What is a Preliminary Hearing? And what do I need to know about it?

Written by Tana M. Fye

If a person is charged with a felony, one of the very first hearings that will be scheduled is called a preliminary hearing. This type of hearing is not scheduled in cases where a person is only charged with misdemeanors, so people are often confused about what exactly happens at the preliminary hearing.  

A preliminary hearing is a hearing where the State (through the County Attorney or the Attorney General) has to show (1) that there is probable cause to believe that what was charged actually happened, and (2) that the person charged is the person who committed that act. Probable cause is the standard. And probable cause is a much lower standard than reasonable doubt, the standard used at trial. Consequently, it is much easier for the State to show probable cause and win at the preliminary hearing than it is to prove the case beyond a reasonable doubt and win at the trial.

A defendant (the person charged with the crime) has two options as it relates to the preliminary hearing. One option is to have the preliminary hearing, where the State would try to prove up the two items discussed above. The second option that a defendant has is to waive his/her right to preliminary hearing. This waiver can happen either in the courtroom, or using a document called a Waiver of Right to Preliminary Hearing. Both essentially accomplish the same thing, giving up the ability to challenge probable cause. 

There are several reasons that a person may want to waive his/her right to a preliminary hearing. They include (but aren't limited to): the ability to screen for drug court, to curry favor with the prosecutor to try to get a more favorable plea offer, to obtain discovery or reports more quickly, because the judge has already found probable cause, because a better strategy may be to file suppression motions than to waste time on a preliminary hearing. 

There are several reasons that a person may want to have his/her preliminary hearing. They may include: putting witnesses or a law enforcement officer on the record, because the Probable Cause Affidavit left out key information that may show that there is not probable cause.

In any event, if you are charged with a felony, you should seek the advice of a competent criminal defense attorney who can evaluate your particular case and circumstances and arrive at the best strategy for you. No two cases are the same, and each requires individual attention and discussion with a criminal defense attorney.