preliminary hearing

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A preliminary hearing, also called a “probable cause hearing,” is an adversarial proceeding conducted by a judge or magistrate (and not a jury) to determine if the prosecution has enough evidence to go to trial.The hearing is limited to the specific issue at hand, in which both sides present evidence and arguments regarding the disputed issue of fact or law. The judge does not give a verdict on whether the defendant is guilty.

The standard burden of proof for a preliminary hearing is probable cause. Probable cause is a reasonable belief that a crime may have been committed, which is a lesser standard than that of a full trial (beyond a reasonable doubt). The judge will dismiss the charges altogether if the judge determines the evidence against the defendant as not supported by probable cause (unconvincing or insufficient) to try them in court. Since inconclusive evidence leads to the dismissal of the case, defendants usually have a harder time winning in a preliminary hearing than at a full trial.

  • First, the judge examines whether there was probable cause to convince a reasonable person that the alleged crime actually took place and that the alleged act occurred within the jurisdiction of the current court.
  • Next, the judge looks into whether there is a reasonable belief that the defendant in question is the one who committed the alleged crime. 

A preliminary hearing is held soon after the arraignment (the very beginning of a criminal proceeding where the defendant is presented with the charges and then the defendant pleads guilty or not guilty). At the preliminary hearing, the defendant has the right to counsel. Both the prosecution and the defendant may present witnesses to present evidence for their case. Similar to a full trial, both sides are given the opportunity to question and cross-examine the opposing side’s witness after the testimony.

A preliminary hearing is also an opportunity for the defense. For instance, the defense attorney can anticipate the prosecution’s arguments and the witnesses the prosecution intends to bring. Assessing the prosecution’s argument can provide the basis for a plea bargain negotiation or counter the testimonies made by the opposition’s witnesses. Furthermore, the defendant can always elect to waive a preliminary hearing.

The Federal Rule of Criminal Procedure 5.1 deals with the preliminary hearing procedure. The rule sets out the procedure for the district selection, scheduling, extension, hearing and finding,  discharging the defendant, recording of the proceeding, and producing of the statement. For example, the preliminary hearing must occur within a reasonable time after the initial appearance, save some exceptions (e.g., the defendant waives the preliminary hearing).

See: Federal Rule of Criminal Procedure Rule 5.1, U.S. DOJ - Preliminary Hearing, NY Criminal Court Proceedings, NY CPL § 180.60 (2022)People v. Jones (2021)

[Last updated in January of 2024 by the Wex Definitions Team]