The Basics of Preliminary Hearings

What is a preliminary hearing?

In Denver criminal defense, a preliminary hearing is a pre-trial proceeding that occurs in a lower court than the court in which the case will ultimately be tried. During the preliminary hearing, the prosecution must demonstrate that there is probable cause that both a crime was committed and that the defendant was the person who committed it.

What is the definition of probable cause?

Probable cause is defined as when a person of ordinary prudence is able to entertain a reasonable belief that the defendant committed the crime charged. Essentially, this means that if an ordinary person believes that the alleged crime reasonably could have taken place based on the presented evidence, then there is probable cause. This is in stark contrast to the burden the prosecution has at trial to prove the case beyond a reasonable doubt.

What is the purpose of a preliminary hearing?

First, it must be understood that a preliminary hearing is not a mini-trial, although it is often described in that way. This means that the preliminary hearing is not meant to be used as a tool for the defense to discover the prosecutor’s case or any additional information. Instead, the preliminary hearing serves as an important safeguard for the rights of criminal defendants. It gives the defendant and their counsel an opportunity to expose criminal charges as baseless before large amounts of resources are devoted to litigating the case.

Who is eligible for a preliminary hearing?

Anyone charged with a class 1, 2, or 3 felony is eligible for a preliminary hearing. Additionally, defendants charged with a class 4, 5, or 6 felony may be eligible if they are currently in the custody of law enforcement or if the charged crime is either a violent crime or a sexual offense. However, if a defendant has already been indicted by a grand jury, they are likely not eligible for a preliminary hearing as the two legal processes accomplish substantially the same thing.

What kind of evidence is allowed at a preliminary hearing?

Since the preliminary hearing is not a mini-trial, the scope of the evidence allowed is focused solely on that which establishes probable cause. Additionally, evidence not usually permissible at trial, may be permitted into evidence at a preliminary hearing as judges can relax the rules of evidence as they see fit. This is because the prosecutor must be given every chance to establish probable cause in the case. For this reason, and due to the legal definition of probable cause, the evidence must also be viewed in the light most beneficial to the prosecutor’s case.

What are the potential outcomes of a preliminary hearing??

There are two potential end results. If it is determined that probable cause exists for any or all of the crimes charged, then the case is bound over—or transferred—to a higher court with only the charges for which probable cause was established. This means that some charges may ultimately be dropped even though the case does not get dismisses entirely. On the other hand, the court may determine that probable cause does not exist for any of the charges and the case will be immediately dismissed in full. However, more often than not, preliminary hearings are waived by the defendant entirely.

Why would the defendant waive a hearing meant to protect their rights?

Often—regardless of whether the case can be won at trial—there is clearly probable cause. Therefore, to proceed with a preliminary hearing is most likely to be an unnecessary use of everyone’s time and resources. Instead, the prosecution can negotiate a deal with defense counsel and the defendant to waive their right to a preliminary hearing. These deals can result in a promise of a significantly reduced maximum potential prison sentence if the defendant is convicted. For example, a defendant may be looking at a maximum of 40 years in prison if found guilty. However, the prosecutor may promise that if the defendant waives their preliminary hearing, their maximum potential sentence will be reduced to 10 years. While the defendant neither pleads guilty nor wins the case, it is for this reason that waiving a preliminary hearing may be in the defendant’s best interests. In fact, this scenario is the most likely to occur as around 90%-95% of preliminary hearings are ultimately waived.