IV. The Preliminary Hearing

• Library: The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)

IV. The Preliminary Hearing

The preliminary hearing is conducted by a trial judge or magistrate judge. In federal jurisdictions, the preliminary hearing must be within fourteen days of a prisoner's first appearance if that person is held in custody, or within twenty days of the first appearance before the magistrate judge if the defendant has made bail.⁴⁵ Most states have similar sorts of timing rules.⁴⁶

The preliminary hearing is designed to decide whether enough evidence can be offered to justify holding a defendant for trial. As one state court described it, the hearing acts as a

"screening device to ferret out groundless and improvident prosecutions [, thereby] reliev[ing] the accused of the substantial degradation and expense attendant to a criminal trial, but also conserv[ing] judicial resources and promot[ing] confidence in the judicial system." It is at this hearing that the State must establish a factual and legal basis to bind over a charge for trial by introducing "sufficient evidence to persuade the magistrate that there is probable cause to believe that the crime charged has been committed and that the defendant committed it." To meet its burden, the State must "produce believable evidence of all the elements of the crime charged." If the State fails to produce evidence of all the elements, then a magistrate must dismiss the charge and discharge the defendant.⁴⁷

Another wrote:

Although a preliminary hearing may serve other purposes, i.e., (1) expose weaknesses in the prosecution's case; (2) lay the groundwork for impeachment of prosecution's witnesses at trial; (3) result in a plea; (4) demonstrate the futility of a motion to suppress; (5) provide discovery of the prosecution's case; or (6) result in dismissal of the charges, its stated purpose is to determine whether there is probable cause to hold the defendant for the Grand Jury.⁴⁸

Federal prosecutors may seek and obtain an indictment before the preliminary hearing. If that effort is successful, no preliminary hearing is necessary.⁴⁹ Rules regarding preliminary hearings vary from state to state. One fundamental difference pertains to the charging document. Most states that use the grand jury indictment system for felonies permit prosecutors to bypass the preliminary hearing by obtaining an indictment before the scheduled preliminary hearing.⁵⁰ However, in other states a preliminary hearing is not required in order to seek an indictment before a grand jury.⁵¹ In states that allow an information (previously discussed), a prosecutor does not need to seek an indictment from a grand jury in order to take a defendant to trial.⁵² Generally...