Preliminary hearing vs. judgment (2023)

whenloadedwith a crime, the accused must go through several stagescriminal legal system.

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

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

How a preliminary hearing differs from a trial

The purpose of preliminary hearings is to protect the defendant from unfounded criminal charges and to ensure that the prosecutor has sufficient evidence to proceed with the 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 vary from a few minutes to a few hours. A test can take weeks to complete.
  • Public: A preliminary hearing is heard only before a judge, while a trial has the possibility for a jury to decide the outcome.
  • the burden of proof: The burden of proof is always on the prosecution to prove guilt. However, the burden of proof is much less at the preliminary hearing level, where the prosecution only needs to prove probable cause that the accused committed the crime. At the trial level, the prosecution must prove beyond reasonable doubt that the accused committed the crime.
  • Target: A preliminary hearing is used to determine whether the charges are worth pursuing, while a trial is used to determine the defendant's guilt. Informally, however, each side uses the preliminary hearing to examine the other side's evidence. Naturally, neither the defense nor the prosecution tend to present much evidence. Since the defense does not need to present any evidence, it often does not.

Preliminary hearing as substitute

Preliminary hearings are assessments of the case by the judge. The judge will make a preliminary decision on the defendant's guilt or innocence. In most cases, the prosecution has the easiest case, as it only needs to prove probable cause that the defendant committed the crime.

However, if the accused is found not guilty, he will not have to go through a long and expensive trial.

(Video) What is a preliminary hearing? 🤔👩🏻‍⚖️⚖️🏛

When the charges are weak but the prosecutor's office does not want to drop the charges entirely, a prosecutor may agree to dismiss the case. The prosecutor can deflect criticism from victims or police officers to the judge if the case is dismissed.

Essentially, a recorded case favors the prosecution over the defense. If the defense is registered, it can move the case to an appellate court more quickly or simply offer a defendant whose case is lost but does not wish to plead guilty or nolo contendere. It is only possible for defense lawyers to file the case if the defendant withdraws from the trial.

Benefits of Preliminary Hearing

Although preliminary hearings are very short, they can inform the prosecution's strategy. As a result, the defense can assess how strong the case is and whether there are credible witnesses and evidence. This information is very important because it can help the defendant decide whether to settle the case with ajudicial agreementor proceed to a full test.

While the defense does not expect to see all of the prosecution's files, the preliminary hearing can give the defense a glimpse of:

  • The strength of the prosecution's evidence
  • The credibility of prosecution witnesses and
  • If the case goes to trial, how credible can these witnesses be?

The defense assesses the strength of the government's case as a whole. The defense may need this information regardless of whether the case settles with a plea agreement or goes to trial.

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

(Video) What Does a Judge Look For in a Preliminary Hearing?

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

This information can, however, help the defense decide whether to accept a plea deal if the government's case appears too strong. A plea deal may not be what the defense hoped for, but the preliminary hearing may show that it's better than wasting more energy and money on a losing battle. More than 90% of cases are resolved before trial, so finding evidence to use in the plea deal is the primary goal of the defense at the preliminary hearing.

Interrogation Strategies for Preliminary Hearing Witnesses

If the case goes to trial, the information gathered at the preliminary hearing will also be useful for the defense. Typically, the defense will vigorously cross-examine the prosecution's witnesses at the preliminary hearing, whether or not it presents its own witnesses.

In cross-examination, the defense can determine how the prosecution's witnesses will behave and what their testimony will be at trial. Preliminary hearing testimony can be used to attack or impair their credibility if they change their testimony at trial.

The alternative defense strategy to vigorous cross-examination of prosecution witnesses is to question them briefly and politely.

The purpose of this is twofold:

(Video) Day 2 of preliminary hearing for Larry Millete continues in Downtown San Diego court

  • The first is that it can relax and discourage a witness from confessing to damaging evidence, either immediately after hearing it or later, after defense counsel becomes aggressive during the trial.
  • In addition, the defense may store evidence that undermines the witness's credibility and use it against the witness at trial. The witness may not have anticipated these elements at the preliminary hearing, and the surprise may unsettle him and make him look bad in the eyes of the jury.

