What is a Preliminary Hearing?

Toni Henthorn

In court, an evidentiary or preliminary hearing is a legal proceeding in which the prosecutor of a criminal case outlines the evidence warranting the arrest of the defendant. The purpose of the hearing is to prevent a long detainment of a defendant if the charges are unfounded. In the preliminary hearing, the prosecutor must prove that a crime occurred within the jurisdiction of the court and that there is enough evidence to suggest to a reasonable person that the defendant committed the crime. The law entitles any defendant charged with a felony or some misdemeanors to a preliminary hearing. Even when the defendant has secured his release on bond, he should request a hearing in order to find out what evidence the prosecutor has against him.

Evidence that warrants the arrest of a suspect is presented in a preliminary hearing.
Evidence that warrants the arrest of a suspect is presented in a preliminary hearing.

Although defendants have the right to preliminary hearings, the privilege is waived if the prosecutor secures a grand jury indictment first. Many prosecutors will strategically hurry to present the case before a grand jury to avoid the preliminary hearing. In some cases, a prosecutor may even convene a grand jury before an arrest takes place. Prevention of a preliminary hearing precludes the defense counsel from gathering evidence and building the defense case using the information the prosecutor presents.

In a preliminary hearing, a grand jury deliberates on whether there is enough credible evidence to try the case in court.
In a preliminary hearing, a grand jury deliberates on whether there is enough credible evidence to try the case in court.

A grand jury is a group of impartial citizens larger than a standard jury that reviews the evidence of the prosecutor to determine whether there is enough evidence for a trial. Grand jury proceedings are confidential, conducted without the judge, defendant, and defense counsel present. Members of a grand jury will submit a “true bill” if the case has merit, or “no true bill” if they believe the prosecutor lacks the appropriate evidence to move forward with the case. Grand jurors come from the standard jury pool and serve for a specified period.

A preliminary hearing might be used to determine which kinds of evidence will be used during a trial.
A preliminary hearing might be used to determine which kinds of evidence will be used during a trial.

In a preliminary hearing, hearsay evidence is admissible. Hearsay is the information presented by a witness who did not personally hear or see the event about which he is testifying. For example, an arresting officer can discuss what bank customers saw and experienced during the course of a bank robbery, even though the officer was not present during the crime. Judges may find probable cause for an arrest just using hearsay evidence.

Hearsay evidence is allowed in a preliminary hearing, and may be compelling enough for a judge to allow a person to be arrested.
Hearsay evidence is allowed in a preliminary hearing, and may be compelling enough for a judge to allow a person to be arrested.

If the prosecutor fails to establish probable cause in a preliminary hearing, the state must discharge the defendant from jail or the terms of his bond. The prosecutor must dismiss the charges. Double jeopardy, however, does not attach to the case. If the prosecutor obtains more evidence or secures a grand jury indictment, the defendant can face the same charges for the same crime again.

In some cases, a prosecutor may convene a grand jury before an arrest is made.
In some cases, a prosecutor may convene a grand jury before an arrest is made.
A preliminary hearing may be used to determine the motive behind an assault.
A preliminary hearing may be used to determine the motive behind an assault.

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