What Happens at a Preliminary Hearing?

By Herkermer Brisbane

A preliminary hearing is best known as a "trial before a trial." It usually happens after an arraignment. The purpose of a preliminary hearing is not for the judge to decide whether a defendant is guilty or not guilty. Rather, during a preliminary hearing the judge decides if there exists enough evidence for the defendant to stand trial.

Scheduling

The law dictates that the judge has to hold the preliminary hearing inside of a reasonable time, according to the Cornell University Law School. The hearing has to be held no later than 14 days after the defendant's first appearance, if the defendant is in custody, and no later than 21 days if the defendant is not yet in custody. The judge can also extend the time in which a preliminary hearing has to be held if he can show good cause and get the defendant's consent to do so.

Defendant's Role

At the preliminary hearing, a defendant has the right to cross-examine opposing witnesses and even introduce evidence of her own, reports the Cornell University Law School. She may not demand evidence be ruled inadmissible because of it being unlawfully acquired. After listening to this evidence, the judge has an important decision to make. He has to determine whether there exists probable cause that the defendant could have committed the crime. If he thinks such probable cause exists, he has to obligate the defendant to show up for future proceedings.

Possible Discharge

During a preliminary hearing, a judge can also find that there is no probable cause that a crime has been committed. Similarly, the judge can opine that there is no probable cause that the defendant committed the crime in question. In such an event, it is the judge's duty to dismiss the complaint against the defendant and also discharge the defendant. A discharged defendant should remember that the government always has the right to prosecute her for the very same offense later on, says the Cornell University Law School.

Recording

The preliminary hearing has to be recorded while it is going on, by either a recording device or a court reporter. Any party who wants a copy of the preliminary hearing recording is entitled to receive one, according to the Cornell University Law School. A transcript of the preliminary hearing must also be given to any party that requests it. There also may be payments due from any party making the request, in accordance with appropriate Judicial Conference regulations.

About the Author

Herkermer Brisbane started writing professionally in 2004, working for Internet properties like Internet Brands. He studied English at Vancouver College.