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What is a Preliminary Hearing?

Posted by attorney William Pfeifer

Unless there has been a grand jury indictment, a defendant is entitled to a preliminary hearing a once he or she has been arrested for a felony offense (and for certain misdemeanors in federal court and in some states). A preliminary hearing (also known as a “probable cause" hearing) is a proceeding wherein the prosecuting authority must establish in court that they have probable cause to detain the individual on the filed charges. The hearing is designed primarily for the benefit of those incarcerated individuals who have been unable to post bond, to ensure that they are not held in jail on unfounded charges. However, individuals out on bond are also permitted to request a preliminary hearing, and as a general rule an attorney should request one in almost every felony case regardless of whether the defendant is in jail.

If a defendant is in jail at the time the preliminary hearing is conducted and the state fails to establish probable cause that he or she has committed the offense, the defendant is entitled to have the charge dismissed and to be released from jail. If the defendant is not in jail and the state fails to establish probable cause the defendant is entitled to have the charge dismissed and to be released from the conditions of his or her bond. However, a dismissal of the charge at the preliminary hearing does not prevent a grand jury from issuing an indictment against the defendant at a later date. Thus, a defendant whose case is thrown out at a preliminary hearing could still face the same charges again. If this occurs, then the defendant will be rearrested on the same charge, and would have to post bond in order to get out of jail while awaiting trial.

Although the defendant has the right to request a preliminary hearing, the defendant loses the right to the hearing if the state obtains a grand jury indictment before the hearing is held. Thus, in some cases the prosecutor will rush a case to the grand jury as a tactical move to deprive the defendant of the opportunity to have a probable cause hearing. There are also situations where a case may be presented to a grand jury before the defendant has been arrested for any crime, and he or she learns of the allegations for the first time after a grand jury has issued an indictment. In such a situation, the defendant has no right to a preliminary hearing.

Evidentiary rules in a preliminary hearing are more lax than they are in a normal trial. For example, while hearsay is not admissible in most trials and hearings, many states (including Alabama) allow witnesses to present hearsay testimony in preliminary hearings. In fact, in jurisdictions where hearsay testimony is allowed, it is common for the arresting officer to be the sole testifying witness concerning events he or she did not personally observe. In these jurisdictions, the judge is permitted to find probable cause based entirely on hearsay evidence.

Defense attorneys typically use the preliminary hearing as a tool for gathering evidence about the case against the defendant. While the attorney sometimes tries to beat the charge at the preliminary hearing (particularly when the defendant is in jail), many attorneys treat the hearing more like a deposition in order to find out in advance what the person is likely to say if there is a jury trial of the case. The best way to handle the preliminary hearing varies depending on the specific situation at hand and on the needs of the particular defendant.

Regardless of how the hearing is to be conducted, any defendant arrested for a felony charge should file an immediate request for a preliminary hearing. Whether the request is filed by an attorney or is filed by the defendant, make the request as soon as possible to make sure the right is not waived.

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