Preliminary Hearing Lawyers

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 What Is a Preliminary Hearing?

A preliminary hearing is a legal proceeding used in some states where the judge decides whether there is probable cause that the defendant has committed the crime that they are charged with committing.

If the judge finds that probable cause exists, the defendant is held to answer for the charges, and the case moves to trial. However, if the judge finds no probable cause exists, the charges are dismissed.

What Is a Probable Cause Hearing?

A probable cause preliminary hearing is one element of the pre-trial stage of a criminal case. The hearing is usually referred to as a “preliminary hearing” or a “probable cause hearing.” The hearing is held to resolve whether probable cause exists to conclude that a crime was committed and the defendant was the perpetrator. It is a defense for criminal defendants in that it demands the prosecution to deliver adequate proof to show probable cause for the criminal case to go forward to trial.

One definition of probable cause is “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true.”

Each state has its own rules regarding preliminary hearings, but if the defendant is in custody, it must be held within 30 days of the arraignment. If the defendant has pleaded guilty or no contest at the arraignment, there is no need for a preliminary hearing, and it would not take place. If the defendant is not in custody, the preliminary hearing might not take place for 60 or 90 days after arraignment.

When Is a Probable Cause Hearing Necessary?

Whether a probable cause hearing takes place depends partly on the law of the state in which the case is located. In most states, defendants who have been charged with felony offenses have the freedom of a probable cause hearing. Defendants can also waive a probable cause hearing, indicating to the prosecution that they do not want the hearing to happen.

Those charged with misdemeanors do not have the same privilege of a probable cause hearing.
Some states hold preliminary hearings in every severe case, while others will hold the hearings when the defense requests them. Other states may only hold probable cause hearings in felony cases but not misdemeanor cases.

A person should consult with a qualified criminal defense lawyer to make sure that they safeguard their rights concerning a probable cause hearing. A defendant would want the advice of an experienced criminal defense lawyer before deciding whether to waive their right to a preliminary hearing or whether they should request one.

What Is A Felony Crime?

There are two classes of crimes: misdemeanors and felonies. Misdemeanors are considered more minor crimes that are punishable by up to one year in county jail, not a federal prison facility. Alternatively, felonies are deemed more serious crimes that are generally punishable by imprisonment in a federal prison facility for more than one year.

Generally speaking, there are crimes against property and crimes against a person. Crimes against property involve crimes that are directed at someone’s house, as well as crimes against personal property. In comparison, crimes against the person involve bodily harm or injury to another individual.

Some of the most typical examples of felony crimes against property include, but may not be limited to:

  • Burglary: Burglary is defined as the unauthorized breaking into another’s home or other structure with the intent to commit a felony crime, such as rape;
  • Arson: Arson happens when the defendant maliciously burns or chars property, such as a house or office building. A defendant can commit arson to the property of another person or their property;
  • Embezzlement: Embezzlement is the fraudulent conversion (or stealing) of another’s personal property by a person in lawful possession of the property. Embezzlement generally happens when a person, who has been entrusted to another individual’s property, takes that property for their own use. The most typical example of embezzlement would be an employee stealing money from the business they work for;
  • Larceny: Larceny happens when the defendant unlawfully takes another individual’s property. It is essential to mention that the defendant must intend to permanently deprive the other individual of their property for the crime to be considered larceny specifically. In some states, larceny is known as theft. If the value of what is stolen is noteworthy, the defendant could be convicted of felony larceny. Stealing something of lesser or minimal value may be classified as a misdemeanor;
  • Robbery: Robbery consists of taking another’s property by using force or the threat of force. To put it more simply, robbery consists of larceny by force; or
  • False Pretenses: This is obtaining title to someone else’s personal property. This title is obtained by the defendant’s making an intentionally false statement intended to defraud the other individual.

Common examples of felony crimes against the person include, but may not be limited to:

  • False Imprisonment: This refers to the intentional limitation or restriction of the movement of another individual without their consent to do so. False imprisonment is deemed to be a felony crime if the individual who was falsely imprisoned is a minor or if force is used to commit the false imprisonment;
  • Kidnapping: Kidnapping consists of the carrying away, confinement, or detention of another individual against that individual’s will. Kidnapping differs from false imprisonment in that kidnapping involves the movement of another individual, while false imprisonment involves confining another person;
  • Murder: Very simply put, murder is the intentional killing of another individual;
  • Manslaughter: Manslaughter is defined as the killing of another individual without the intent to kill them.

What Occurs at a Preliminary Hearing?

The prosecutor presents evidence and witnesses that establish probable cause that the defendant committed the crime charged at a preliminary hearing. The defendant may cross-examine witnesses and may present their own evidence to demonstrate that there is no probable cause that he committed the crime.

Once the judge looks at all the evidence and listens to the arguments presented by both sides, the judge will then decide whether the defendant should be forced to stand trial.

Are There Preliminary Hearings for All Criminal Cases?

No. Most jurisdictions hold preliminary hearings only when the defendant is charged with a felony. Other jurisdictions use a grand jury indictment instead of a preliminary hearing. Some jurisdictions require a preliminary hearing and a grand jury indictment before the case will proceed. A preliminary hearing may also be waived.

What Are the Differences Between a Preliminary Hearing and a Trial?

Preliminary hearings are different from a trial in many different ways:

  • Preliminary hearings are much shorter and less time-consuming. The typical length of a preliminary hearing is only a few hours, while a trial can take weeks.
  • The preliminary hearing is decided by only a judge, where a judge or a jury may decide a trial.
  • The burden of proof on the prosecutor is much lower for a preliminary hearing than for a trial.
  • The primary objective of a preliminary hearing is to determine whether there is enough evidence to force the defendant to stand trial. In contrast, a trial is meant to decide the defendant’s guilt.

What Can I Do If I Have an Upcoming Preliminary Hearing?

Suppose you are accused of committing a crime or have an upcoming preliminary hearing. In that case, you should speak to a criminal lawyer immediately to learn more about your rights, your defenses, and the complicated legal system.


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