Preliminary Hearing

The vast majority of cases presented at a preliminary hearing are bound over. This has raised the question whether these hearings serve as an effective screen against unfounded charges.

Critics have suggested that the high rate of bindover decisions show that the magistrate gives only superficial, deferential review to the prosecutor's evidence. On reflection, however, it is obvious that the question is more complicated than the simple bindover rate would suggest. Prosecutors know that the case will be subject to pretrial review, and have every incentive to eliminate weak charges before presenting the case to the magistrate. Thus, the high bindover rate might demonstrate that preliminary hearings are a great success; under this view, most of the screening is done by the prosecutor before the preliminary hearing even begins.

Whether preliminary hearings are an effective screen or simply a rubber stamp on the prosecutor's charging decision depends on the extent to which magistrates have the ability to spot weak cases when they are presented. The magistrate's ability in turn depends on the procedures that are followed at the preliminary hearing. In general, the more the hearing procedures replicate those that will be followed at trial, the more difficult it will be for the prosecutor to establish probable cause, and the more likely the magistrate to find that a case should be dismissed.

Scholars have identified a number of variations in preliminary hearing procedures that will effect the screening function. Among the more important: (1) the extent to which cases in the jurisdiction are plea bargained before the preliminary hearing; (2) the extent to which prosecutors carefully evaluate their cases before the preliminary hearing, rather than using the hearing itself as a means of evaluating the charges; (3) the time and attention magistrates give a preliminary hearing; in busy jurisdictions, the court may only be able to spend a short amount of time on each hearing, necessarily leading to more abbreviated consideration; (4) the extent to which the prosecutor can introduce hearsay and other evidence that would be inadmissible at trial; (5) whether defense counsel is permitted to introduce affirmative defenses at the preliminary hearing.