Preliminary Hearing vs. Trial

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 Preliminary Hearing vs. Trial

When charged with a crime, the defendant must go through many steps in the criminal legal system.

A preliminary hearing is required before a trial can take place.

A preliminary hearing is sometimes called a mini-trial since it provides an overview of a criminal case. However, preliminary hearings (or prelims) occur much earlier in the criminal justice process than trials. In a preliminary hearing, the prosecutor must convince the judge that probable cause exists to believe the defendant committed the crime and that further proceedings, such as a trial, are necessary.

How the Preliminary Hearing Differs From the Trial

The purpose of preliminary hearings is to protect the defendant from unfounded criminal charges and to make sure that the prosecutor has sufficient evidence to proceed with a trial.

The two differ in several key ways:

  • Duration: A preliminary hearing is much shorter than a trial. The duration of a preliminary hearing can range from a few minutes to a couple of hours. It can take weeks for a trial to be completed.
  • Audience: A preliminary hearing is only heard in front of a judge, while a trial has the option of having a jury decide on the outcome.
  • The burden of proof: The burden of proof always lies on the prosecution to prove guilt. Nevertheless, the burden of proof is much lower at the preliminary hearing level, where the prosecution only needs to prove probable cause that the defendant committed the crime. On the trial level, the prosecution must prove beyond a reasonable doubt that the defendant committed the crime.
  • Goal: A preliminary hearing is used to determine whether the charges are worth pursuing, while a trial is used to determine the defendant’s guilt. Unofficially, however, each side utilizes the preliminary hearing to examine the other party’s evidence. As a matter of course, neither the defense nor the prosecution tends to present a lot of evidence. Since the defense doesn’t have to present any evidence, it often doesn’t.

Preliminary Hearing as a Substitute

Preliminary hearings are assessments of the case by the judge. The judge will make a preliminary decision regarding the defendant’s guilt or innocence. In most cases, the prosecution has the easier case since they only need to prove probable cause that the defendant committed the crime.

Nevertheless, if the defendant proves innocent, he won’t need to undergo a lengthy and expensive trial process.

When the charges are weak but the prosecutor’s office does not want to dismiss charges outright, a prosecutor could agree to submit on the record. The prosecutor can deflect criticism from upset victims or police officers to the judge if the case is dismissed.

In essence, a case submitted on record favors the prosecution rather than the defense. If the defense submits on the record, it can move the case to an appellate court more quickly or simply offer an out to a defendant whose case is hopeless but does not wish to plead guilty or nolo contendere. It is only possible for defense attorneys to submit on the record if the defendant waives trial.

Preliminary Hearing Benefits

Although preliminary hearings are very brief, they can give insight into the prosecution’s strategy. As a result, the defense can evaluate how strong the case is and whether there are any credible witnesses and evidence. This information is very important because it can help the defendant to decide whether they should settle the case with a plea bargain or proceed with a full trial.

In spite of the fact that the defense doesn’t anticipate to see all the prosecution’s cards, the preliminary hearing could give the defense a glimpse of:

  • The strength of the prosecution’s evidence
  • The credibility of the prosecution’s witnesses, and
  • If the case goes to trial, how credible those witnesses might be.

The defense evaluates the strength of the government’s case as a whole. The defense may need such information, regardless of whether the case is settled in a plea bargain or goes to trial.

The defense may decide to proceed to trial if the prosecution’s case seems weak – for example, if prosecution witnesses change their earlier stories, forget important details, or otherwise discredit themselves. On the other hand, the prosecution may decide to offer a generous deal or at least gain leverage to do so.

Assume the arresting officer is the only or main witness for the state. The prosecutor may be willing to offer a much better deal after the preliminary hearing if the defendant finds a way to undermine the arresting officer’s credibility.

This information may, however, assist the defense in deciding whether to accept a plea bargain if the government’s case appears very strong. A plea deal might not be what the defense had hoped for, but the preliminary hearing might show it’s better than wasting more energy and money fighting a losing battle. Over 90% of cases end before trial, so finding evidence to use in plea bargaining is a primary defense objective at the preliminary hearing.

Cross-Examination Strategies for Preliminary Hearing Witnesses

If the case does go to trial, the information gathered at the preliminary hearing will also be helpful to the defense. It is usually the case that the defense will vigorously cross-examine prosecution witnesses in the preliminary hearing, regardless of whether it presents its own witnesses.

During cross-examination, the defense can determine how the prosecution witnesses will perform and what their testimony will be at trial. The preliminary hearing testimony can be utilized to attack or impeach their credibility if they change their testimony at trial.

The alternative defense strategy to a vigorous cross-examination of prosecution witnesses is to cross-examine the witnesses very briefly and politely.

The purpose of this is twofold:

  • The first is that it may relax and lull a witness into confessing damaging evidence, either immediately upon hearing it or later, after the defense attorney becomes aggressive during the trial.
  • In addition, the defense might save evidence that hurts the witness’s credibility and use it against the witness at trial. The witness may not have anticipated this evidence at the preliminary hearing, and the surprise may fluster the witness and make them look bad in the jury’s eyes.

Preliminary Hearing Motions for Bail

A bail reduction may be requested if the defendant cannot make bail. Judges are often moved to reduce bail when the state requests a continuance, regardless of whether the case is continued or the charges are held for court. It is also possible for cases to be dismissed at the preliminary level if witnesses fail to appear.

The defendant should be set free on the same day if the court dismisses the case.

In some cases, the state may obtain an arrest warrant for their witnesses so that the police can forcefully bring them to court after the case has been dismissed. Prosecutions at this lower level are limited in their ability to endlessly re-file cases, but it is clear that they can do so at least once and sometimes twice.

Getting Legal Advice

If you find yourself in some legal trouble, please contact a criminal defense lawyer as soon as possible. Attorneys must make many tactical decisions, but the more you understand, the better you can defend yourself. Your lawyer will be able to see a fuller picture of your case if you become involved early on.


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