Preliminary Hearing

Within forty-eight hours of arrest, a suspect typically has a "first appearance" before a magistrate. At that hearing the magistrate will advise the arrested person of the charges, appoint counsel if the suspect is indigent, and set bail. In addition, unless the suspect was taken into custody pursuant to an arrest warrant or following an indictment, the magistrate will ensure that there is probable cause to believe that the suspect committed the offense so as to justify the suspect's continued detention or other restraints on the suspect's liberty. This probable cause determination is often based in whole or in large part on the sufficiency of the criminal complaint; the suspect normally does not have the chance to introduce contrary evidence.

Also at the first appearance, the magistrate will often schedule the preliminary hearing (also called a "preliminary examination"). In the federal system the hearing is to be held within ten days of the first appearance if the suspect is in custody, and within twenty days if he is not in custody. Many states have comparable time limits, or may simply require that the hearing be held within a reasonable period after arrest. These time limits may be extended by the court with the consent of the defendant, or on a showing of extraordinary circumstances that justify the delay.

In contrast to the first appearance, the preliminary hearing is adversarial. The prosecution has the burden to convince the magistrate that there is probable cause to believe that a crime was committed and that the defendant committed it. The prosecutor may present witnesses, physical and documentary evidence to satisfy this burden. The defendant has the chance to make responsive arguments, to cross-examine the government's witnesses, and to present witnesses and other evidence of his own in an effort to show that probable cause is lacking. The suspect also has the right to be assisted by counsel, since a preliminary hearing is a "critical stage" in the pretrial process. The right to counsel is provided for in all jurisdictions by statute or court rule, although some lower courts have held that the failure to provide counsel may constitute harmless error. Also in contrast to the first appearance, a finding of no probable cause at a preliminary hearing will result in the dismissal (without prejudice) of charges against the defendant, rather than merely the release of the defendant from custody.

The preliminary hearing has some of the attributes of a trial, but there are important differences. The most obvious difference is that the court does not decide guilt or innocence; it simply decides whether the case should proceed toward trial. In addition, the rules of evidence often do not apply, and in many states and the federal system, the use of hearsay is explicitly authorized. This means that the prosecution need not, and frequently will not, present the witnesses who will testify at trial, thereby limiting the value of the defendant's right of cross-examination. Evidence that was obtained illegally is also admissible at preliminary hearings in many jurisdictions. In its discretion, however, the court may require a showing that admissible evidence will be available at the time of trial.

Another important difference between a preliminary hearing and a trial is that the magistrate can limit the suspect's ability to present a defense. Defense counsel's cross-examination of the government's witnesses may be cut off if the magistrate believes that counsel is simply trying to obtain discovery of the prosecutor's case, or is trying to generate a credibility dispute. Because the purpose of the hearing is to weigh the sufficiency of the prosecutor's evidence, most courts will say that disputes about the facts, including questions of credibility, are the province of the trial jury and are not the proper subjects of questioning. These limits on the defense present no federal constitutional concerns, because the Supreme Court has ruled that the confrontation clause of the Sixth Amendment generally does not require that the accused be afforded the right of cross-examination at a preliminary hearing.

Under the same reasoning, magistrates may limit or prevent testimony or cross-examination that is designed to elicit information regarding affirmative defenses; while these defenses could lead to an acquittal at trial, in many jurisdictions courts will find that they do not negate the existence of probable cause. In other jurisdictions, however, magistrates will permit the suspect to present evidence of affirmative defenses, and may even make limited credibility findings. These courts reason that for the preliminary hearing to serve its intended role, charges that appear to have little chance of success at trial should be promptly dismissed.

At the close of the hearing, the magistrate decides if there is probable cause to continue the case. The precise meaning of probable cause in this context is unclear. Many courts use the same standard that is required to sustain an arrest, but others use a more rigorous standard. In the latter jurisdictions the magistrate will find probable cause only if the prosecutor establishes a prima facie case of guilt, that is, when the evidence presented, if unexplained, would warrant a conviction at trial.

If the magistrate finds probable cause, the case is "bound over." In jurisdictions where grand jury review is required, the case is bound over to the grand jury. Note that the outcome of the preliminary hearing has no effect on the grand jury's decision; even if the magistrate found probable cause, the grand jurors may choose to indict, not indict, or indict for a different offense.

Where the use of grand juries is not required, or when the defendant waives that right, a finding of probable cause results in the case being bound over for trial. The prosecutor files an information in the trial court, formally setting forth the charges on which the defendant will be tried. A defendant who wishes to challenge the magistrate's finding of probable cause normally may seek review by the trial judge having jurisdiction over the case.

If the magistrate finds that probable cause is lacking, the charges are dismissed and the suspect is discharged. Because jeopardy has not attached at a preliminary hearing, a defendant who is discharged is still subject to rearrest and reprosecution for the same offense. Although the prosecution may ask the trial judge to review the magistrate's decision not to bind the case over, it may also simply file new charges and seek another preliminary hearing—often presenting new and more detailed evidence—or bypass the preliminary hearing entirely and present the case to the grand jury, as described below.