Saturday, December 14, 2013

What is a preliminary hearing?

A preliminary hearing is one of many hearings in the process of defending an accusation of criminal conduct. Outside of the actual trial of the case, it can also be one of the most important. For a blog on preliminary hearing strategy click here.

Virginia Code § 19.2-218 states "No person who is arrested on a charge of felony shall be denied a preliminary hearing upon the question of whether there is reasonable ground to believe that he committed the offense ...." This means that in the Commonwealth of Virginia every person charged with a felony has a statutory right to a preliminary hearing.

Practically speaking, the preliminary hearing will take place in the General District Court in the jurisdiction where the accused is scheduled to be tried. The Commonwealth's Attorney will call witnesses who will testify to underlying facts and evidence. The defense attorney will have an opportunity to cross examine these witnesses, and a Judge will then decide whether there is sufficient probable cause to certify the matter to Circuit Court for trial.

It is important to understand that the standard by which a Judge reviews the evidence is one of probable cause and not reasonable doubt. Many an accused leave a preliminary hearing confused and expecting the charges to be dropped before trial because the Commonwealth's witnesses leave the stand without testifying to more than a bare minimum of facts and evidence. But, probable cause is a standard well below the high standard of reasonable doubt. In fact, depending on the charge, the facts, and the witnesses, very little evidence needs to be produced by the witnesses for the Commonwealth to reach the burden of probable cause.

Does this mean a preliminary hearing is a waste of time, or insignificant? By no means! At a preliminary hearing the defense attorney has the freedom to question every witness put on by the Commonwealth. And, any attorney worth their salt will relish at the idea of doing so., Other than the trial, the preliminary hearing is likely to be the only opportunity for the defense attorney to question a witness. It is also a good gauge of how a witness will react to difficult questions, and what evidence they actually have against an accused. If the evidence is weak, has procedural defaults, or a witness is not credible, an attorney for the accused may have the charges dismissed altogether. If the Commonwealth has "over charged" an accused, or has no factual basis for a felony charge, the Judge may also find an accused guilty of a misdemeanor rather than the felony charged.  

Finally, it is important to understand that the statutory right to a preliminary hearing only applies to felonies There is no right to a preliminary hearing in a misdemeanor case; however, the trial of the misdemeanor can fulfill all the purposes of a preliminary hearing and more. Virginia has an absolute right to appeal from the General District Court to the Circuit court in misdemeanor cases. The appeal is heard de novo, which means it is equivalent to a new trial. 

Remember, in Virginia an accused has a statutory right to a preliminary hearing. Practically speaking it takes place in the General District Court and provides a defense attorney the opportunity to cross examine the witnesses for the Commonwealth. Finally, the right to a preliminary hearing only applies when accused of a felony and not a misdemeanor. 

If you have any questions about preliminary hearings, or other criminal procedure matters, please feel free to contact the author through his website at

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