What is a Preliminary Hearing?
In Illinois, a Defendant charged with a felony offense has a right to a preliminary hearing. The preliminary hearing is a court date at which the prosecution has the burden of presenting evidence showing that there is probable cause to believe that the Defendant has committed a felony.
Basic considerationsIf the prosecution cannot convince the judge that there is probable cause to bind the case over for trial, the judge will dismiss the charges against the Defendant.
It is important to note that Probable Cause is one of the lowest standards in the Illinois legal system, meaning that it is relatively easy for the prosecution to show that there is probable cause. However, the mere fact that the judge finds probable cause does not mean that the Defendant is guilty or has a bad case. In the overwhelming majority of Felony cases filed in Illinois, the judge finds probable cause and the case continues.
To show probable cause at a preliminary hearing in Illinois, prosecutors will usually call a police officer to the witness stand and ask the officer a series of questions, with the goal of showing that the Defendant appears to be involved in some conduct that would constitute a felony. Illinois law allows hearsay testimony at a preliminary hearing, meaning that one police officer can appear and read the police report of another police officer, or a police officer can appear and say what a witness allegedly stated outside of court. That sort of hearsay testimony would generally not be allowed at trial, but it is allowed by Illinois courts at the preliminary hearing.
A benefit of the preliminary hearing for the Defendant is that the Defendant’s attorney can ask questions of the prosecution’s witnesses at the preliminary hearing, thereby locking them into a story that they cannot change later. Sometimes it is possible to ask questions at a preliminary hearing that the Defendant’s attorney would not be able to ask until Trial, and by learning that information early the case can be improved. However, as with most situations, it is not necessarily wise to play your strong cards first without knowing the full breadth of the prosecution’s case.
There are also situations where it is wise for the Defendant to waive (give up) the right to a preliminary hearing. That includes cases where the evidence is such that there is really no benefit in having the preliminary hearing, or cases where the benefit is outweighed by the Defendant’s desire not to have details of the case stated in open court. There are also other situations that are more technical in nature, relating to the ability of the prosecution to use preliminary hearing testimony at trial if a witness is unavailable for trial that should be considered as well.
If the preliminary hearing results in a finding of probable cause, or if the Defendant waives the preliminary hearing, then the case proceeds. If there is no finding of probable cause, then the court dismisses the charges.
When does it make sense to waive the preliminary hearing?A defendant may decide, after consulting with counsel, to waive the prelim. This allows the case to proceed to trial (though not immediately). The reasons the defense might waive the right to a preliminary hearing include:
The defendant intends to plead guilty and wants to avoid publicity (and expense, if the defendant is represented by private counsel).
The defendant is guilty of more than the charged offenses and fears further charges from the potentially damning evidence that may come out at the preliminary hearing. Also, if the facts of the case are particularly nasty, and the defendant plans to plead guilty anyway, the less the sentencing judge hears about the facts, the better for the defendant.
The prosecution’s case is strong, and the defense fears that prosecution witnesses may become so entrenched in their positions once they testify under oath that they may become angry (or angrier) with the defendant and possibly refuse later interviews requested by the defense as it prepares for trial.
The prosecution intends to call witnesses at the preliminary hearing who may be unavailable at the time of trial. If the hearing goes forward, this testimony will be available in the form of transcripts for the prosecution to use at trial. By waiving, the defendant may prevent the testimony from coming in when trial commences.
The defendant wants to stall in the hopes that by the time the case comes to trial, the prosecution’s witnesses will have either disappeared, forgotten, or become confused about what happened during the alleged crime.
As with anything related to criminal charges, the ultimate decision lies with the Defendant following consultation with his or her experienced criminal defense counsel.