What Happens at a Preliminary Hearing?

After the arraignment and before the trial, defendants can go through a preliminary hearing. It is optional, but it is something that you should take advantage of because the hearing can help you now and in the future.

The preliminary hearing is an important part of any criminal defense case, and it is a threshold that prosecutors must cross to continue the case against you. Essentially, a preliminary hearing is a mini-trial to see if there is sufficient evidence for you to be tried for any crimes with which you are charged.

Preliminary Hearings Are Meant to Establish Probable Cause

The preliminary hearing will happen very early in your case. According to Wisconsin law, it must be held within 20 days after your release from custody or within ten days when you are still being held in custody. The purpose of the preliminary hearing is to determine whether there is probable cause to proceed with the criminal case.

Probable cause is a lower standard than the one used when your case goes in front of a jury. When it comes time to determine guilt, the jury must decide that the defendant is guilty of the crime beyond a reasonable doubt. Probable cause is not explicitly defined in the Constitution. In practice, it means that there are facts that would lead a reasonable person to believe that a crime may have been committed.

Preliminary Hearings Are Very Similar to Trials

Even though a preliminary hearing happens at an early phase of the case, the prosecution will still need to present some evidence that shows probable cause. If they do not have this evidence, the judge will dismiss the charges, and the case will not continue.

If preliminary hearings seem a lot like trials, it is because they are. Prosecutors must put on evidence at the preliminary hearing. Instead of trying to persuade a jury to convict the defendant, they must convince the judge to allow the trial to continue.

Each side has the ability to call and question its own witnesses at a preliminary hearing. The defendant’s attorney can cross-examine the prosecution’s witnesses. In addition, the defense can call their own witnesses to testify, who will also be subject to cross-examination. Witnesses testify under oath the same way as at a full-fledged trial. The prosecution and defense also have the right to introduce their own evidence at the preliminary hearing.

Even with the ability to present evidence, a preliminary hearing will not take very long. Usually, the hearing may last for an hour or two. It can even be over in as little as a few minutes. In spite of the short period of time, preliminary hearings are more than just a formality in a case.

What the Defense May Accomplish at a Preliminary Hearing

As the defense, there are a few things that you might accomplish at the preliminary hearing:

• Show that you have an alibi
• Attack the credibility of a prosecution witness
• Show that the prosecution cannot prove one or more elements of the crime

The prosecution will make their case why the defendant should stand trial, while the defense will seek to sow enough doubt in the mind of the judge that they drop the charges. In these hearings, the burden of proof is on the prosecutor, although it is a lower burden of proof than they have at trial.

There are rules that are less strict on evidence that can be used at a preliminary hearing than there are if your case goes to trial. The defense does not have the right to object to evidence used at the preliminary hearing, even if it is something that cannot be shown to a jury at trial.

Preliminary Hearings Can Give You an Idea of the Case Against You

In all likelihood, the prosecution will show that there is probable cause to proceed with the criminal charges. However, you will still have every reason to participate fully in the preliminary hearing process. While the defendant has the right to waive the preliminary hearing, it is not in their interest to do so. Here, you always have a chance of persuading a judge to drop the charges. Even if the judge does not fully dismiss the case, they can dismiss some of the charges against you. In addition, you can get an early look at some of the prosecution’s case against you and begin to sow some doubt in the mind of the judge.

In many cases, the preliminary hearing is the first building block of the defense that will be used at trial. It is unlikely that you will take down the prosecution’s entire case in a brief preliminary hearing. However, a strong showing at the preliminary hearing can also persuade the prosecution that they may either need to drop some of the charges against you or begin to negotiate a more favorable plea bargain. In a criminal defense case, you rarely win everything all at once. Instead, it is a process as you work towards the most favorable outcome.

In any event, what happens at the preliminary hearing should give a defense attorney somewhat of a road map to build the defense for the trial. Therefore, you should hire an attorney before the preliminary hearing in enough time for them to prepare adequately.

Contact an Appleton Criminal Defense Lawyer Today

If you have been charged with a crime, it is in your best interests to hire an attorney as soon as possible so that you can be ready for something like the preliminary hearing. The attorneys at Hogan Eickhoff are here when you need us and able to work on your case at a moment’s notice. Call us at (920) 450-9800 or contact us online to schedule your free initial consultation. The sooner that you hire an attorney, the quicker that you may defend the charges against you at every stage of the case.