Preliminary Hearing

An early court hearing at which a judge decides whether there is enough evidence for a case to proceed - the defense's first real look at it.

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What it means

A preliminary hearing - called a preliminary examination or a probable cause hearing in some places - is a hearing in open court at which a judge decides whether the prosecution has enough evidence for the case to go forward. It is the alternative route to a grand jury indictment, and in the many states that use it, it is the first occasion on which the evidence is tested by anyone outside the prosecution.

What it is not is a trial. The judge is not deciding guilt, the standard is probable cause rather than proof beyond a reasonable doubt, and the prosecution need only put forward enough to clear that bar - which usually means a fraction of its evidence, often through a single officer. The defense may cross-examine and may in principle call evidence, but a defendant rarely testifies, because anything said is on the record for the rest of the case.

Its practical value to the defense is usually informational rather than dispositive. Cases are dismissed at this stage sometimes, and charges are reduced more often, but the reliable benefit is that a witness gives sworn testimony early, on a transcript, which can be used later if their account changes. That is also why the hearing is frequently waived: where the outcome is not in doubt and negotiations are under way, some defendants give it up, occasionally in exchange for something concrete. Waiving it is a decision with consequences that should be made on advice rather than by default.

Whether there is a preliminary hearing at all depends on the jurisdiction and often on the seriousness of the charge. Where a grand jury has already returned an indictment, there is generally no preliminary hearing, because the charging decision has been made; that is a common reason a hearing that had been scheduled does not occur.

Where this comes from

When people hire a lawyer for this

This is the hearing at which a defense lawyer learns what the case actually consists of, and that is worth more than the low probability of a dismissal. If there is a decision to make about waiving it, the question to ask is what is being received in return and whether the testimony being given up would have been useful later. Family and friends can help by attending and by noting who gave evidence and what was said; the transcript is the formal record but is not always obtained quickly, and knowing what to order matters.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• ArraignmentThe first court appearance in a criminal case, where the charges are read and a plea is entered.
• Bail and Pretrial ReleaseThe decision about whether someone stays in custody while their case is pending - which is about appearance and safety, not about guilt.
• Bench Warrant and Failure to AppearThe arrest warrant a judge issues from the bench when a defendant misses a court date or violates a court order - what it authorizes, the separate failure-to-appear charge and bond forfeiture that often follow, and how a person clears one by surrendering on their own terms rather than being picked up.
• Criminal RestitutionThe order, entered at sentencing, requiring a defendant to repay the victim's losses caused by the offense - what losses it covers, how it differs from a fine and from a civil judgment, the payment schedule and enforcement, and why it survives bankruptcy and the end of the sentence.
• Double JeopardyThe constitutional bar on being tried twice for the same offense after an acquittal or conviction, or punished twice for it - when jeopardy attaches, what counts as the "same offense", the mistrial and appeal exceptions, and why a state and the federal government may each prosecute the same act.
• Expungement and Record SealingCourt processes that erase or restrict access to a criminal record, available only in defined circumstances that vary by state.
• Felony and MisdemeanorThe basic division of criminal offenses by seriousness - which drives the procedure, the possible sentence, and the consequences that outlast it.
• Grand Jury and IndictmentA closed proceeding in which citizens decide whether there is enough evidence to charge someone - not whether they are guilty.
• Miranda RightsThe warning police must give before questioning someone in custody - and the reason a missing warning suppresses a statement rather than ending a case.
• Motion to Suppress (Exclusionary Rule)The pretrial request to keep evidence out of a criminal trial because it was obtained in violation of the Constitution - an unlawful search, an involuntary or un-warned confession, a suggestive identification - the hearing it triggers, the "fruit of the poisonous tree" rule, and the exceptions that let evidence in anyway.
• Plea BargainAn agreement resolving a criminal case by guilty plea, usually in exchange for reduced charges or a sentencing concession.
• Pretrial Diversion and Deferred AdjudicationThe programs that let an eligible defendant avoid a conviction by completing conditions - treatment, classes, community service, restitution - after which the charge is dismissed; the difference between diversion before a plea and deferred adjudication after one, and what each does to the record.
• Probable CauseThe level of justification the Fourth Amendment requires before police may arrest someone or search a place - more than a hunch, and less than proof.
• Probation and Parole ViolationWhat happens when someone under supervision is said to have broken its conditions - a proceeding with fewer protections than the trial that preceded it.
• Right to a Speedy TrialThe constitutional guarantee that a criminal case be brought to trial without unreasonable delay, and the statutes in the federal system and most states that put a clock on it - what starts the clock, what stops it, why a defendant's own motions extend it, and the remedy of dismissal when it runs out.
• Right to Counsel and the Public DefenderThe Sixth Amendment right to a lawyer in a criminal case, including one paid for by the state if the defendant cannot afford one.
• Search WarrantA judge's written authorization to search a specified place for specified things - and the exceptions that let police search without one are broad.
• Self-Defense and JustificationThe defense that a use of force was lawful because it was necessary to protect oneself or another from imminent unlawful force - the reasonableness and proportionality requirements, the duty-to-retreat and stand-your-ground split among the states, the castle doctrine, and who bears the burden once the defense is raised.
• Sentencing and EnhancementsHow a criminal sentence is decided after a plea or verdict - the statutory range, the guidelines or presumptive scheme the jurisdiction uses, the enhancements for prior convictions, weapons, victims and quantities that raise it, the presentence report, and the constitutional rule that any fact raising the maximum must be found by a jury.

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