The Right to a Preliminary Hearing The right to a preliminary hearing is one of several important rights a Defendant has prior to trial. If the charge is considered a felony, and therefore cannot be adjudicated in District Court, the Defendant has a right to a Preliminary Hearing. This is not automatic and must be requested by either the Defendant's or the Defendant's attorney. Such a request must be made within 10 days or the Hearing is considered waived. If a Preliminary Hearing is requested and set, it is important to understand its basic premise and purpose. The basic purpose of a preliminary hearing is for the Judge to determine whether probable cause exists to "send the case forward" towards trial. In a sense, the preliminary hearing is a "safety net" so that cases that were not prepared properly or should not be prosecuted are eliminated before they get any further into the system.
Unfortunately, for many reasons, the preliminary hearing has become more of a rubber stamp than a safety net protecting the sanity of the system. For example, in a preliminary hearing, the Defendant cannot call witnesses or testify on his or her own behalf. Only the State can call witnesses, and these are usually a representative police officer who was one of the members of law enforcement "working the case." The usual rules of evidence do not apply in a preliminary hearing and, therefore, the State is free to ask any kind of question it sees fit without the usual evidentiary restrictions. One benefit to the Defense at a preliminary hearing is the right of the Defense attorney to ask questions of whomever testifies for the State. There are reasons for and against taking this opportunity. Cross-examining the State's witness at a preliminary hearing can be beneficial because, like all testimony, the witness will be held to what he or she says throughout the life of the matter. Therefore, if the defense attorney gets a particularly good response to a question, that witness will be "stuck" with the information he or she provided. Should that witness say something different later at trial, he or she will be strenuously cross-examined as to the reason for the change in testimony. On the other hand, many lawyers choose to not ask questions at a preliminary hearing because it can give the State a preview of where the Defense is planning to concentrate it's defense strategy. Therefore, the choice whether or not to ask questions of a witness at a preliminary hearing is usually made on a case by case basis and is one of strategy. At the conclusion of the Preliminary Hearing, if the Judge finds that probable cause does exists, the matter will be transferred to the Circuit Court, where it will be set in for trial. If the Judge rules that probable cause does not exists, the charge(s) will be dismissed.