Preliminary Hearing

Criminal Procedure: Pretrial Events Preliminary Hearing or Indictment

Introduction to Preliminary Hearing

Under federal criminal procedure and in about half of the states, a person must be indicted (formally charged) by a grand jury before a felony trial can take place. Other states provide for a preliminary hearing, also called a preliminary examination, after the initial judicial appearance. In a few states a prosecutor may take a case to a preliminary hearing, or avoid that public process by going to a grand jury, which holds its proceedings in secret.

In both types of proceedings, a neutral body-either a group of citizens or a judge-reviews the case against the accused and decides whether he or she should be tried. These proceedings are designed to review the government’s decision to prosecute in order to prevent governmental abuse of power. If, after hearing the evidence, the presiding judge or grand jury finds there is probable cause to believe the accused committed the offense, legal proceedings against the accused continue. If the prosecution’s evidence is found insufficient, the charges are dismissed and the accused is released. However, the person can be rearrested and recharged if the prosecutors develop or find further evidence supporting the charge.

The grand jury typically hears only the evidence presented by the prosecution. The accused does not have a right to be present at grand jury proceedings, which are conducted in secret, or to present evidence or cross-examine the prosecution’s witnesses. However, some states permit someone under investigation to present evidence to the grand jury under certain circumstances. If the grand jury finds sufficient evidence to justify a trial on the crime charged, it issues an indictment-a formal document containing a plain statement of the facts constituting the offense charged.

A preliminary hearing is a public, adversarial proceeding in which the prosecution and the defense briefly present their cases to a judge. The accused, represented by counsel, is entitled to challenge the prosecution’s evidence and introduce evidence on his or her own behalf. The judge decides whether sufficient evidence exists to justify a trial. As an alternative to grand jury indictment, the prosecutor can issue an information, a document roughly equivalent to an indictment.

The indictment or information replaces the complaint as the formal charging document in the case. Once the formal accusation has been issued, the accused is referred to as the defendant. A copy of the accusation is given to the defendant before he or she is arraigned.” (1)

Resources

Notes and References

• Information about Preliminary Hearing in the Encarta Online Encyclopedia

Guide to Preliminary Hearing

In this Section

Pretrial Events, Investigation and Arrest, Pretrial Events Booking, First Judicial Appearance, Bail, Preliminary Hearing, Arraignment on the Indictment and Preparation for Trial.