Within some criminal justice systems, a preliminary hearing, preliminary examination, evidentiary hearing or probable cause hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial. At such a hearing, the defendant may be assisted by lawyer.
In Scotland, a preliminary hearing is a non-evidential diet in cases to be tried before the High Court of Justiciary. It is a pre-trial diet to enable the court to be advised whether both parties, the prosecution and the defence, are ready to proceed to trial and may also deal with ancillary procedural matters.
In the United States, at a preliminary hearing the judge must find that such evidence provides probable cause to believe that the crime was committed, and that the crime was committed by the defendant. There is a right to counsel at the preliminary hearing.
The conduct of the preliminary hearing as well as the specific rules regarding the admissibility of evidence vary from jurisdiction to jurisdiction. Hearsay is typically allowed. Should the court decide that there is probable cause, a formal charging instrument (called the information in some jurisdictions) will issue; and the prosecution will continue. If the court should find that there is no probable cause, then typically the prosecution will cease. Many jurisdictions, however, allow the prosecution to seek a new preliminary hearing, or even seek a bill of indictment from a grand jury.
- Is there probable cause to believe the alleged crime occurred and did it occur within the court's jurisdiction?
- Is there probable cause to believe that the defendant committed the crime?
If a judge determines that there is sufficient evidence to believe that the defendant committed the crime, it is said that the defendant is "held to answer" or "bound over" (in U.S. jurisdictions).
Legal terminology varies between U.S. jurisdictions, so in some jurisdictions a reference to a "preliminary hearing" may refer to a different type of hearing than is described in this article.
In criminal prosecutions the court schedules an arraignment at which the charges are formally presented to the defendant. In many states criminal charges may be commenced with the prosecutor's filing an "information" with the court, a document that describes basic facts alleged to constitute a criminal offense by the defendant and the criminal laws that the defendant is alleged to have violated. The defendant will then be scheduled for an arraignment at which the charge is formally presented. If the defendant does not plead guilty at the arraignment, the court schedules a preliminary hearing.
Where an indictment is obtained through means other than an information, such as through grand jury proceedings or after an arrest when the defendant is first brought to court, the arraignment may be described using terms such as "initial hearing", or "preliminary arraignment", creating the possibility of confusing with a preliminary hearing as described article. Those other hearings are not probable cause hearings.
A preliminary hearing is not always required, and its requirement varies by jurisdiction. In the U.S., for example, some states hold preliminary hearings in every serious criminal case; in others, they are held upon request by the defense, and still others, they are only held in felony cases.
If the defendant is charged with a felony under Federal law, the defendant has the right to an indictment by a grand jury pursuant to the Fifth Amendment to the Constitution as well as Title 18 of the United States Code. At grand jury proceedings, the defendant is not entitled to counsel present in the grand jury room (although witness may consult with counsel outside of the presence of the grand jury), and indeed may not even know that a grand jury is considering the case.
- "Serious Crime Defence in Scotland – An Advocate's Guide to High Court and Sheriff Court Jury Cases". UnlockTheLaw. Glasgow Law Practice. Retrieved 15 September 2017.
- Arenella, Peter (February 1980). "Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction without Adjudication". Michigan Law Review. 78 (4): 463. JSTOR 1288187.
- As a preliminary hearing is a "critical stage" of the proceeding, an indigent suspect is entitled to court-appointed counsel at the preliminary hearing. See Coleman v. Alabama, 399 U.S. 1 (1970).
- Larson, Aaron (22 February 2017). "Criminal Charges: How Are Crimes Prosecuted". ExpertLaw. Retrieved 15 September 2017.
- "Steps In a Criminal Case". Prosecuting Attorneys Association of Michigan. Retrieved 15 September 2017.
- Davis, Angela J. (2007). Arbitrary Justice: The Power of the American Prosecutor. Oxford University Press. p. 13. ISBN 0198039425. Retrieved 15 September 2017.
- Patterson, Dan. "How A Case Proceeds". Greene County Prosecuting Attorney's Office. Retrieved 15 September 2017.
- Larson, Aaron (2 September 2016). "What Happens After Criminal Charges Are Filed". ExpertLaw. Retrieved 15 September 2017.
- "Initial Hearing / Arraignment". Office of the United States Attorneys. Retrieved 15 September 2017.
- "Preliminary Arraignment". Pennsylvania Office of Victim's Services. Retrieved 15 September 2017.
- See, e.g., "Pennsylvania Code, Title 234, Rule 542. Preliminary Hearing; Continuances". The Pennsylvania Code. Commonwealth of Pennsylvania. Retrieved 20 December 2017.
- See, e.g., "Alabama Rules of Criminal Procedure , Rule 5: Preliminary Hearing" (PDF). Alabama Judicial System. Retrieved 20 December 2017.
- See, e.g., Powell, Lloyd E. (March 2006). "Preliminary Examinations" (PDF). Michigan Bar Journal: 32. Retrieved 20 December 2017.
- 18 U.S.C. §3060
- Fenster, Jay (1979). "The Presence of Counsel in the Grand Jury Room". 47 (6): 1138. Retrieved 15 September 2017.