Jaime Halscott

Jaime Halscott

An Understanding of the Preliminary Criminal Hearing Procedures and Processes


You might be familiar with the term preliminary hearing. However, do you know the processes and procedures involved? It is important to understand what your prerogatives are as stipulated by the law. Additionally, it is imperative to be knowledgeable about the procedures that take place within the walls of the court. In a felony case, a criminal complaint or arrest is not adequate to warrant a defendant to standing trial. Therefore, the court conducts a grand jury proceeding or preliminary hearing shortly after an arraignment. The state attempts to present enough evidence that will establish "probable cause" to believe that the crime was committed by the defendant. A defendant cannot stand trial unless the prosecutor presents sufficient evidence to charge him or her with the felony.
During the preliminary hearing, a judge looks at the state's evidence and makes a decision on whether the evidence presented is sufficient for the defendant to stand trial. As much as the defense is not obligated to testify, it may do so to rebut the allegations being made against the accused. In case the evidence is found to be insufficient in establishing probable cause, the judge dismisses the charges.


As an alternative to preliminary hearings, some states use a grand jury proceeding. The prosecutor's evidence is presented to a grand jury, which comprises of members of the public. A judge is absent. The grand jury reviews the evidence following probable cause standards and decides whether the evidence is sufficient. If probable cause is established, an indictment is issued by the state against the defendant. He or she, therefore, must stand trial for the crime.


When Do Preliminary Hearings Occur?
Now that we are aware of what preliminary hearing means, it is important to know when it should occur. Delays have implications in a case. After the arrest of a defendant, a preliminary hearing must take place within a certain duration of time. Failure to do this, the defendant will be released from custody according to the United States Constitution as well as state constitutions. For a defendant to continue being held in custody by the court, a preliminary hearing must be conducted within the number of days prescribed by state law and a formal charging instrument, also known as "criminal information" must be issued.
When a defendant is released on "own recognize" ("OR") or bail, the preliminary hearing can be conducted at a later time. However, it must take place within a reasonable period since an unreasonable delay will violate the defendant's sixth amendment right to a fast trial. When defendants are arrested or charged in criminal complaints and the court or prosecutor's office does not schedule the preliminary hearings for months or even years later, the cases can be dismissed due to the delays. In such a situation, a judge will review the delay circumstances and determine whether the delay was unreasonable, and violated a defendant's right to fast trial.


What Happens During Preliminary Hearings?
You can think of a preliminary hearing as a mini-trial and is quite correct as the prosecution can call a witness to testify and present records and documented or physical evidence to implicate the defendant committed the crime. However, preliminary hearings are usually not as exhaustive as criminal trials; the prosecution will most likely not present all its evidence, it will offer only what is enough to establish probable cause.
Rules that surround what kind of proof is presented are more relaxed compared to those applied in a trial. For example, hearsay may be permitted where a police officer can be allowed to testify what a witness told him and the prosecutor will not be obliged to have the witness testify at the hearing. However, it is important for you to remember that the way a court conducts preliminary hearings and what occurs during the proceedings varies from one state to another depending on a state's laws and constitution.


Right to Counsel
We had earlier agreed that preliminary hearings can be thought of as mini-trials; therefore, a defendant should be entitled to an attorney just like in ordinary trials. If a defendant requests for a lawyer, the hearing can only proceed when the defendant appoints a private counsel or attorney to represent him or her. Having a defense attorney is advantageous since he can advise the defendant of his rights, present evidence, and make arguments to show that the evidence brought forth by the prosecutor is not adequate to support any formal charges.


Is It Advisable for the Defense to Present Evidence and The Defendant to Testify during the Preliminary Hearing?
After the establishment that a defendant has a right to counsel, it is the right time to expound on whether or not a defendant should testify. Can the defense present evidence? The answer to these issues rests entirely on the accused and his attorney depending on their individual case. There are cases where it is best for the defense to say petite and let the prosecution present their evidence. In other instances, the defense may have compelling evidence that shows the defendant did not commit the crime and substantial evidence that can establish an alibi. An example is an alibi that displays the defendant was in another country or state during the time the crime was committed.
There are cases where a defendant and the defense attorney may agree that testifying at the preliminary hearing may be best. For instance, in a case involving self-defense, the defendant may be a credible witness. The decision on whether the accused should take the stand is tough, defendants should never testify at preliminary hearings without consulting with an attorney.


Plea before the Preliminary Hearing
Always contact an attorney immediately you are arrested or receive a notice that you will be charged. Knowledgeable attorneys protect the rights of their clients and keep them informed throughout the preliminary process. Additionally, there are cases where you can negotiate a plea with the prosecutor before a hearing. An attorney will investigate this possibility for you and give you advice on whether or not it is a good option.