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A preliminary hearing is a probable cause determination by the court. In Illinois and Missouri, preliminary hearings are held in the associate level court, which is the lower-level court for criminal cases. Associate court is where a person will be initially arraigned (see the judge) after an arrest, where they will have a bond or bail setting, and lastly where a preliminary hearing is conducted. If probable cause is established in the case, it will be transferred to the higher-level circuit court for a final outcome.
– When would I have a preliminary hearing?
– Who is at the preliminary hearing?
– What happens at a preliminary hearing?
– What is Probable Cause?
– What happens after the preliminary hearing?
– What if my preliminary hearing is continued?
– What is a waiver of preliminary hearing?
– What would Worman Law do and why is it important?
When would I have a preliminary hearing?
Preliminary hearings only happen on felony cases; they are not conducted for cases only involving misdemeanor charges. In Missouri, per Supreme Court Rule 22.09, a preliminary hearing shall be held within a reasonable time, but no later than thirty days after a person’s initial arraignment if they are in custody (jail) and no later than sixty days if they are not in custody. The court is allowed to extend these time periods for good cause. Additionally, the court may continue a preliminary hearing one or more times, again up to thirty days if the person is locked up and up to sixty days if they are out of custody.
Who is at the preliminary hearing?
Preliminary hearings are held in open court. They are presided over by an associate judge. The prosecutor representing the state will be there. The defendant is usually required to be present in person unless they are appearing by video or have had their appearance waived for some reason. The defense attorney is present with their client. Any witnesses called for the hearing would be present during their testimony. Since it is an open court room, the gallery is open to the public who can watch the proceedings.
What happens at a preliminary hearing?
At a preliminary hearing, the prosecutor, representing the state, will present evidence to the judge. This evidence is usually in the form of witness testimony. The prosecutor will subpoena people to testify. That testimony can be from the police involved in the case, alleging victims, eyewitnesses, or other people who may have knowledge about the alleged incident. Witnesses are sworn-in and are under oath to tell the truth. The prosecutor will do what is called direct examination, basically asking those testifying what happened and establishing the facts of the case. The defense attorney will then be given the opportunity to cross-examine those testifying about the alleged incidents as well as call their own witnesses if it is deemed necessary. After direct and cross examination, the attorneys for both sides are able to make their arguments to the judge about whether probable cause exists in the case. The judge will then make their ruling as to probable cause.
What is Probable Cause?
Probable cause is the legal standard of proof for the preliminary hearing. In the most basic terms, is it more likely than not likely that the crime was committed, and the defendant committed that crime. The prosecution must show that the charges are based on specific facts and circumstances and not just mere suspicion. Probable cause is not the same as beyond a reasonable doubt, which is the legal standard required for a felony conviction at trial for a criminal case.
After the preliminary hearing, the judge decides whether probable cause exists to believe that a felony was committed. Most of the time, the judges will make their ruling immediately in court, however occasionally they will take the matter under advisement and issue a ruling later. During that time, the judges will review applicable law, the evidence presented at the hearing, and the attorney’s arguments before making their decision. If probable cause is established, the court will bind the case over to the higher-level circuit court where a new judge will be assigned, and the case will stay there until a disposition is reached after a trial or a guilty plea. If probable cause is NOT established, the court will dismiss the case. The court can dismiss all of the counts, if there are more than one, or find probable cause on some counts, but not others. If the case is dismissed, it is not with prejudice and the prosecution has the ability to re-file the charges provided they are within the statute of limitations for those charges.
What if my preliminary hearing is continued?
Preliminary hearings can be continued for a variety of reasons. If it is continued by the state, it is usually due to witnesses being unavailable. Generally, the court will not let the state continue preliminary hearings multiple times without good cause. Repeated requests from the prosecution to continue a preliminary hearing because they are not ready can lead to the case being dismissed for a failure to prosecute. Continuances by the defense attorney are usually to allow more time for the investigation of the evidence and case.
What is a waiver of preliminary hearing?
A person can choose to waive their preliminary hearing. A waiver of preliminary hearing is NOT an admission of guilt and is NOT a guilty plea. If a preliminary hearing is waived, no hearing is held, no witnesses testify, there is no judge determination on probable cause. Preliminary hearings can be waived for a variety of reasons, but common reasons include speeding up the court process, preservation of a plea offer from the state that is contingent on a waiver, or simply the defendant not wanting to have one.
Preliminary hearings are a great way to initially assess the strength of the state’s case against you. Worman Law would investigate your case and review the state’s evidence prior to court in preparation for the hearing. The preliminary hearing allows us to see which witnesses are going to show up to court and what they are going to say. It allows us to cross examine those witnesses to see if their stories are believable or make sense. We will make arguments to the court about the case and any lack of probable cause to push for a dismissal.
If you or a loved one have an upcoming preliminary hearing, contact Worman Law, LLC. at (314) 695-9529 (WLAW) to discuss your case with an attorney.
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