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Your right to a preliminary hearing

Shortly after your initial appearance, you will be entitled to a preliminary hearing or examination at which the prosecution must introduce sufficient evidence to justify holding the case for court (also known as “bind over”). You have a Sixth Amendment right to the assistance of counsel at this preliminary hearing.

While a preliminary hearing is not required by the Constitution, the Fourth Amendment does entitle you to some judicial review of probable cause if you are detained beyond 48 hours. An arrested person must receive a probable cause determination within 48 hours unless the prosecution establishes a bona fide emergency or other extraordinary circumstance.

You have a right by statute to cross-examine the prosecution’s witnesses at the preliminary hearing.

Preemption by grand jury indictment

If a charging grand jury is available, a prosecutor can preempt the preliminary hearing by obtaining a grand jury indictment within the time set for a preliminary hearing. Therefore, if possible, your defense attorney should schedule the preliminary hearing quickly, before the prosecutor can present the case to a grand jury.

However, your attorney will need to consider a prosecutor’s threats that if forced to indict sooner, rather than later, he or she will indict on the highest charge or will charge a mandatory minimum that may be difficult to waive in subsequent plea negotiations. Your attorney will need to look into any office policy and local custom to ascertain if the threats are real.


The magistrate usually sets the preliminary hearing date at the initial appearance or arraignment. If no date has been issued, your attorney should file a written demand to set a hearing. Under the law of some states, the right to a hearing will be waived if not invoked.

Failure to hold a timely preliminary hearing will result in your release, but not in dismissal of the charges.

If your attorney needs more time to prepare, he or she can seek a short postponement of the preliminary hearing. You will need to stipulate that the time should be excluded under the speedy trial statute.

The standard of proof

The standard of proof varies by jurisdiction:

  • In some jurisdictions, the standard of proof at the preliminary hearing is probable cause.
  • In other jurisdictions, the prosecution must establish a “prima facie” case, a standard that is somewhat higher than probable cause.

The prima facie standard requires the prosecution to establish probable cause to believe that you committed the offense, and to present evidence supporting each of the material elements of the charge.

However, both standards demand something more than the probable cause needed to search or arrest, because the preliminary hearing serves as a screening device to select those cases in which the evidence is substantial enough to bind the case over for trial and restrain the defendant’s liberty, either by bail conditions or detention.

If testimony conflicts or the magistrate can draw any of several inferences, the magistrate must accept the prosecution’s version.

The arresting officer

The word and recommendation of the arresting officer carry great weight with most magistrates. District justices are just as often retired police officers as they are lawyers. They work and may share office space with the police. Therefore, before the hearing, your criminal defense attorney should approach the arresting or investigating officer and pitch his or her assessment of the case to the officer.

The officer may have doubts about the victim’s story and the value of the case. The officer might be willing to:

  • Clue your attorney into helpful concessions that he or she would be willing to make on the stand (e.g., the victim was noticeably intoxicated when he reported the offense).
  • Offer to persuade the victim to accept a non-criminal disposition, such as restitution.
  • Warn your attorney about pitfalls in certain lines of questioning.

However, it is just as likely that the officer may lobby your attorney to waive the hearing so the matter can be dealt with “downtown.” The officer’s motivation might range from the weakness of the case to the simple desire to avoid waiting all day in a crowded courtroom for the case to be called. In any event, your attorney should seldom waive the hearing.

The officer has already done as much harm to you as he or she can by arresting you and filing the complaint. Any frustration by the officer at your attorney’s refusal to waive the hearing will not worsen the situation appreciably.


There is a right to cross-examine to test the plausibility of the witness’s story and his or her willingness to adhere to it on cross-examination.

Magistrates will allow some leeway in this regard. Most recognize that an assessment of the victim or witness’s credibility is essential if they are to discharge their screening function. However, magistrates will have little patience for questions trying to show a witness’s general untrustworthiness, such as questions regarding the witness’s bias or motive or questions about the witness’s criminal record or uncharged acts of dishonesty. Such questions are meaningless in the preliminary hearing context, and it is best to avoid giving the witness practice at fielding the trial cross-examination.