A preliminary hearing is a hearing that occurs before a trial. It is commonly
known as “the trial before the trial.” During these hearings,
both the prosecutor and the defendant are present before a judge without
a jury. The judge listens to the two parties and decides whether there
is enough evidence for the case to go to trial. During this time, it is
mainly on the prosecution to present strong evidence to show that the
event can be classified as a crime and that the defendant was the one
to commit it.
Preliminary hearings are not mandatory. The defendant has the right to
waive the hearing. A preliminary hearing is also not the actual trial.
The judge does not decide the defendant’s guilt or innocence, but
rather if there is enough evidence for a trial.
What to Expect at a Preliminary Hearing
At the preliminary hearing, the judge resides over the court and listens
to both the prosecution and the defense. The prosecution generally presents
the evidence, bringing forth witnesses to testify. The defense then has
the opportunity to cross-examine the witnesses, question the evidence,
and generally try to weaken the prosecution’s argument so that the
case may be dismissed.
During the preliminary hearing, both evidence from the crime scene and
hearsay allowed. In set trials, judges will not accept hearsay.
The Difference Between Preliminary Hearings and a Trial
It is important to understand that a preliminary hearing is not the same
as a trial. Often, most preliminary hearings do not make it to a trial.
The general differences are:
- Preliminary hearings are generally shorter than trials. Common hearings
last between half an hour to two hours.
- There is no jury present during a hearing, like there is at a trial.
- The prosecution does not need as much extensive proof to justify each claim.
They can work with the “probable cause” standard that allows
for there to be enough proof presented to move to a trial.
- Trials and preliminary hearings have different objectives. A hearing is
used to determine whether a case has enough to move on to a trial. A trial
is designed to establish the guilt or innocence of the defendant.
Why Preliminary Hearings Might Be Useful for the Defense
Preliminary hearings can be very useful for the defense in scoping the
prosecution’s argument. The defense can get insight into how strong
the prosecutor’s evidence and witnesses are. If the prosecution’s
case seems weak, it might be a good idea to push for a trial. Alternatively,
if the prosecutor’s case is strong, and the defense knows it is
not likely to win against them, it might be a good idea for the defendant
to accept a plea bargain.
The defense can also use preliminary hearings as a good way to construct
their counter-arguments based on what evidence and testimonials the prosecution
presents. The defense can use their time for cross-examination to vigorously
question the witnesses and show weaknesses in the opposing party’s
case. Or, if trial seems like a good possibility, the defense can give
witnesses a false sense of security by gently questioning them during
the hearing and then getting aggressive during the actual trial.
At Chung & Ignacio, LLP, our attorneys are experienced in criminal
defense. If you or a loved one has been charged with a crime, call us today!