What is a Preliminary Hearing?

According to Law Cornell, a preliminary hearing, also known as a “probable cause hearing,” is a legal proceeding held by a judge or magistrate to assess whether the prosecution’s evidence is sufficient to proceed to trial [1]. This hearing focuses on the issue at hand, with both parties presenting evidence and arguments on the disputed facts or legal points. Importantly, the judge does not decide the defendant’s guilt during this hearing.

The standard burden of proof for a preliminary hearing is probable cause. Probable cause is a reasonable belief that a crime may have been committed, which is a lesser standard than that of a full trial (beyond a reasonable doubt).

If the judge finds the evidence insufficient or unconvincing to support probable cause, the charges may be dismissed. Due to the lower burden of proof required, it can be more challenging for defendants to succeed in a preliminary hearing compared to a full trial.

When Does it Make Sense to Waive a Preliminary Hearing?

According to Nolo, a defendant might choose to waive the right to a preliminary hearing for various strategic reasons [2]:

Avoid Publicity: The defendant intends to plead guilty and wants to avoid publicity (and expense, if the defendant is represented by private counsel).
Minimize Damage: The defendant, guilty of more than the current charges, may want to prevent additional charges that could arise from incriminating evidence presented at the hearing. Moreover, if the case details are particularly damaging, limiting the judge’s exposure to these facts could be beneficial for sentencing.
Hostile Witnesses: In cases where the prosecution’s evidence is strong, the defense might fear that witnesses will become more determined in their testimonies after speaking under oath, possibly refusing further cooperation with the defense.
Unavailable Witnesses: If the prosecution plans to use witnesses at the hearing who might not be available for the trial, waiving the hearing could prevent their testimony from being recorded and used later.
Stalling Tactics: The defense may aim to delay the trial in hopes that the prosecution’s witnesses might become unavailable, forget details, or get confused about the events, thereby weakening the prosecution’s case.

What are the Disadvantages of Waiving a Preliminary Hearing?

According to SCLG, preliminary hearings can offer significant advantages to defendants [3].

By choosing to waive a preliminary hearing, defendants might miss the opportunity to:

Uncover previously hidden defenses,
Identify witnesses who may perform poorly on the stand,
Demonstrate to the prosecutor that there are issues with key aspects of the case,\
Lay the groundwork for challenging the credibility of the prosecutor’s witnesses, and
Establish a foundation for plea bargaining.

Evidence that emerges that is helpful for the accused can convince the prosecutor a negotiated settlement is justified.

What Happens After a Preliminary Hearing?

Once a defendant is bound over for trial, the prosecutor typically files a separate document, often called “information,” to initiate further court proceedings.

Defendants released on bail usually remain free after the preliminary hearing but must appear at the next scheduled court date. In-custody defendants stay in jail until their next appearance, although they can request a bail review during the preliminary hearing. Bail decisions are always subject to review, and a judge might grant bail if the evidence presented at the hearing is less severe than initially reported by the police.

Depending on the jurisdiction and the crime’s severity, the case may proceed in one of the following ways:

The defendant might be arraigned again in a higher court if the state has a two-tier court system.
The case could move directly to plea negotiations or trial in the same court that held the preliminary hearing.
A judge may schedule a later date for a pretrial conference, the trial itself, or both.

Why Do Most Cases Plead Out Before Going to Trial?

At least 95% of cases are resolved through plea bargains because they provide a certain outcome, are less expensive, and require less time compared to trials. With a plea, the outcome is generally predictable, unlike a trial, which is public, highly stressful, and time-consuming, thus making it more costly due to the extensive time required from attorneys.

Trials carry many uncertainties, such as jury composition, and admissible evidence, and often result in harsher sentences if the defendant is found guilty. Consequently, most cases are settled out of court.

Complete dismissals are very rare. In state courts, charge reductions are sometimes possible, and in federal cases, the U.S. Attorney’s Office may agree to drop some counts if the defendant pleads to others. However, complete dismissals are far less common than diversionary agreements.

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References:
1. https://www.law.cornell.edu/wex/preliminary_hearing
2. https://www.nolo.com/legal-encyclopedia/when-does-sense-waive-the-preliminary-hearing.html
3. https://www.shouselaw.com/ca/blog/laws/what-are-the-advantages-and-disadvantages-of-waiving-a-preliminary-hearing/

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