet With An Attorney About Your Preliminary Hearing

A preliminary hearing is an incredible opportunity to prevent a trial from happening in your case. That means you should make the strongest arguments that you can at that point to show the weaknesses of the case against you. The assistance of an experienced attorney can make an enormous difference in preparing and presenting your case. Get started today and call a criminal defense attorney near you.

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