Pre-trial bail requests

Bail reduction may be requested if the accused is unable to post bail. Judges are often asked to reduce bail when the state requests a continuation, regardless of whether the case continues or the charges go to trial. Cases can also be filed at the preliminary level if no witnesses appear.

The accused must be released on the same day if the court dismisses the case.

In some cases, the state can obtain an arrest warrant for its witnesses so that the police can forcibly take them to court after the case is closed. Processes at this lower level are limited in their ability to repeat cases indefinitely, but of course they can do so at least once and sometimes twice.

Getting Legal Advice

If you have legal problems, contact acriminal defense attorneyAs soon as possible. Lawyers have to make a lot of tactical decisions, but the more you understand, the better you can defend yourself. Your attorney will be able to get a more complete picture of your case if you get involved early.

your McDuffie

Legal Writer at LegalMatch

author update

Ty started working at LegalMatch in November 2021. Ty holds a BA in Professional Writing from Missouri State University with a minor in Economics. Ty received his Juris Doctor from the University of Missouri-Kansas School of Law in May 2021. Prior to joining LegalMatch, Ty worked as a paralegal and freelance writer. Ty is a native of Lake of the Ozarks, Missouri and currently resides in Kansas City.

(Video) What happens at a "preliminary hearing" in Colorado?
(Video) Pretrial Hearing: What to expect


What is the primary purpose of the preliminary hearing? ›

What is the purpose of a Preliminary Hearing? The purpose of a Preliminary Hearing is very limited. It is only held to determine whether or not a crime may have been committed and whether the defendant may have been involved in that crime.

What are the possible outcomes of a preliminary hearing of a lawsuit? ›

The most prevalent outcome of a preliminary hearing is that the judge finds probable cause to charge you. If so, then you will be held to answer for the charges and the matter is transferred within the next 15 days to trial court for all further proceedings10.

What happens at a preliminary hearing for a felony in Idaho? ›

A preliminary hearing is held only on felony cases and is conducted before a magistrate judge. At this hearing, the prosecuting attorney presents what evidence he/she may have to show that there is probable cause (reason) to believe that a crime has been committed and that the defendant committed the crime.

What is one difference between a preliminary hearing and a grand jury is in a preliminary hearing ______? ›

Differences Between Preliminary Hearings and Grand Juries‍

First, a person accused of a crime does not know about a grand jury hearing until after formal charges are brought, whereas the accused has the right to be present at a preliminary hearing.

Who decides if there is enough evidence to formally charge the accused? ›

The grand jury listens to the prosecutor and witnesses, and then votes in secret on whether they believe that enough evidence exists to charge the person with a crime. A grand jury may decide not to charge an individual based upon the evidence, no indictment would come from the grand jury.

What are the 4 types of sentencing? ›

Four major goals are usually attributed to the sentencing process: retribution, rehabilitation, deterrence, and incapacitation.

What type of things typically occur at the preliminary hearing? ›

The preliminary hearing is like a mini-trial. The prosecution will call witnesses and introduce evidence, and the defense can cross-examine witnesses.

What is the purpose of a preliminary hearing to determine the guilt of a defendant? ›

It is important to note that a Preliminary Hearing is not an actual trial. The Court will not determine the guilt or innocence of an individual at a Preliminary Hearing. The Court will only determine if there is sufficient evidence to hold a case for trial.

At which pretrial stage is a defendant asked to enter a formal plea of guilty or not guilty? ›

During an Arraignment, the accused, now called the defendant, is read the charges against him or her and advised of his or her rights. The defendant also enters a plea of guilty or not guilty.

