United States
In the United States, at a preliminary hearing the judge must find that such evidence provides probable cause to believe that the crime was committed and that the crime was committed by the defendant. [4] There is a right to counsel at the preliminary hearing. [5]
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. If the court decides that there is probable cause, a formal charging instrument (called the information in some jurisdictions) will be issued, and the prosecution will continue. If the court does not find probable cause, then typically the prosecution will cease. [6] Many jurisdictions, however, allow the prosecution to seek a new preliminary hearing or to seek a bill of indictment from a grand jury. [7]
The key questions normally addressed at a preliminary hearing are: [6] [8]
- Is there probable cause to believe the alleged crime occurred, and did it occur within the court's jurisdiction?
- Is there probable cause to believe that the defendant committed the crime?
If a judge determines that there is sufficient evidence to believe that the defendant committed the crime, then it is said that the defendant is "bound over".
Terminology
Legal terminology varies between U.S. jurisdictions. In some jurisdictions, "preliminary hearing" may refer to a different type of hearing than is described in this article.
In criminal prosecutions, the court schedules an arraignment at which the charges are formally presented to the defendant. Several procedures must be done before the arraignment can happen. For example, in most states, the prosecutor first files an “information” document with the court. This filing describes the basic elements (the facts or factors) that make up the alleged criminal offense. Relatedly, the filing enumerates the criminal law(s) that the defendant allegedly violated. Finally, the defendant is scheduled for an arraignment which is when the charge is formally and openly presented. If the defendant pleads not guilty at the arraignment, the court schedules a preliminary hearing. [6]
Where an indictment is obtained through means other than an information document, such as through grand jury proceedings or after an arrest when the defendant is first brought to court, the arraignment may be referred to as an "initial hearing", [9] or "preliminary arraignment", [10] which is different from a preliminary hearing. Those other hearings are not probable cause hearings.
State law
A preliminary hearing is not always required, and some jurisdictions do not require it. Some states hold preliminary hearings in every serious criminal case. [11] Other states only have a preliminary hearing if the defense requests it; [12] Alternatively, some states only have them for felony cases. [13]
Federal law
If the defendant is charged with a felony under federal law, the defendant has the right to an indictment by a grand jury, pursuant to the Fifth Amendment to the Constitution and Title 18 of the United States Code. [14] At grand jury proceedings, the defendant is not entitled to have counsel present in the grand jury room (although witnesses may consult with counsel outside of the presence of the grand jury). In some cases, the defendant may not even know that a grand jury is considering the case. [15]
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