What is a “Preliminary Hearing” and Should I Waive My Right to One?

What is a “Preliminary Hearing” and Should I Waive My Right to One?

For criminal charges of Class A misdemeanors and higher (more serious), the person charged—the “Defendant”—has a right to what’s called a Preliminary Hearing.

Preliminary Hearings are also called “Preliminary Examinations,” and they resemble abbreviated trials in which witnesses offer testimony in order to provide evidence that the crimes charged were indeed committed, and that they were committed by the Defendant.

Preliminary Hearings, as their name suggests, take place early in the criminal justice process. Defendants only have a right to a Preliminary Hearing (or “Prelim”) if they have been charged with at least one Class A misdemeanor or higher (more serious). The scale of crime severity is as follows (moving down from most serious to least serious):

–       1st Degree Felony

–       2nd Degree Felony

–       3rd Degree Felony

–       Class A misdemeanor

–       Class B misdemeanor

–       Class C misdemeanor

–       Infraction

For any case in which a Defendant has been charged with at least one crime above the line, that Defendant is entitled to a Prelim on all of their charges.

In a Prelim, as in a full criminal trial, the State (or prosecutor) bears the burden of proof. The burden of proof in a Prelim is much lower than the burden the State would bear at trial. At trial, as we’ve all heard, the State must prove beyond a reasonable doubt that the Defendant committed the crime(s) charged. At a Prelim, the State only needs to show that there is probable cause to believe that the Defendant committed the crimes charged.

If the State can show probable cause, then the Defendant will be “bound over” for trial – meaning their case will not be dismissed for lack of evidence, and the charges will move forward toward trial. The State “must show ‘probable cause’ at a preliminary hearing by presenting sufficient evidence to establish that the crime charged has been committed and that the defendant has committed it.” State v. Clark, 2001 UT 9, ¶ 10. Additionally, “the evidence required to show probable cause is relatively low because the assumption is that the prosecution’s case will only get stronger as the investigation continues.” Id.

This is all to say that the State’s burden at a Prelim is quite low. Often, Defendants waive their right to have a Prelim. But why?

Very few cases are dismissed because the State fails to meet its ‘probable cause’ burden. It’s exceedingly rare, even. And sometimes the State’s “plea bargain” offer expires once a Defendant decides to hold a Prelim. Whether that’s fair play or not, it happens.

An attorney can help to navigate these issues and help a Defendant to recognize if and when it makes sense to hold a Prelim. A Prelim is an important right for criminal Defendants, and it should not be waived lightly. 

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