It is the Defendant's right in criminal proceedings. It is held soon after arraignment usually within 14 days unless the 14 day rule is waived. It is a mini-trial where the judge using probable cause makes a determination whether the person charged should be Bound Over to stand trial.
At the preliminary hearing the judge does NOT decide whether the accused is "guilty" or "not guilty," In making this determination, the judge uses the "probable cause" legal standard, as compared to "Beyond a Reasonable Doubt" as required at trial. At the preliminary hearing, the court listens and reviews the evidence in the light most favorable to the prosecution!!
HOLD OR NOT TO HOLD - THAT IS THE QUESTION:
The test at the Preliminary hearing is two pronged: (1) is it probable that a crime was committed and (2) was the accused in proximity to the crime so that he or she should be asked, whether he or she did it. That's it! If the prosecution can prove both of these prongs, most attorneys will waive the exam. The waiver is done to avoid the preservation of testimony that may not be available at trial, and to avoid getting harmful testimony on the record at a lowered standard favoring the prosecution.
WHAT TO EXPECT AT THE PRELIMINARY HEARING:
In reaching this probable cause decision, the judge listens to arguments from the prosecutor and from the defendant's attorney. The prosecutor will then call witnesses to testify, and may introduce physical evidence in an effort to convince the judge that the case should go to trial. The defense may cross-examine the government's witnesses and calls into question any other evidence presented against the defendant. Here, the defense seeks to convince the judge that the prosecutor's case is not strong enough, so that the judge will dismiss the case against the accused before trial. This will only happen if the judge finds that there was NO CRIME COMMITTED or that it is not REASONABLE to ask the accused the question, "Did you do it?"
If the court finds "Probable Cause" to have the accused answer the question, or if the accused waive the hearing, he or she you will be given another court date before a court properly designated to hear the case
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