Preliminary Hearing

Preliminary Hearing in the United States

A proceeding conducted by a judicial officer of a lower court to determine whether an accused person should be bound over to a higher court for trial. A preliminary hearing, sometimes called a preliminary examination, is the first time a case is formally reviewed by an official outside the executive or enforcement branch of government. The purpose of a preliminary hearing is to determine whether the prosecutor can establish probable cause to believe that an accused committed a particular crime. This is also called establishing a prima facie case against the accused. A preliminary hearing is a step in the process that occurs only if the defendant wants it. If it is not waived, it follows the filing of an information by the prosecutor. Both the prosecution and defendant are able to call witnesses and introduce whatever other evidence they wish. Cross-examination of witnesses called by the other side is permissible. Otherwise, many of the rules of evidence that apply to trials do not apply to preliminary hearings. Unlike grand jury proceedings, preliminary hearings are open to the public and the defendant has a right to be present and represented by counsel. If a case against a defendant is dismissed at this stage, it may be reinstated by the prosecution at a later date without violating the double jeopardy protection.

See Also

Bind Over (Criminal Process) Information (Criminal Process).

Analysis and Relevance

The preliminary hearing is designed to protect the defendant from baseless accusation. While in theory this function seems straightforward, it is quite complex in practice. Indeed, several patterns have developed, depending on the jurisdiction. In some jurisdictions, the preliminary hearing actually screens weak cases. In such jurisdictions, many examinations are conducted and a comparatively high proportion of dismissals result. On the other hand, in jurisdictions where prosecutors perform stringent screening themselves, preliminary hearings tend to be mere formalities and dismissals infrequent. In these jurisdictions, preliminary hearings are often waived. Preliminary hearings also provide defense counsel with an opportunity for discovery. Requiring the prosecution to put forward at least a portion of its case, defense counsel can sometimes better assess the strength of the case against the accused. Often prosecutors adopt an “open file” policy whereby they share at least police reports with defense counsel in all cases. This practice provides the defense with more information than could probably be obtained through a preliminary examination. It also saves prosecutorial resources in that an attorney need not invest half a day participating in a preliminary hearing. As a result, preliminary hearings are seldom utilized in such jurisdictions.

Notes and References

  1. Definition of Preliminary Hearing from the American Law Dictionary, 1991, California

Resources

See Also

  • Legal Topics.
  • Arraignment; Bail; Counsel: Right to Counsel; Criminal Justice System; Criminal Procedure: Constitutional Aspects; Cross-Examination; Discovery; Grand Jury; Trial, Criminal.

    Related Case Law

    Coleman v. Alabama, 399 U.S. 1 (1970).

    Gerstein v. Pugh, 420 U.S. 103 (1975).

    Goldsby v. United States, 160 U.S. 70 (1895).

    Further Reading (Books)

    Arnella, Peter. “Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction without Adjudication.” 78 Michigan Law Review 463 (1980): 476_484, 529_539.

    Federal Rules of Criminal Procedure 5(c), 5.1.

    LaFave, Wayne R.; Israel, Jerold H.; and King, Nancy J. Criminal Procedure. Sections 14.1-14.4. St. Paul, Minn.: West Group, 1999.

    Subin, Harry I.; Mirsky, Chester L.; and Weinstein, Ian S. Federal Criminal Practice. St. Paul, Minn.: West Group, 1992.

    Torcia, Charles E. Wharton’s Criminal Procedure. 13th ed. Sections 138-141. Rochester, N.Y.: Lawyers Cooperative, 1989. Supp. 1999. 18 U.S.C. sec. 3060.

    Whitebread, Charles H., and Slobogin, Christopher. Criminal Procedure. Westbury, N.Y.: Foundation Press, 1993. Pages 536_544.

    Wright, Charles Alan. Federal Practice and Procedure. 3d ed. Sections 83-87. St. Paul, Minn.: West, 1999.

