People facing a preliminary hearing often have one burning question: Can the charges be dropped at the hearing?
The short answer is yes, it is possible that either the judge or the prosecutor will drop the charges.
The judge will dismiss the case if he or she finds, based on the evidence presented at the preliminary hearing, that there is not sufficient probable cause to “hold you to answer” and bind you over for trial.
It’s also possible that the prosecutor may drop the charges. This may happen, after seeing the state’s witnesses testify at the preliminary hearing, he or she loses confidence that the state will be able to prove its case at trial.
Either way, it is possible for a defendant to win the case at the preliminary hearing.
1. What is a preliminary hearing?
A preliminary hearing is a court hearing in criminal cases where a judge determines if there is enough evidence, or sufficient evidence, to hold a defendant for a criminal trial.1
During the hearing, the prosecutor has the burden to show that there is probable cause to believe that:
- a crime was committed, and
- the defendant is the person that committed it.2
Probable cause is a lower standard of proof than the “beyond a reasonable doubt” standard used in an actual trial. A district attorney will meet this standard if he/she can show that there is a reasonable belief that you committed the crime charged.3
In contrast, a prosecutor will meet the beyond a reasonable doubt standard if he/she can prove to a moral certainty that you committed a crime.4
If there is a lack of probable cause to support a criminal charge during a prelim, the judge can dismiss the charge or reduce it to a lesser crime.5
Note that preliminary hearings are not always required, and some states only say they must be held with felony charges (as opposed to misdemeanor charges).6 Some states hold grand jury proceedings instead of conducting a hearing.
If a hearing is held, it typically must be held within 14 days of the initial appearance if the defendant is being held in custody. If the accused is out on bail, then the preliminary hearing must be held within 21 days of the initial appearance.7
2. Can you be represented by a defense attorney?
Yes. You have the right to be represented by a criminal defense lawyer at a preliminary hearing.8 This right includes the right to a court-appointed public defender if you cannot afford to hire a private lawyer.9
During the hearing, legal counsel for the defendant is allowed to present evidence to the judge that shows the defendant should not stand trial for the crime charged. The lawyer can conduct cross-examination of any of the prosecution witnesses and even cast doubt on any of the prosecutor’s physical evidence.
Note that a defense attorney may use the preliminary hearing to:
- build a foundation to impeach the prosecutor’s witnesses,
- preserve a witness’s testimony,
- provide a basis for plea bargain negotiations, and
- evaluate the strengths and weaknesses of the case.
If you or a loved one is facing a preliminary hearing, you should consult with a defense attorney or law firm for legal advice.
Most firms provide free consultations and your communications with an attorney are protected by the attorney-client relationship.
3. Is a preliminary hearing the same as an arraignment?
A preliminary hearing is not the same proceeding as an arraignment. An arraignment is usually the first court hearing in a criminal case where:
- the defendant enters a plea (guilty, not guilty, or no contest),
- the issue of bail and release is determined, and
- a future court date is set.
A judge will also read the criminal charges that have been filed against you during an arraignment.
As with a preliminary hearing, you have the right to be represented by a defense attorney at an arraignment.
You also have the right:
- against self-incrimination,
- to a speedy trial,
- to a trial by jury, and
- to produce and confront witnesses.
Legal References:
- Black’s Law Dictionary, Sixth Edition – “Preliminary hearing.”
- See same. See also Federal Rule of Criminal Procedure 5.1.
- Black’s Law Dictionary, Sixth Edition – “Probable cause.”
- Black’s Law Dictionary, Sixth Edition – “Beyond a reasonable doubt.”
- See, for example, Florida Rule of Criminal Procedure 3.133.
- See, for example, Colorado Rule of Criminal Procedure 5(a)(4). See also People v. Brothers (2021) 498 P.3d 1134.
- See, for example, Idaho Criminal Rule 5.1 and Mississippi Rule of Criminal Procedure 6.1.
- See, for example, California Penal Code 858 PC.
- See, for example, California Penal Code 987 PC.
