A preliminary hearing occurs early on in a criminal case. At this hearing, the prosecutor needs to convince a judge that enough evidence exists to keep the case moving and make a defendant stand for trial. A preliminary hearing (also called a prelim) doesn’t decide a defendant’s guilt. Rather, it’s a judicial check on the prosecutor’s decision to criminally charge a defendant with a crime. The hearing also provides the defendant with a preview of the prosecution’s case.
This article will review the purpose and procedures regarding preliminary hearings in the criminal justice process.
What Is a Preliminary Hearing?
The purpose of the preliminary hearing is to protect defendants from defending against unfounded (bogus) charges. At a preliminary hearing, the prosecutor goes before a judge in open court to present evidence in support of the criminal charges. Unlike a verdict that requires proof beyond a reasonable doubt, here the prosecutor’s burden of proof is lower. The prosecutor must prove that probable cause—sufficient and reliable evidence—exists to believe that a crime was committed and the defendant committed it and should stand for trial. If the judge decides the prosecution met its burden and orders the case to go to trial, the defendant is said to be “bound over” for trial.
Do Preliminary Hearings Take Place in All Criminal Cases?
No. A criminal case might be (and many are) resolved before a preliminary hearing even takes place, such as when a defendant pleads guilty at one of the initial court appearances. A defendant may also waive (give up) the right to a preliminary hearing. Rules also vary among states—certain states only require preliminary hearings in felony cases or upon a defendant’s request.
Some states require prosecutors to present the evidence to a grand jury before charges may be filed. A grand jury is a group of 16 to 23 citizens who evaluate the evidence and charges and, essentially, take the place of the judge in a preliminary hearing. If the grand jury believes the charges are supported by the evidence, it votes to indict (in-DITE) the defendant, which formally begins the criminal case.
Some states give prosecutors the choice between seeking a grand jury indictment or filing charges that necessitate a preliminary hearing. When given the choice, prosecutors tend to favor grand juries. Unlike preliminary hearings, grand jury proceedings are secret—the defendant is not present and has no opportunity to listen to witness testimony or cross-examine them.
When Do Preliminary Hearings Take Place?
If a preliminary hearing takes place, it will typically be heard within a few weeks after a defendant has been arraigned and made aware of the pending criminal charges. Federal law, for instance, requires preliminary hearings take place 14 to 21 days following the defendant’s initial appearance. (18 U.S.C. § 3060 (2021).) State laws often have similar timelines.
For strategic reasons, defendants can choose to “waive time,” meaning they give up the right to have the hearing within the specified time frame. Delaying a preliminary hearing can be advantageous for a defendant because, as time goes on, the prosecution’s witnesses might become unavailable to testify or forget details.
What Happens at a Preliminary Hearing?
At the public hearing, the prosecution will usually present the least amount of evidence it believes is needed to establish probable cause in support of the criminal charges. Evidence might be in the form of witness testimony or physical evidence (like a knife). A defendant can also present evidence but often doesn’t. The burden here is on the prosecution.
Mini-trial. Prosecutors don’t want to show all their cards (hence presenting only a minimal amount of evidence), because the hearing is almost like a mini-trial. It gives the defense attorney a preview of the case and the strength of the evidence. The defense can also cross-examine any witnesses the prosecution has testify. Any information gained can be helpful in plea negotiations or developing a defense strategy for trial.
Outcome. At the conclusion of the preliminary hearing, the judge can let the case proceed to trial or reduce or dismiss the charges. A judge might reduce the charges from say a felony to misdemeanor if the evidence presented only supports a lower level of the charged offense. Dismissal of the charges doesn’t happen often, but it can. Upon dismissal, an in-custody defendant will be released (but the prosecutor can refile charges).
What Happens After the Preliminary Hearing?
If the prosecution meets its burden at the preliminary hearing, the judge will bind over the defendant for trial and may set future court dates, such as dates for pretrial motions. The judge may also review the defendant’s custody status at that time. Often defendants who are in custody (sitting in jail pending trial) will renew their request to be released on bail. Out-of-custody defendants (those out on bail or own recognizance release) often remain free on the same or modified release terms.
Depending on what information came to light at the preliminary hearing, the parties will often use what they learned to (re)assess their strategies in plea negotiations or at trial. Say a police officer's testimony at the preliminary hearing conflicted with some of the details in the arrest report. If the officer is the prosecution’s main witness, the defense attorney may be able to use these discrepancies to negotiate a better plea deal, given the prosecutor’s case now shows some weaknesses. The defense can use the information at trial to discredit the accuracy of the report and the officer’s credibility. On the flip side, if the prosecution’s case is solid, the prosecution could gain the upper hand in negotiations. If no plea deal is reached, the case proceeds to trial.
Talk to Your Attorney
The criminal justice process is complex and often overwhelming. If you're concerned about an upcoming preliminary hearing, talk to your attorney and ask questions. Having an understanding of the hearing can go a long way in helping your own defense.