    Further Reading (Articles)

    Preliminary hearings not closed very often Scott Peterson’s lawyers say it’s needed so he can get a fair trial, Oakland Tribune; August 3, 2003; MODESTO BEE

    TOBIN JONES INDICTED IN HIS WIFE’S SLAYING FOR GRAND JURY, PROSECUTOR PRESENTS STRONGER CASE THAN IN PRELIMINARY HEARING.(LOCAL), The Virginian-Pilot (Norfolk, VA); February 6, 1997; Waltz, Lynn

    STATE LAW PUTS WITNESSES AT RISK, CRITICS SAY FOR PRELIMINARY HEARINGS, TESTIFYING LIVE IS A POTENTIALLY FATAL FLAW IN SYSTEM.(LOCAL), The Virginian-Pilot (Norfolk, VA); November 9, 1999

    Management of the Preliminary Hearing, Dispute Resolution Journal; February 1, 1999; Battelle, Anthony E.

    Preliminary Guantanamo Hearings Planned, AP Online; August 4, 2004; IAN JAMES, Associated Press Writer

    O.J. Simpson Preliminary Hearing Enters Second Week, Los Angeles Sentinel; July 7, 1994; Dennis Schatzman

    Preliminary hearings due later this month for four prisoners at Guantanamo, AP Worldstream; August 3, 2004; IAN JAMES, Associated Press Writer

    Preliminary hearings set for August in case of 7-year-old’s death., Greeley Tribune (Greeley, CO); June 30, 2007

    Judge’s refusal to offer plea bargains drives up number of preliminary hearings.(Originated from The Orange County Register), Knight Ridder/Tribune News Service; August 7, 1997; Montgomery, Tiffany

    Peterson preliminary hearing open to public, Chicago Sun-Times; August 15, 2003; Brian Skoloff

    Bryant’s attorneys ask judge to close preliminary hearing, AP Worldstream; September 12, 2003; JON SARCHE, Associated Press Writer

    Driver Waives Preliminary Hearing, The Washington Post; June 15, 2007; Henri E Cauvin – Washington Post Staff Writer

    PRELIMINARY HEARING SET IN KENDALL SERGEANT’S SEX CASE, The Beacon News – Aurora (IL); January 7, 1999

    Simpson Held Without Bail After Preliminary Hearing, NPR All Things Considered; July 8, 1994

    HOUSE DILUTES SENATE BILL TO END PRELIMINARY HEARINGS ONLY LOW-LEVEL FELONIES EXEMPT IN AMENDMENT.(Local), Rocky Mountain News (Denver, CO); April 9, 1998; Luzadder, Dan

    Hyrum man waives 3 preliminary hearings, Deseret News (Salt Lake City); July 5, 2003

    MCKNIGHT OWEN WAIVES PRELIMINARY HEARING, Idaho State Journal; March 23, 2012; Hancock, Jimmy

    10 IN OREGON CASE GO TO COURT FOUR ARE ORDERED TO STAND TRIAL AND SIX GIVE UP THE RIGHT TO A PRELIMINARY HEARING.(LOCAL/WISCONSIN), The Wisconsin State Journal (Madison, WI); September 2, 2005

    Defendant waives preliminary hearing,: ; Prosecutor says case against Danny Combs, 20, will go, Charleston Daily Mail; September 25, 2007; TOM BREEN

    Accused Robber Waives Preliminary Hearing, Standard-Speaker (Hazleton, PA); March 21, 2012

    Preliminary Hearing: Open and Free Legal Research of US Law

    Federal Primary Materials

    The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Preliminary Hearing. This part provides references, in relation to Preliminary Hearing, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

    Federal primary materials about Preliminary Hearing by content types:

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    U.S. Courts of Appeals
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    Presidential Materials

    Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

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    Federal Legislative History Materials

    Legislative history traces the legislative process of a particular bill (about Preliminary Hearing and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Preliminary Hearing or other topics), or locating the current status of a bill and monitoring its progress.

    State Administrative Materials and Resources

    State regulations are rules and procedures promulgated by state agencies (which may apply to Preliminary Hearing and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Preliminary Hearing. Finding these decisions can be challenging. In many cases, researchers about Preliminary Hearing should check state agency web sites for their regulations, decisions, forms, and other information of interest.

    State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

    State opinions of the Attorney General (official written advisory opinions on issues of state law related to Preliminary Hearing when formerly requested by a designated government officer):

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