Preliminary Hearing

At the first appearance, suspects in federal and some state cases are told that they have the right to a preliminary hearing. This right is statutory, for the Supreme Court has said that there is no constitutional right to such a hearing. As a result, the right can be, and typically is, subject to certain limits. Most importantly, if the prosecution obtains an indictment from a grand jury before the date of the preliminary hearing, the preliminary hearing is mooted. Thus, in judicial districts where grand juries are regularly convened, prosecutors have the ability to avoid preliminary hearings at will. Some jurisdictions also permit the filing of an information to moot the preliminary hearing, although the Supreme Court has cautioned that there must be some judicial finding of probable cause to justify prolonged detention of a suspect.

A suspect can waive his right to a preliminary hearing. If the evidence of guilt is strong enough to make the probable cause finding a foregone conclusion, a suspect might waive the hearing for several reasons. He may wish to avoid the adverse publicity associated with a public airing of the evidence; he may fear that once the prosecution presents the evidence, it will spot a curable defect in its case; or, he may worry that once the prosecution begins organizing the evidence to present at the hearing, it may realize that the initial charges against the suspect are too low. These risks lead large numbers of suspects (as many as 50 percent in some jurisdictions) to bypass the preliminary hearing.