Preliminary Hearing

• Author: Jeffrey Lehman, Shirelle Phelps

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A proceeding before a judicial officer in which the officer must decide whether a crime was committed, whether the crime occurred within the territorial jurisdiction of the court, and whether there is PROBABLE CAUSE to believe that the defendant committed the crime.

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After the police have arrested a crime suspect, the suspect is entitled to a preliminary hearing. Designed as a safeguard against unreasonable arrest and detention, the hearing is conducted to determine whether there is sufficient evidence to hold the defendant for trial. State and federal rules of CRIMINAL PROCEDURE provide for when a hearing must be held and what issues must be raised, which depend in large part on whether the crime is a misdemeanor, gross misdemeanor, or felony.

The most common preliminary hearing is the initial appearance, which is also called the first appearance. Various procedural steps may be taken during the initial appearance. In minor misdemeanor cases, the initial appearance may be the only one, if the defendant pleads guilty. When the charge is more serious, the accused at the initial appearance may be informed of the charges, advised of the RIGHT TO COUNSEL and the right to remain silent, warned that any statement made may be used against the suspect in court, and advised of how to seek release on bail. In some jurisdictions, including the federal courts, a plea may be entered and bail may be set at this first appearance. In other jurisdictions, the suspect will not be allowed to make a plea if the offense is a felony or gross misdemeanor, and a preliminary hearing, also called a preliminary examination, will be promptly scheduled.

The U.S. Supreme Court, in Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), mandated that persons arrested without a warrant and held by the police must be given a preliminary hearing to determine if there is probable cause. Probable cause means that a reasonable ground exists for belief in the facts, and the hearing examines whether a prudent person would believe that the suspect committed the offense in light of those facts. In County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991), the Court made it a constitutional requirement that a prompt judicial determination of probable cause follow a warrantless search. It ruled that a determination must be made without unreasonable delay, and in no event later than forty-eight...