A preliminary hearing is a process in the criminal court system where the judge determines whether there is enough evidence to proceed with a trial. In California, preliminary hearings generally occur 10 business days after you plead not guilty or after your arraignment. In some instances, your attorney may waive your right to a preliminary hearing or the court may decide to continue on without one.
Once the preliminary hearing begins, there are two over-arching questions that the court must decide: 1) was there a crime committed; and 2) were you the one that committed the crime? In a preliminary hearing, the onus is on the prosecutor to prove both of these questions (known as the “burden of proof”). The prosecutor’s burden of proof at this stage is “probable cause,” a lesser burden than “beyond a reasonable doubt” which is the burden at a criminal trial. The prosecutor must prove probable cause both that a crime was committed and that the defendant was the one responsible for committing the crime.
During the hearing, your attorney will have the opportunity to present evidence and witnesses, and cross-examine the prosecution’s witnesses. The judge has the ability to reduce certain felonies to misdemeanors or dismiss some of the charges against you after hearing all of the evidence. However, the judge also has the authority to bring additional charges against you, if the potential for additional charges is raised during the presentation of evidence from either side.
If the prosecutor fails to show probable cause, the judge can either dismiss your case or dismiss certain aspects or charges of your case. If the judge believes that probable cause has been proven, then your case will move forward in 15 days for more pre-trial proceedings.
A defendant’s rights during a preliminary hearing
A defendant is guaranteed many rights during a preliminary hearing. These rights include:
- The right to be represented by an attorney or have an attorney appointed to you by the court if you cannot afford to hire one
- You have the right to attend your hearing
- You have the right to be free from handcuffs or other restraints
- The right to cross-examine witnesses
- The right to present your own witnesses
How an attorney can help you during a preliminary hearing
Having a qualified criminal defense lawyer at your side during a preliminary hearing can help in several ways. First, an attorney will cross-examine all witnesses against you and their answers will be on the record; thus, if the witness gives a different answer at trial, the attorney can have that piece of testimony thrown out. Second, the attorney can present evidence that will bolster your side and reduce the likelihood of a probable cause finding. Third, the attorney has several options of motions that can be filed such as a motion to suppress evidence that can make it easier for your case to be dismissed. By protecting your rights, the attorney can greatly increase your chance of getting your case dismissed or your charges reduced.
Obtain your free case evaluation
Those who have been arrested in Southern California can obtain a free case evaluation from the attorneys at the Law Offices of Randy Collins by calling (888) 250-2865 or filling out our contact form. Attorney Collins has a “Superb” attorney rating on AVVO and was a former prosecutor. Call today to get help.