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What Is a Preliminary Hearing?
(Definition & Advantages to Know About)

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Collen Clark Published by Collen Clark

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Preliminary hearings, or 'prelims,' are often dubbed mini-trials as they offer a glimpse into an impending criminal case. These hearings have a far different goal than trials and take place much earlier in the justice system's proceedings.

Leveraging my 10 years of legal experience, I have helped represent defendants through numerous preliminary hearings. 

This article will give you invaluable insight into what happens during these preliminary hearings.

Quick Summary

  • The approaches used by attorneys to cross-examine prosecution witnesses during a preliminary hearing will vary depending on each witness, their lawyer, and the context of their case.
  • If the judge finds that the evidence presented is insufficient to show probable cause for a commission of an offense, they will dismiss any charges against the defendant.
  • It can be hard to anticipate the details of a preliminary hearing as each case presents unique circumstances.

What is a Preliminary Hearing?

A judge reading out a verdict from a preliminary hearingA preliminary hearing is a meeting that happens during an earlier stage in the criminal justice process before a criminal trial.

It is also called a probable cause hearing because this is the meeting where the judge decides if there is enough physical evidence to make the person go to trial [1].

In a preliminary hearing, the judge examines all physical evidence presented by the government and applies the legal standard of "probable cause," concluding whether there is sufficient proof to persuade a jury that the defendant committed an offense.

Probable cause represents the presence of a reasonable argument for prosecuting an individual, whereas "beyond a reasonable doubt" is needed to secure a conviction.

Therefore, succeeding at preliminary hearings may be more complicated than winning in court; however, any positive outcome can lead to criminal charges being dismissed.

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What to Expect in a Preliminary Hearing?

A judge reading a verdict for a preliminary hearingIt is difficult to know what to expect in a preliminary hearing because it differs from one case to another. 

Before the commencement of your preliminary hearing, you will have a chance to converse with the police officer and a district attorney from District Attorney's office. 

The Magistrate Judge then examines whether there is probable cause to believe that a crime was perpetrated and by whom it was done to confirm their identity standing before them in court.

However, here is a breakdown of what usually happens:

  1. Initially, the judge hears arguments from both the prosecutor and the defendant's counsel. The former might conduct a live witness testimony or introduce tangible evidence to prove their case should go on trial.
  2. The defense will often question the government's witnesses and challenge any other evidence introduced against the defendant, hoping to persuade the judge that there is not enough evidence so they can have the case dismissed before it goes to trial.

When a "not guilty" plea is entered, not all criminal cases require a preliminary hearing. Depending on your state, preliminary hearings may be conducted only for felony charges or replaced with grand jury proceedings.

Therefore, timing is critical regarding negotiations and reaching agreements regarding preliminary hearings.

Depending on how well the initial hearing or preliminary arraignment goes for them, criminal defense attorneys may be able to negotiate better terms or even have the case dismissed entirely.

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The Advantages of a Preliminary Hearing

A lawyer reading the advantages on a preliminary hearing

You can gain many advantages from attending a preliminary hearing:

  1. It allows the accused and their defense counsel to review the evidence that prosecutors have against them. 
  2. It also allows for negotiation, which may result in the case being dismissed before it goes to trial.
  3. It enables defendants and their defense team to gauge how strong or weak the prosecutor's evidence is. 

Should the judge not believe that there is sufficient evidence to support probable cause for convicting the defendant, they will dismiss all charges.

A Preliminary Hearing has a particular objective: to determine if an alleged crime occurred and whether the defendant committed those crimes. This is relatively straightforward; they must have a prima facie or probable cause to believe that the defendant committed.

Related Article: Can Charges Be Dropped at an Arraignment?

Tactics Used to Cross-Examine Witnesses at the Preliminary Hearing

A lawyer writing down and researching tactics for cross examining

The tactics used to cross-examine witnesses at the preliminary hearing will differ based on the witness, lawyer, and case.

Although a thorough cross-examination of the prosecution's witnesses can be highly beneficial, another potential defense strategy is to briefly and respectfully query them.

This serves two essential purposes:

  • Initially, a witness may feel soothed and put at ease by the prosecutor's questioning - leading them to unintentionally confess incriminating evidence during the interrogation or when their criminal defense lawyers unexpectedly get confrontational in court.
  • Secondly, the defense may present evidence that damages the witness's integrity during trial proceedings. Since this material was not provided at the preliminary hearing, it will be unexpected for them to encounter it in court, which can cause disorientation making them appear incompetent to jury members during a jury trial.

"After a preliminary hearing, prosecutors and defense attorneys sometimes agree to "submit the case on the record." When this happens, a judge (not a jury) will review the preliminary hearing transcript to determine the defendant's guilt."
- Paul Bergman, UCLA Law School Professor

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What Happens After the Preliminary Hearing?

After the preliminary hearing occurs in front of a court magistrate, and upon a determination by the magistrate that enough evidence exists to proceed with a trial, your case will be transferred to the Court of Common Pleas for criminal proceedings.

What Is the Difference Between a Preliminary Hearing and a Trial?

The difference between a preliminary hearing and a trial is the length, jury attendance, burden of proof, and purpose or goal. Preliminary hearings are far shorter than trials, and no jury is present. During the hearing, it's up to the prosecution to prove probable cause is warranted.

What Rights Does the Defendant Have During a Preliminary Hearing?

The rights the defendant has during a preliminary hearing are the right to be represented by counsel, the right to confront witnesses against the defendant through cross-examination, the right to remain silent, the right to record the proceedings, and the right to testify in one's defense.

What Is a Not a Preliminary Hearing?

A preliminary hearing is not a trial. At a Preliminary Hearing, the court will not establish guilt or innocence; instead, it will only decide whether the prosecution’s evidence is enough to bring the case forward for trial.

Talk To A Defense Attorney

When you have a top-tier lawyer in your corner, it makes an immense difference in the preparation and presentation of your case. 

Get a free consultation session at Schmidt & Clark, LLP today to discuss your rights and options. Their experienced attorneys have the knowledge and resources to help you prepare for a preliminary hearing and protect your rights in court.