The preliminary hearing phase of a federal trial is one that defendants should prepare for, especially if you plan to enter a “not guilty” plea during your arraignment. The United States Attorney's Office explains that a preliminary hearing “will often be held” in federal cases where the defendant pleads not guilty.
However, a preliminary hearing generally only occurs if a grand jury has not already indicted you. Though you can waive the right to a preliminary hearing, your attorney may advise you not to do so (and explain their reasoning).
What Is the Purpose of a Preliminary Hearing?
A preliminary hearing serves the same role as the grand jury indictment process. Rather than a grand jury determining whether to proceed with criminal charges against you, a judge makes this decision after the preliminary hearing.
The U.S. Attorney's Office likens a preliminary hearing to a “mini-trial.” The goal of the hearing for the prosecution will be to prove that there is probable cause to proceed to trial. Your attorney's goal will be the opposite: to show that there is not probable cause for a trial.
The judge presiding over the preliminary hearing will side with either the prosecutor or your attorney. If it finds the prosecutor's case compelling, the judge will set a trial date. If the judge instead sides with your attorney, they will likely dismiss your case.
What Happens During the Preliminary Hearing?
The magistrate judge overseeing a preliminary hearing may decide what will or will not happen during the hearing. A preliminary hearing may generally involve:
- The prosecutor outlining their case for criminal charges
- The prosecutor presenting any evidence that supports its case for criminal charges
- The prosecutor presenting and questioning witnesses whose testimony is favorable to their case
- Your attorney cross-examining the prosecution's witnesses
- Your attorney making oral arguments explaining why you should not face criminal charges
While the preliminary hearing may be like a “mini-trial” in some respects, trials and preliminary hearings are not exactly alike. Your lawyer may have a limited ability to present evidence and may not be permitted to submit their own witnesses or experts.
Like the grand jury process, a preliminary hearing is generally oriented in the prosecution's favor. This fact makes it even more important that you have a competent, experienced criminal defense attorney arguing your case.
When Will the Preliminary Hearing Take Place?
If you do not make bail after your initial court appearance, your preliminary hearing must take place no more than 14 days after that initial appearance.
If you are released from custody after making bail, your preliminary hearing may take place no more than 21 days after your initial appearance in front of a judge.
This timeline can be complicated if the date of your initial appearance and your arraignment are different. Your attorney will explain whether you face a preliminary hearing, when the hearing will take place, and how you can prepare.
A Preliminary Hearing May Be Your Attorney's First Significant Chance to Defend You
Prior to a preliminary hearing, your attorney may argue for you to receive a fair bail and help you enter a plea. During a preliminary hearing, you may see your attorney's strategy and skill on full display, as they will be fighting to have your case dismissed.
Attorney Joseph D. Lento has defended many clients during preliminary hearings. We can represent you during your preliminary hearing, too. Ideally, we will convince the magistrate judge to dismiss the charges that the prosecution seeks to file against you.
Call the Lento Law Firm today at 888-535-3686 to discuss your case.