9.3 THE PRELIMINARY HEARING

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 Ed.)

9.3 THE PRELIMINARY HEARING

9.301 In General.

The preliminary hearing is an early screening process that protects a person who is arrested on a felony charge before indictment from the possibility of a long detention on groundless charges. The hearing is held in the presence of the accused before a district court judge, who examines witnesses under oath for and against the accused to determine whether there is "sufficient cause" ¹⁸³⁴ to charge the accused with an offense. After the hearing, the felony charge is either certified to the circuit court for reference to a grand jury, reduced to a misdemeanor and tried by the district court, or dismissed. The preliminary hearing must take place "as soon as may be practical," which should be construed to mean within a reasonable time after the arrest. ¹⁸³⁵ At the preliminary hearing, the defendant must not be called upon to plead. A guilty plea entered at the hearing is inadmissible against the accused at trial. ¹⁸³⁶

The accused arrested for a felony has a statutory but not a constitutional right to a preliminary hearing. ¹⁸³⁷ Although the Virginia Code states that no person arrested for a felony may be denied a preliminary hearing, ¹⁸³⁸ a hearing is required only where the accused was arrested before indictment. ¹⁸³⁹ Where the defendant insists on the statutory right to a preliminary hearing, failure by the court to honor this right constitutes reversible error. ¹⁸⁴⁰ Because the requirement of a preliminary hearing in general district court is only procedural and not jurisdictional or constitutional, any defect in connection with the hearing (or lack of one) must be raised before trial or be lost forever. ¹⁸⁴¹ Doing so, however, creates a procedural morass. The Virginia Court of Appeals has held that when the charge against the accused is terminated by a nolle prosequi order and the accused is subsequently directly indicted, there is no longer an arrest on a warrant entitling the accused to a preliminary hearing. Furthermore, the circuit court is without jurisdiction to determine whether entry of the district court's nolle prosequi order is voidable. ¹⁸⁴²

9.302 Procedure.

A. Standard.

At the preliminary hearing, the court determines from the evidence whether there is sufficient cause to charge the accused with the offense. ¹⁸⁴³ It is sufficient if the evidence adduced shows that an offense has been committed and that there is probable cause to believe the accused guilty of the offense. ¹⁸⁴⁴

If the evidence is insufficient to show reasonable grounds to believe the accused guilty of the offense charged, the court must discharge the defendant. ¹⁸⁴⁵ Furthermore, if the evidence shows that the accused probably committed the offense, but the court is convinced that he or she could not or would not be convicted at trial, the court may discharge the accused. If the odds are against a conviction, the court and Commonwealth's attorney will generally concede that a trial under those circumstances would merely add to the burden of the court of record, as well as increase expenses on the part of everyone concerned. Discharge of the accused at a preliminary hearing, however, does not bar the Commonwealth's attorney from presenting the matter to the grand jury for consideration. ¹⁸⁴⁶

The Virginia Supreme Court has noted in dicta that in a criminal case there is no precedential basis on which to claim that a court must find probable cause as a matter of law simply because the Commonwealth produces more than a scintilla of evidence that a crime has been committed and that the defendant committed that crime. Inherent in the court's function at a preliminary hearing is the exercise of the court's discretion in weighing the evidence, including the credibility of the witnesses and resolving the conflicts of their testimony, to determine whether probable cause has been shown. ¹⁸⁴⁷

If there is sufficient cause only as to a misdemeanor, the accused can be tried for that offense in general district court. The court has the responsibility to proceed to try the accused on the misdemeanor, either at the time of the hearing (but subsequent to the finding of no probable cause on the felony) or at some later time. ¹⁸⁴⁸ When there is sufficient cause to charge the accused with a felony, he or she must be committed to jail or let to bail pending the next stage of the proceedings. ¹⁸⁴⁹

B. Evidence.

Evidence is presented at the preliminary hearing in an adversarial manner both for and against the accused. The accused has the right to cross-examine any witness who testifies on behalf of the Commonwealth or on behalf of any other defendant, introduce witnesses on his or her behalf, and testify in his or her behalf. ¹⁸⁵⁰ The evidentiary rules for a preliminary hearing are governed by the same rules of evidence applicable at the trial. ¹⁸⁵¹

