Preliminary Hearing

A preliminary hearing takes place during the criminal court process soon after the defendant has been criminally arraigned. During the preliminary hearing, a judge determines whether there is enough evidence to order the defendant to stand trial. The judge makes this decision based on a probable cause standard, meaning whether the prosecutor presents enough evidence to convince reasonable people on a jury that the defendant committed a crime. To explore this concept, consider the preliminary hearing definition.

Definition of Preliminary Hearing


  1. A criminal proceeding in which a judge determines whether there is enough evidence to bind the defendant for trial.

What is a Preliminary Hearing

A preliminary hearing is just one part of criminal court proceedings. Held after an individual accused of a crime has been arraigned, the preliminary hearing is held for the prosecutor to prove to the judge that there is sufficient evidence to convince a reasonable person to believe the defendant may be guilty of the crime for which he has been charged. Many states use a grand jury system to determine whether to indict or formally charge a defendant with a crime. Some states use preliminary hearings, though only for those accused of felony crimes.

When Preliminary Hearings are Held

Once an individual has been arrested, he must be arraigned quickly. After the arraignment, where the defendant is formally charged, and has the opportunity to enter a plea, a preliminary hearing must take place within a specified period of time. If the defendant is in custody at the time of the arraignment, arrangements must be made to release him from custody pending a preliminary hearing. This often involves the setting of a bail amount sufficient to motivate the defendant to return to court at the appointed time. In some cases, usually involving violent crimes, or a defendant who is likely to run away, bail may be denied, and the defendant kept in custody.

With a defendant remaining in custody, the preliminary hearing must take place within 30 days of the date of arrest. If the defendant has been released from custody, the preliminary hearing is often pushed back to a later date. In the event there is a delay in holding the preliminary hearing, the defendant’s constitutional rights to a speedy trial may be violated, which could result in dismissal of the case.

What Happens at a Preliminary Hearing

A preliminary hearing offers a brief preview of what the trial will be like if the case proceeds. During the hearing, the prosecution offers evidence and testimony from various witnesses supporting his claim that the defendant committed the crime. This is not a full presentation of evidence, as the goal of the prosecutor is to convince the judge that there is probable cause to hold a trial.

The defendant’s attorney will have the opportunity to cross-examine whatever witnesses are called by the prosecutor, and attempts to shed doubt on the evidence, in an attempt to convince the judge that the prosecutor’s case does not have sufficient merit to go to trial.

Possible Outcomes of a Preliminary Hearing

A preliminary hearing has three possible outcomes, each of which determines the next step in the court process:

  • Proceed to trial – in most cases, the defendant is “bound over,” or ordered to go to trial on the criminal charges.
  • Reduce the charges and go to trial or plea bargain – on occasion, the judge reduces the severity of felony charges to a misdemeanor, or to a less serious felony. From there the case may continue to trial, or a plea agreement may be discussed.
  • Case dismissed – a small percentage of cases may be dismissed by the judge, though if this occurs, the prosecution may regroup and refile the charges.

Waiving a Preliminary Hearing

It is possible for a defendant to waive his right to a preliminary hearing, but this is not common. Waiving a preliminary hearing should not be done without consulting an attorney, as it is at this hearing that the prosecution, and law enforcement if applicable, is required to prove they have enough evidence to go to trial.

Many attorneys prefer not to waive preliminary hearings because they provide an opportunity to cross-examine the witnesses, and gauge the other evidence presented, possibly for use at trial. Whether or not it is a good idea to waive the prelim is based on the specific facts of the case. It is for this reason that consulting with an experienced attorney is highly recommended.

Former Utah Attorney General Waives Preliminary Hearing

In some cases, a defendant’s attorney may advise he waive the preliminary hearing. This might occur because it is highly likely the matter would go to trial anyway, and waiving the prelim prevents the case from additional publicity. For instance, former Utah Attorney General, John Swallow, faced more than a dozen criminal charges of public corruption, the taking of bribes, accepting gifts, money laundering, and obstructing justice.

Swallow pled not guilty at his arraignment, and his attorney waived the preliminary hearing, telling members of the press that they wouldn’t be able to present any evidence that would keep the matter from going to trial. By waiving the prelim, Swallow moves more quickly to trial, where he can present his case to a jury.

Related Legal Terms and Issues

  • Criminal Arraignment – The arraignment process is used for criminal cases only. In some jurisdictions, criminal arraignment is only used in felony cases.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Felony – A crime, often involving violence, regarded as more serious than a misdemeanor. Felony crimes are usually punishable by imprisonment more than one year.
  • Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
  • Misdemeanor – A crime, often involving violence, regarded as more serious than a misdemeanor. Felony crimes are usually punishable by imprisonment more than one year.
  • Plea Agreement – An agreement between the prosecutor and defendant in which the defendant agrees to plead guilty to some of the charges, or a lesser charge, in exchange for a reduced sentence, or some other concession by the prosecution.
  • Prosecutor – A lawyer in a criminal case who tries to prove that the accused person is guilty.
  • Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.