The Preliminary Hearing Process
The preliminary hearing is when the judge decides if there is probable cause to make you stand trial for the crime in which you are charged. Also referred to as preliminary examination or probable cause hearing, this is when the judge looks at the evidence presented by the prosecution to see if a crime has been committed and if you committed it. This is not when your guilt or innocence is decided, but if the court decides there is enough evidence to proceed with charging you.If so, then the court will retain jurisdiction over you until the case is settled or goes to trial.
Preliminary hearing — Your criminal lawyer can protect you by:
- Using this time to find out more about the prosecutions case
- Making sure charges be dismissed if there is not enough evidence
- Making sure if there is evidence of a lesser crime that you are charged only with that crime
You may or may not have a preliminary hearing depending on:
- How things are handled in your state (New York has preliminary hearings)
- Whether the prosecutor will request a grand jury proceeding and obtain an indictment, which eliminates the need for a preliminary hearing
What the preliminary hearing determines is whether probable cause exists. It is more or less a preview of what the trial will be like should the case go that far. The prosecution is first to presents their witnesses and other evidence to the court. What they are attempting is to prove there is probable cause to hold you for trial. Preliminary hearings are held in front of a judge only (no jury) and can usually take anywhere from a few minutes to a few hours.
Most of the time the defense does not present evidence at the preliminary hearing. Judges tend to favor the prosecution (the burden of proof is very low in a preliminary hearing) so presenting evidence might give the prosecutor an idea of what the defense strategy will be.
Grand Jury Proceedings
The grand jury is a group of 15-23 people (16-23 in federal courts) that are selected to decide if there is probable cause to indict a person for a specific crimes or crimes. The proceeding are secret and usually held without the suspect or defense lawyer present. During the grand jury proceeding, the prosecutor presents the charges to the grand jury and (similar to the preliminary hearing) they usually only hear the prosecutors side of the story.They usually indict since they do not hear from the defendant or get the other side of the story at this point.
