Preliminary Hearing

Created by FindLaw's team of legal writers and editors.

A preliminary hearing is a proceeding that takes place before a criminal trial. Preliminary hearings are similar to arraignments, but there are key differences between the proceedings. Some important distinctions are that they serve different purposes and that preliminary hearings provide more opportunities 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 contrast, an arraignment is where the defendant may file their pleas.

For a preliminary hearing, the judge uses the "probable cause" legal standard, deciding whether the government has produced enough evidence to convince the jury that a crime was committed and that the defendant committed the alleged crime.

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. However, a success at this stage can result in charges being dropped.

What to Expect at the Preliminary Hearing

Without knowing much about preliminary hearings, it's difficult to know what to expect. First, the judge listens to arguments from the prosecutor and then from the defendant's 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 use a "grand jury indictment" process.

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. 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; if the preliminary hearing goes very well for them they may be unwilling to offer a plea at all. However, if the hearing goes poorly for them, the defense may be able to negotiate better terms, or have the case dismissed altogether. Thus, 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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