Dayline
Breaking How arrest warrants work, from affidavit to arrest
News

At a preliminary hearing, a judge tests the case before trial

A preliminary hearing lets a judge decide whether the prosecution has enough evidence for a criminal case to keep moving.

Frankie Delgado

By Frankie Delgado · News Reporter

3 min read

A preliminary hearing is an early court check on the prosecution’s evidence, not a decision on guilt. In the federal process described by the U.S. Department of Justice, the judge decides whether there is probable cause to believe the defendant committed the crime.

The prosecutor may call witnesses and introduce evidence. The defense can cross-examine prosecution witnesses. Rules on which cases get a hearing, timing and evidence vary by federal and state court system.

What happens, step by step

  1. A judge presides. The judge makes the preliminary decision. California’s process, for example, uses a judge rather than a jury at this stage.
  2. The prosecution presents evidence. The DOJ says federal prosecutors may call witnesses and introduce evidence to show enough evidence exists to charge the defendant.
  3. The defense can cross-examine witnesses. The DOJ describes that right in federal hearings. A Pennsylvania source also says an accused person may cross-examine government witnesses who testify.
  4. The judge decides whether the required showing has been met. If federal probable cause is found, the case moves toward trial. If it is not, the DOJ says the judge dismisses the charges.

The threshold is lower than a trial

The federal DOJ uses probable cause: whether there is probable cause to believe the defendant committed the crime. That is different from a trial, where guilt is decided under the beyond-a-reasonable-doubt standard.

States may use different terms. In Pennsylvania, the described test is a prima facie case: enough evidence that a crime was committed and that the accused most likely committed it. In California, the issues include whether there is sufficient evidence a crime occurred and probable cause connecting the defendant to it.

Federal rules are an example, not a national script

Under the DOJ’s federal example, a preliminary hearing often follows a not-guilty plea. It is not required in every case, and a defendant can waive it. The hearing must be held within 14 days of the initial appearance for a defendant held in jail, or within 21 days for a defendant out on bail.

California’s procedure applies to felony prosecutions, according to a California law-firm source. It can include live testimony, evidentiary objections, court rulings and legal argument. Pennsylvania describes charges being held over to its Court of Common Pleas when the government meets its required showing.

What to check before the hearing

  • Your court notice: It identifies the court date and location.
  • The rules for that court: Deadlines, evidence rules and the availability of a hearing can differ by jurisdiction.
  • Local legal advice: A qualified lawyer in that jurisdiction can explain the procedure for the specific court and charge.

Frequently asked questions

Can charges be dismissed at a preliminary hearing?

Yes. In the federal process described by the Justice Department, the judge dismisses the charges if the evidence does not establish probable cause that the defendant committed the offense. Pennsylvania also describes dismissal for insufficient evidence.

Can a defendant waive a preliminary hearing?

Sometimes. The Justice Department says a federal defendant can waive the hearing. California and Pennsylvania sources also describe waiver in those state systems, but the rules depend on the jurisdiction.

Does a preliminary hearing decide guilt?

No. It addresses an early evidentiary threshold, such as probable cause in the federal process, rather than the beyond-a-reasonable-doubt standard used to establish guilt at trial.

Sources