Preliminary hearing
Encyclopedia
Within some criminal justice system
s, a preliminary hearing (evidentiary hearing) is a proceeding, after a criminal complaint
has been filed by the prosecutor, to determine whether there is enough evidence to require a trial. In the United States, the judge must find there is probable cause
that a crime was committed.
At such a hearing, the defendant
may be assisted by counsel
; in U.S. jurisdictions, there is a right to counsel at the preliminary hearing. A preliminary hearing is not always required. In the U.S., if the defendant is charged with a federal felony, [s]he has the right to an indictment by a grand jury
pursuant to the Fifth Amendment of the Constitution. The defendant is not entitled to counsel at grand jury proceedings, and indeed may not even know that a grand jury is considering his or her case.
The conduct of the preliminary hearing as well as the specific rules regarding the admissibility of evidence vary from jurisdiction to jurisdiction. Hearsay is typically allowed. Should the court decide that there is probable cause, a formal charging instrument (called the information
in some jurisdictions) will issue; and the prosecution will continue. If the court should find that there is no probable cause, then typically the prosecution will cease. Many jurisdictions, however, allow the prosecution to seek a new preliminary hearing, or even seek a bill of indictment from a grand jury.
Some important questions that such a hearing generally addresses are:
If a judge determines that there is sufficient evidence to believe that the defendant committed the crime, it is said that the defendant is "held to answer" or "bound over" (in U.S. jurisdictions).
After the court holds a defendant to answer, the court schedules an arraignment
. The prosecutor files a new pleading with the court (sometimes called an "information") and the defendant can enter a plea at the arraignment. If that plea is not guilty, a trial normally follows and the court gives the defendant the trial date at this arraignment.
Criminal justice
Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts...
s, a preliminary hearing (evidentiary hearing) is a proceeding, after a criminal complaint
Complaint
In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In...
has been filed by the prosecutor, to determine whether there is enough evidence to require a trial. In the United States, the judge must find there is probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
that a crime was committed.
At such a hearing, the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
may be assisted by counsel
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
; in U.S. jurisdictions, there is a right to counsel at the preliminary hearing. A preliminary hearing is not always required. In the U.S., if the defendant is charged with a federal felony, [s]he has the right to an indictment by a grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
pursuant to the Fifth Amendment of the Constitution. The defendant is not entitled to counsel at grand jury proceedings, and indeed may not even know that a grand jury is considering his or her case.
The conduct of the preliminary hearing as well as the specific rules regarding the admissibility of evidence vary from jurisdiction to jurisdiction. Hearsay is typically allowed. Should the court decide that there is probable cause, a formal charging instrument (called the information
Information (formal criminal charge)
Information is a formal criminal charge made without a grand jury indictment by a prosecutor in a document called an information.The term is used in Canada and various other common law jurisdictions, including a number of U.S...
in some jurisdictions) will issue; and the prosecution will continue. If the court should find that there is no probable cause, then typically the prosecution will cease. Many jurisdictions, however, allow the prosecution to seek a new preliminary hearing, or even seek a bill of indictment from a grand jury.
Some important questions that such a hearing generally addresses are:
- Did the alleged crime occur within the court's jurisdictionJurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
? - Is there probable causeProbable causeIn United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
, to believe that the defendantDefendantA defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
committed the crime?
If a judge determines that there is sufficient evidence to believe that the defendant committed the crime, it is said that the defendant is "held to answer" or "bound over" (in U.S. jurisdictions).
After the court holds a defendant to answer, the court schedules an arraignment
Arraignment
Arraignment is a formal reading of a criminal complaint in the presence of the defendant to inform the defendant of the charges against him or her. In response to arraignment, the accused is expected to enter a plea...
. The prosecutor files a new pleading with the court (sometimes called an "information") and the defendant can enter a plea at the arraignment. If that plea is not guilty, a trial normally follows and the court gives the defendant the trial date at this arraignment.
See also
- Grand juryGrand juryA grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
- Committal procedureCommittal procedureIn law, a committal procedure is the process by which a defendant is charged with a serious offence under the criminal justice systems of all common law jurisdictions outside the United States...