PRELIMINARY HEARING

A proceeding before a judicial officer in which the officer must decide whether a crime was committed, whether the crime occurred within the territorial jurisdiction of the court, and whether there isprobable causeto believe that the defendant committed the crime.

After the police have arrested a crime suspect, the suspect is entitled to a preliminary hearing. Designed as a safeguard against unreasonable arrest and detention, the hearing is conducted to determine whether there is sufficient evidence to hold the defendant for trial. State and federal rules of criminal procedure provide for when a hearing must be held and what issues must be raised, which depend in large part on whether the crime is a misdemeanor, gross misdemeanor, or felony.

The most common preliminary hearing is the initial appearance, which is also called the first appearance. Various procedural steps may be taken during the initial appearance. In minor misdemeanor cases, the initial appearance may be the only one, if the defendant pleads guilty. When the charge is more serious, the accused at the initial appearance may be informed of the charges, advised of the right to counsel and the right to remain silent, warned that any statement made may be used against the suspect in court, and advised of how to seek release on bail. In some jurisdictions, including the federal courts, a plea may be entered and bail may be set at this first appearance. In other jurisdictions, the suspect will not be allowed to make a plea if the offense is a felony or gross misdemeanor, and a preliminary hearing, also called a preliminary examination, will be promptly scheduled.

The U.S. Supreme Court, in Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), mandated that persons arrested without a warrant and held by the police must be given a preliminary hearing to determine if there is probable cause. Probable cause means that a reasonable ground exists for belief in the facts, and the hearing examines whether a prudent person would believe that the suspect committed the offense in light of those facts. In County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991), the Court made it a constitutional requirement that a prompt judicial determination of probable cause follow a warrantless search. It ruled that a determination must be made without unreasonable delay, and in no event later than forty-eight hours after arrest. Therefore, all state and federal warrantless arrests must comply with the holdings of Gerstein and County of Riverside.

In gross misdemeanor and felony cases there is typically a second appearance, which is known as the preliminary hearing or preliminary examination. Rule 5(c) of the Federal Rules of Criminal Procedure and state rules of criminal procedure follow essentially the same process for this type of hearing. Unlike the informality of a first appearance, the preliminary hearing is an adversarial proceeding, which includes the prosecutor and the defendant's attorney. This hearing tests the existence of probable cause early in the proceedings by allowing the introduction of evidence, the examination and cross-examination of witnesses, and limited forms of discovery (the disclosure of information). Although the features of a preliminary hearing or examination are similar to those of a trial, the hearing is confined to determining whether the defendant should stand trial or be released. A defendant may challenge the constitutionality of police actions, including searches, seizures, and confessions. Under the federal rules, this hearing must be conducted within ten days of the initial appearance if the defendant is in police custody, and within twenty days if the defendant is not in custody.

In felony cases in states where the grand jury indictment is used to start a criminal proceeding, defendants often waive the preliminary hearing, because the grand jury will make the probable cause determination. However, some defendants request a preliminary hearing because it allows them to gain information about the basis of the prosecution's case or to move for dismissal of the case. For example, o. j. simpson requested a preliminary hearing in 1994 after being charged with two counts of first-degree murder. Although Simpson's attorney, robert shapiro, failed to secure a dismissal, he was able to elicit information from police and forensic witnesses that proved valuable at Simpson's 1995 murder trial, which ended in Simpson's acquittal.

further readings

Battelle, Anthony E. 1999. "Management of the Preliminary Hearing Under Construction Rule L-4 for Large, Complex Cases." Dispute Resolution Journal 54 (February 1): 23.

Hammock, Edward R. 1997. How to Handle Your First Criminal Trial. New York: Practising Law Institute.

Klotter, John C. 2002. Legal Guide for Police: Constitutional Issues. 6th ed. Cincinnati, Ohio: Anderson Pub.