C. The Hearing.

At the preliminary hearing, the prosecution will typically produce just enough evidence to make out a prima facie case. After the witnesses have been sworn, the Commonwealth calls its witnesses who testify in the presence of the accused. They are subject to cross-examination by the defense. Pursuant to section 19.2-266, the defendant may move for closure of the preliminary hearing in order to protect his or her right to a fair trial. ¹⁸⁵²

At the conclusion of the prosecution's case, a motion to dismiss is in order if it appears that there is insufficient evidence to show reasonable grounds to believe the defendant has committed the offense. The motion usually should be made as a matter of course. If the motion is denied, the defense witnesses are then called, if desired. Before calling defense witnesses, counsel should carefully consider whether it is wise to do so. In all probability, if a motion to dismiss is denied at the conclusion of the Commonwealth's case, the court has made up its mind to hold the defendant for action by the grand jury. If the defense presents evidence or even if no defense evidence is presented, a motion to dismiss should be renewed at the conclusion of the hearing.

Arguments may be made by both sides after all the evidence has been presented.

D. Transcripts.

Either the district court or the circuit court to whom the case may be or has been certified may in its discretion order the testimony of the witnesses at the preliminary hearing to be reduced to writing and signed by them. ¹⁸⁵³ Failure of the court to appoint a court reporter, however, does not violate any of the accused's constitutional rights. ¹⁸⁵⁴ If the judge directs that the testimony be transcribed and "signed by the witnesses," the Constitution's equal protection guarantee requires that an indigent be furnished a transcript of the hearing without payment of any fee. ¹⁸⁵⁵ When a defendant's counsel was advised that the preliminary hearing would be recorded by electronic recording equipment but due to the equipment's malfunction no transcript was available, it was not a denial of equal protection for the court to deny the defendant's request for the transcript. ¹⁸⁵⁶

E. Right to Counsel.

Counsel must be appointed for any indigent charged with a criminal offense punishable by confinement in the penitentiary or jail. ¹⁸⁵⁷ No hearing on the charges may be held until the accused is given a reasonable opportunity to employ counsel, or, in the case of an indigent defendant, counsel is provided. ¹⁸⁵⁸ Thus, counsel must be appointed for an indigent defendant before the preliminary hearing. ¹⁸⁵⁹ Virginia Code sections 19.2-159 and 19.2-159.1 outline the procedure to be followed by the court in determining indigence and the latter section grants to the court the power to direct the Commonwealth's attorney to "make an investigation as to the indigency of the defendant, or of any other person making such statement" and requires the Commonwealth's attorney, or its designee, to reduce its investigation to writing and file it with the court within 14 days. Section 19.2-159(D) also addresses the appointment of counsel when a local public defender's office has a current active caseload that precludes their office from providing adequate representation for new clients.

9.303 Practice.

A. Waiver.

1. In General.

The accused may waive the preliminary hearing. ¹⁸⁶⁰ The waiver should be executed by the accused in writing. Counsel for the accused should consider the value of the preliminary hearing and advise the client of the right before any waiver is executed.

2. Value of Preliminary Hearing.

A number of considerations may militate against waiver. When the evidence against the defendant is weak, a preliminary hearing may result in the charges against the defendant being dismissed altogether, but discharge of the accused at a preliminary hearing does not bar the Commonwealth's attorney from presenting the matter to the grand jury for consideration. If there is sufficient evidence of extenuating or mitigating circumstances, the judge may be persuaded at the preliminary hearing to reduce the offense to a lesser felony or to a misdemeanor.

Preliminary hearings also help the defense discover the prosecution's case. However, since all the prosecution is required to do is produce a prima facie case, the defense generally will not be able to discover the strengths and weaknesses of the case from the preliminary hearing alone. ¹⁸⁶¹ Additionally, defense counsel is well advised to appear for the preliminary hearing having thoroughly reviewed all discovery and resist the impulse to treat the preliminary hearing as a discovery opportunity, a tactic too often used but almost always sure to irritate judges presiding over such hearings.

The preliminary hearing also allows the parties to preserve evidence given by witnesses. A witness unavailable for the trial itself may nonetheless provide evidence for the prosecution under the "former testimony" exception to the hearsay rule. ¹⁸⁶² Because of the substantial identity of issues, the administration of an oath...