What is a Preliminary Hearing? + Things to Know!

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A preliminary hearing is the first time in the entire criminal justice process that a case is heard. It is a critical hearing, not in the least because sometimes all charges can be dismissed at this point. The alternative is that the case gets “held for court”, meaning a trial will be started.

What Is the Preliminary Hearing?

In many cases and jurisdictions, a preliminary hearing is not held at all. Instead, an arraignment takes place. At an arraignment, there is far less opportunity for cases to be presented and arguments to be made. Many people refer to the preliminary hearing as a type of trial before the actual trial. This isn’t about determining guilt, but rather about whether sufficient evidence exists for the prosecution to argue probable cause.

Naturally, probable cause does not mean guilt. Guilt has to be beyond a reasonable doubt. Probable cause simply means that there is reason to consider a defendant has had involvement in a case. It is usually also much easier to prove than guilt.

What Happens at the Preliminary Hearing?

During the preliminary hearing, a judge will listen to the prosecution’s arguments and to the counter-arguments of the defense. Witnesses can be brought in, including evidence. Those witnesses are generally cross-examined by the defense, who will call them and other evidence into question. In so doing, they hope to have the case dismissed.

Will You Get a Preliminary Hearing?

Each state has its own rules and regulations on whether or not this type of hearing has to take place. Commonly, it is only done for felony charges. Other states still use the grand jury, where regular citizens determine whether or not a case should go to trial. At other times, the preliminary hearing (or grand jury hearing) does not take place because a plea bargain is reached.

However, just because not all jurisdictions use the preliminary hearing does not mean it isn’t an important step in the entire process. Indeed, it is the first instance that defendants can see their case dismissed altogether. However, it is often confusing for the defendant because it is so much like a trial, without it being a trial.

The Burden of Proof

During the preliminary hearing, the prosecution has to show that a crime took place, and that they have reason to believe the defendant is guilty. Evidence will be presented and witnesses heard and cross-examined. In the hearing, they try to determine what is known as “prima facie”. Should the prosecution not be able to do that, the defense will move to dismiss the case. At the same time, being able to show prima facie does not in any way mean that the defendant is guilty.

Hearsay Evidence

The way witnesses are presented and cross-examined at a preliminary hearing is different from the way it is done during the actual trial. One of the greatest differences is on how evidence rules are applied. In some states, hearsay evidence is permitted at a preliminary hearing, for instance, based on the argument that the prosecution believes they will be able to provide it as solid evidence at trial. Additionally, preliminary hearings are usually much shorter than trials, because the prosecution is only looking at proving there is probable cause. Hence, issues such as how someone was arrested, which are important defense tactics, are not put forward at all, since the question is not yet about guilt. Similarly, witness credibility is not up for discussion during a preliminary hearing.

Common Defenses Used During Preliminary Hearings

A preliminary hearing strongly favors the prosecution because these hearings are not about proving guilt. However, good defense attorneys will still try to have the case dismissed at this point. Usually, they will do so by arguing that not all the elements of the relevant statute have been proven, or that there is insufficient evidence. It is rare for the defense to call in witnesses, as this may harm their case overall as they don’t know what evidence exists yet due to not having access to the discovery yet.

Prosecutors will commonly overcharge the defendant as well. They do so commonly if the defendant has a record. It is quite common, therefore, to have at least some of the charges dismissed at the preliminary hearing.

If the Case Is Held for Court

At the preliminary hearing, a judge may determine that probable cause is present. This means that the case will be arraigned, although defendants can waive the right and go straight to trial. If they go to arraignment, the charges against them will be read out, and they will have a chance to plead either guilty or not guilty. Should they plead not guilty, the case will go to pre-trial. At this point, plea offers will be made and accepted or rejected and the discovery will be complete. If all plea bargains are rejected, the case will move to trial. This can take as long as a year.

Waiving Preliminary Hearings

It is possible to waive the preliminary hearing if so desired. However, this is generally not recommended. The exception is in cases that have been sent to drug court and whereby someone has already been approved for treatment, for instance. In some suburban areas, it is more common for people to waive this hearing, mainly because police officers and prosecutors will try to resolve the case in other ways. It is very important for defendants to have strong legal counsel from the start, therefore, so that they can determine whether or not waiving the preliminary hearing is a good idea. In the majority of cases whereby someone waives the preliminary hearing, it is because there is some informal agreement for a plea bargain in place.

Convictions at Preliminary Hearings

These hearings are not designed to establish guilt. Hence, the judge will also not make any sentencing at this point. A sentencing hearing is completely separate. That said, defendants could be taken into custody following the preliminary hearing, although this is rare. In fact, it should only happen if the prosecution moves to have bail increased or to have it revoked completely. This must be argued separately, however, and it is incredibly rare for the judge to agree to this.


  • Preliminary Hearing. (n.d.). Retrieved from http://criminal.findlaw.com/criminal-procedure/preliminary-hearing.html
  • All About Preliminary Hearings, or “Prelims”. (n.d.). Retrieved from https://www.nolo.com/legal-encyclopedia/all-about-preliminary-hearings-or-prelims.html
  • Tips you need to know to prepare for your preliminary hearing in Philadelphia County, Pennsylvania. (2012, November 29). Retrieved from https://www.avvo.com/legal-guides/ugc/tips-you-need-to-know-to-prepare-for-your-preliminary-hearing-in-philadelphia-county-pennsylvania