The Rules on Preliminary Hearing and Trial


Preliminary Hearings take place before a judge and only after the prosecutor has filed charges against a person. These hearings are not trials, which may be conducted before a group of individuals, called a grand jury. There are, however, procedural rules on trial that similarly apply to preliminary hearings.

In this brief article, David Serna, a lawyer and educator for many years, discusses some of the rules that apply to preliminary hearings and trials.

Like a trial, an ordinary witness can testify during a preliminary hearing. Generally, the testimony must be based on what they perceive and not on opinion. However, during a preliminary hearing, unlike a trial, hearsay evidence is allowed and admissible.

Three things can happen after a preliminary hearing. If the charges are weak and unfounded, the judge would most likely dismiss the case outright. If there is, however, a finding of probable cause, the judge may either reduce or retain the charges made by the prosecutor.

After this, the parties may agree to proceed to plea negotiations or to the trial before the same court that held the preliminary hearing. Alternatively, the judge may set a pre-trial conference before the trial commences. As a third alternative, the defendant may be arraigned again before a higher court in states that have two-level courts.

Once the judge decides that a trial is necessary, the prosecutor files an information, which indicates the beginning of the criminal proceeding. Defendants who have posted bail to secure their freedom will remain free but will be required to attend hearings. On the other hand, in-custody defendants must remain in jail pending the next hearing.

According to David Serna, a lawyer of the defense, there are instances when a preliminary hearing substitutes a trial. This happens when the parties for the prosecution and defense agree to submit the case on the record. A judge, thereafter, determines the guilt or innocence of the defendant based on the same evidence presented and transcript used during the preliminary hearing.

Learn more from David Serna, a lawyer and educator for more than four decades.

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