What Happens When You Waive a Preliminary Hearing?

By Beverly Bird
At a preliminary hearing, the state must convince the judge that you should stand trial.

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When you don’t have an attorney to guide you, navigating the various steps of a criminal trial can be like working your way through a maze blindfolded. Even if you have a lawyer, you’re still faced with making decisions every step of the way to try to ensure the proceedings work out in the best way possible. You have a right to a preliminary hearing, but you don’t have to exercise this right if you or your lawyer don’t feel it’s in your best interests.

What Happens at a Preliminary Hearing

Although the exact timing varies from state to state, preliminary hearings typically take place at the beginning of criminal proceedings. In federal court, they must happen within 30 days of arrest, and many states’ laws mirror this time frame. A preliminary hearing is usually not necessary if you’re indicted by a grand jury instead, which is sometimes the case with more serious crimes. In some states, the defendant must specifically ask for a prelim. The state has the burden of proving at the hearing that it has sufficient evidence against you to warrant holding you over for trial. This is not usually a difficult challenge because the burden of proof at a preliminary hearing is much lower than at trial – the prosecutor need only establish there’s reason to suspect you committed the crime, not that you’re guilty beyond a reasonable doubt. Both sides have the right to present witnesses and testimony to the judge, who makes the final decision as to whether to hold you for trial.

Your Right to Waive the Hearing

You have a constitutional right to waive a preliminary hearing. If you decide to do so, your case will proceed just as though you had attended and the judge decided the state had ample evidence to try you. Some states require that you have a lawyer if you’re going to exercise your right to waive the hearing, so you would have to hire someone to at least attend your arraignment with you so you can officially decline.

Reasons to Waive the Hearing

Waiving the preliminary hearing is often a tactical move, but sometimes it just comes down to dollars and cents. If you know the state has a slam-dunk case against you, you might want to save your money for legal fees for trial. It’s also possible the preliminary hearing might result in even more charges against you than what you’re already facing. This might happen if you testify at the prelim on your own behalf and say something that additionally incriminates you, or if more evidence against you comes to light during the proceedings. The judge could decide you should be tried for these violations of the law as well.

Disadvantages of Waiving the Hearing

If you don’t waive the hearing, a prelim gives you and your attorney a rudimentary idea of the state’s case against you. The state doesn’t have to present all its evidence and probably won’t – the prosecutor will offer just enough to make sure you’re held over for trial. Even so, the process can give you an idea of what some of the state’s witnesses will say at trial, and you or your attorney have the right to cross-examine these individuals to find out how well they hold up under questioning. If the prosecutor isn’t planning to present witnesses, however, attending the prelim may not be worth your while, particularly if an attorney advises you that the odds of having your case dismissed at the hearing are slim to none. Ultimately, it’s a decision you probably should not make without a lawyer’s advice.

About the Author

Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.