How do I get a felony reduced to a misdemeanor in Idaho? ›

Pursuant to Idaho Code §19-2604, if you successfully completed your probation without issue and you can show good cause, you may have your case retroactively reduced from a felony to a misdemeanor. While this might not completely erase all record of the case, this is a very positive result for many people.

What happens at arraignment in Idaho? ›

Arraignment must be conducted in open court and consist of reading the indictment or information to the defendant or stating to the defendant the substance of the charge and requiring the defendant to plead to it. The defendant may waive the reading of the indictment or information.

What is the criminal rule 5.1 in Idaho? ›

(a) Preliminary Hearing.

Unless indicted by a grand jury, a defendant charged in a complaint with any felony is entitled to a preliminary hearing. If the defendant waives the preliminary hearing, the magistrate must immediately file a written order in the district court requiring the defendant to answer.

What are the most common pretrial motions? ›

Common pre-trial motions include:
  • Motion to Dismiss – an attempt to get the judge to dismiss a charge or the case. ...
  • Motion to Suppress – an attempt to keep certain statements or evidence from being introduced as evidence. ...
  • Motion for Change of Venue – may be made for various reasons including pre-trial publicity.

What is the purpose of a preliminary hearing and a grand jury? ›

In some places, instead of grand juries, or in addition to the grand jury, there is a preliminary hearings (sometimes called probable cause hearings) that both the defense and prosecution attend. The purpose is similar to the grand jury: to decide whether the prosecutor has enough proof to charge a person with a crime.

Why is a speedy trial important? ›

One of the main reasons for the right to a speedy trial is to prevent a defendant from being held in custody for a long time, only to eventually be found innocent. If the defendant is denied bail or cannot pay the bail amount, they will remain in jail until their trial date.

How much evidence is enough to convict someone? ›

Beyond a reasonable doubt.

Every state in the country has laws that make it clear a prosecutor must present enough evidence to show, beyond a reasonable doubt, that the defendant committed the crime they are accused of.

What happens if there is not enough evidence? ›

In a trial, if the prosecution finishes presenting their case and the judge finds they have not met their burden of proof, the judge may dismiss the case (even before the defense presents their side) for insufficient evidence.

What is evidence that is favorable to the accused called? ›

In criminal law, exculpatory evidence is evidence, such as a statement, tending to excuse, justify, or absolve the alleged fault or guilt of a defendant. In other words, the evidence is favorable to the defendant. In contrast to it, inculpatory evidence tends to stress guilt.

Do you go straight to jail after sentencing? ›

Whether you go straight to prison or jail after a conviction depends on your case. Sometimes, an officer may immediately put you in handcuffs in the courtroom. Other times, the court may release you until sentencing. Knowing when you will go to prison helps you prepare for when that time comes.

What is the most common sentence for a guilty defendant? ›

Probation, the most frequently used criminal sanction, is a sentence that an offender serves in the community in lieu of incarceration.

What factors does a judge consider when determining sentencing? ›

The judge may consider a variety of aggravating or mitigating factors. These include whether the defendant has committed the same crime before, whether the defendant has expressed regret for the crime, and the nature of the crime itself.

What is the primary purpose of the preliminary hearing quizlet? ›

What is a primary purpose of a preliminary hearing? to establish whether probable cause and is conducted before a lawyer-court judge and is in an open public place.

What is the purpose of a criminal preliminary hearing quizlet? ›

The main function of a preliminary hearing is to: determine whether there is probable cause to believe that the accused committed a crime within the jurisdiction of the court.

What is a preliminary hearing quizlet? ›

PRELIMINARY HEARING. IS A JUDICIAL PROCEEDING THAT OCCURS BETWEEN THE TIME OF A SUSPECT'S ARREST AND TRIAL. PURPOSE OF PRELIMINARY HEARING. 1- To determine whether probable cause for an arrest and detention exist. 2-to set bail or some other condition for pretrial release, or.

What is known as the first appearance before a judge? ›

Either the same day or the day after a defendant is arrested and charged, they are brought before a magistrate judge for an initial hearing on the case.


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