A preliminary hearing is generally the step immediately following the arraignment in which the defendant pled not guilty. This “trial before the trial” is the chance for the prosecuting attorney to present the judge with evidence to establish a case against the defendant by bringing in witnesses and other material. The judge then determines if there is “substantial evidence” to hold a trial.

In his determination, the judge will listen to both sides’ attorneys to decide if the evidence is sufficient or insufficient. The judge’s duty is to weigh the evidence, determine witness credibility, and resolve conflicts of fact. When a judge determines something is a fact, it is binding on both sides moving forward. In California, the preliminary hearing must be held within ten court days of the arraignment or plea, and can list up to several hours. The length of the preliminary hearing is based on the judge’s ability to answer two vital questions:

  1. Whether there is enough probable cause to believe a crime was committed, and
  2. Whether there is enough probable cause to believe the defendant committed the crime.

The prosecutor has the burden to prove the answer to these questions is “Yes”. However, in a preliminary hearing, he only must prove there is probable cause to believe so, meaning an ordinary person would lean in that direction. Later, during a criminal trial, the burden is upped to proof beyond a reasonable doubt.

1st Step
Courtesy freedigitalphotos.net by Master

If the judge determines there is probable cause, the case is transferred to trial court. If he does not find probable cause, the individual charges which failed to meet the burden, or the case as a whole, may be dismissed.

The defense may request certain felony charges, those that are on the border between felonies and misdemeanors, be reduced to misdemeanors. This determination is one of discretion by the judge.

Finally, California does allow for Grand Jury Proceedings. In these cases, the suspect will not know the charges against him are being considered until a determination is made. Here, the prosecutor presents the case to a jury and asks them to find the charges justified. If they do so, the suspect is indicted, and a trial will follow.

If you or someone you know is facing criminal charges, or their professional license is at risk, contact Attorney Miranda McCroskey for an immediate consultation at (714) 389-2257 or email her at miranda@mccroskeylegal.com.

Miranda is a partner at Wilson Harvey Browndorf in Irvine, heading the criminal defense department.

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