Preliminary Hearing

(redirected from Evidentiary hearing)
Also found in: Dictionary.
Related to Evidentiary hearing: Preliminary hearing

Preliminary Hearing

A proceeding before a judicial officer in which the officer must decide whether a crime was committed, whether the crime occurred within the territorial jurisdiction of the court, and whether there is Probable Cause to believe that the defendant committed the crime.After the police have arrested a crime suspect, the suspect is entitled to a preliminary hearing. Designed as a safeguard against unreasonable arrest and detention, the hearing is conducted to determine whether there is sufficient evidence to hold the defendant for trial. State and federal rules of Criminal Procedure provide for when a hearing must be held and what issues must be raised, which depend in large part on whether the crime is a misdemeanor, gross misdemeanor, or felony.

The most common preliminary hearing is the initial appearance, which is also called the first appearance. Various procedural steps may be taken during the initial appearance. In minor misdemeanor cases, the initial appearance may be the only one, if the defendant pleads guilty. When the charge is more serious, the accused at the initial appearance may be informed of the charges, advised of the Right to Counsel and the right to remain silent, warned that any statement made may be used against the suspect in court, and advised of how to seek release on bail. In some jurisdictions, including the federal courts, a plea may be entered and bail may be set at this first appearance. In other jurisdictions, the suspect will not be allowed to make a plea if the offense is a felony or gross misdemeanor, and a preliminary hearing, also called a preliminary examination, will be promptly scheduled.

The U.S. Supreme Court, in Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), mandated that persons arrested without a warrant and held by the police must be given a preliminary hearing to determine if there is probable cause. Probable cause means that a reasonable ground exists for belief in the facts, and the hearing examines whether a prudent person would believe that the suspect committed the offense in light of those facts. In County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991), the Court made it a constitutional requirement that a prompt judicial determination of probable cause follow a warrantless search. It ruled that a determination must be made without unreasonable delay, and in no event later than forty-eight hours after arrest. Therefore, all state and federal warrantless arrests must comply with the holdings of Gerstein and County of Riverside.

In gross misdemeanor and felony cases there is typically a second appearance, which is known as the preliminary hearing or preliminary examination. Rule 5(c) of the Federal Rules of Criminal Procedure and state rules of criminal procedure follow essentially the same process for this type of hearing. Unlike the informality of a first appearance, the preliminary hearing is an adversarial proceeding, which includes the prosecutor and the defendant's attorney. This hearing tests the existence of probable cause early in the proceedings by allowing the introduction of evidence, the examination and cross-examination of witnesses, and limited forms of discovery (the disclosure of information). Although the features of a preliminary hearing or examination are similar to those of a trial, the hearing is confined to determining whether the defendant should stand trial or be released. A defendant may challenge the constitutionality of police actions, including searches, seizures, and confessions. Under the federal rules, this hearing must be conducted within ten days of the initial appearance if the defendant is in police custody, and within twenty days if the defendant is not in custody.

In felony cases in states where the Grand Jury indictment is used to start a criminal proceeding, defendants often waive the preliminary hearing, because the grand jury will make the probable cause determination. However, some defendants request a preliminary hearing because it allows them to gain information about the basis of the prosecution's case or to move for dismissal of the case. For example, O. J. Simpson requested a preliminary hearing in 1994 after being charged with two counts of first-degree murder. Although Simpson's attorney, robert shapiro, failed to secure a dismissal, he was able to elicit information from police and forensic witnesses that proved valuable at Simpson's 1995 murder trial, which ended in Simpson's acquittal.

Further readings

Battelle, Anthony E. 1999. "Management of the Preliminary Hearing Under Construction Rule L-4 for Large, Complex Cases." Dispute Resolution Journal 54 (February 1): 23.

Hammock, Edward R. 1997. How to Handle Your First Criminal Trial. New York: Practising Law Institute.

Klotter, John C. 2002. Legal Guide for Police: Constitutional Issues. 6th ed. Cincinnati, Ohio: Anderson Pub.

preliminary hearing

n. in criminal law, a hearing to determine if a person charged with a felony (a serious crime punishable be a term in the state prison) should be tried for the crime charged, based on whether there is some substantial evidence that he/she committed the crime charged. A preliminary hearing is held in the lowest local court (municipal or police court), but only if the prosecutor has filed the charge without asking the grand jury for an indictment for the alleged crime. Such a hearing must be held within a few days after arraignment (presentation in court of the charges and the defendant's right to plead guilty or not guilty). Since neither side wants to reveal its trial strategy, the prosecution normally presents only enough evidence and testimony to show the probability of guilt, and defendants often put on no evidence at all at the preliminary hearing, unless there is a strong chance of getting the charges dismissed. If the judge finds sufficient evidence to try the defendant, the case is sent to the appropriate court (variously called superior/county/district/common pleas) for trial. If there is no such convincing evidence, the judge will dismiss the charges. In the "Perry Mason" television series, the courtroom scenes were almost always of preliminary hearings. (See: arraignment, information, grand jury)

References in periodicals archive ?
1988), appears to be the earliest published, appellate decision in Florida that refers to a trial court conducting an evidentiary hearing on a motion for class certification.
Rather, an evidentiary hearing "is merely a threshold inquiry to ensure that the trier of fact is not called upon to rely in whole or in part on an expert opinion that is only masquerading as science.
Moreover, the court said, the very act of holding an evidentiary hearing created a hostile atmosphere for the litigating attorney.
FITCHBURG - The state Department of Public Utilities has granted the city the status of "limited participant" during the upcoming evidentiary hearings into Unitil's response to the December ice storm.
The dissenters said an evidentiary hearing should be held to examine the couple's intentions.
Brown and Wegner filed a notice of withdrawal of counsel two days after the evidentiary hearing closed.
Five years later, the presiding judge concluded an evidentiary hearing was warranted on the newly discovered evidence claim, requiring the new investigator again to locate relevant witnesses, charging $40 an hour for his services.
The district court held that the detainee was not entitled to an evidentiary hearing prior to the forcible administration of medication and that her due process rights were adequately protected.
Without Evidentiary Hearing Motion for Preliminary Injunction is Moot
Today the Puerto Rico Supreme Court ruled that an evidentiary hearing must happen on or before June 12, 2014, and that a judgment be issued on or before June 26, 2014.
A motion to correct a [begin strikethrough]any sentencing[end strikethrough] prejudicial error, [begin strikethrough]including an illegal sentence[end strikethrough] in a written sentence other than jail credit, because the written sentence 1) contains a term or condition that was required to be announced at the sentencing hearing and was not, 2) contains a term or condition that conflicts with the oral pronouncement, or 3) contains an error, that is conclusively revealed without need for an evidentiary hearing or of examination of anything other than the court file in the case, may be filed as allowed by this subdivision.
Fannin said the California Department of Transportation should find Tutor-Saliba to be a responsible bidder following an evidentiary hearing ordered to protect the public's interests.