What You Need to Know About Preliminary Hearings

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!