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Within some criminal justice systems, a preliminary hearing (evidentiary hearing) is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial. In the United States, the judge must find there is probable cause that a crime was committed.
In Scotland, a Preliminary Hearing is a non-evidential diet in cases to be tried before the High Court of Justiciary. It is a pre-trial diet to enable the court to be advised whether both parties, the prosecution and the defence, are ready to proceed to trial and may also deal with ancillary procedural matters.
At such a hearing, the defendant may be assisted by counsel; in U.S. jurisdictions, there is a right to counsel at the preliminary hearing. A preliminary hearing is not always required. In the U.S., if the defendant is charged with a federal felony, [s]he has the right to an indictment by a grand jury pursuant to the Fifth Amendment of the Constitution. The defendant is not entitled to counsel at grand jury proceedings, and indeed may not even know that a grand jury is considering his or her case.
The conduct of the preliminary hearing as well as the specific rules regarding the admissibility of evidence vary from jurisdiction to jurisdiction. Hearsay is typically allowed. Should the court decide that there is probable cause, a formal charging instrument (called the information in some jurisdictions) will issue; and the prosecution will continue. If the court should find that there is no probable cause, then typically the prosecution will cease. Many jurisdictions, however, allow the prosecution to seek a new preliminary hearing, or even seek a bill of indictment from a grand jury.
Some important questions that such a hearing generally addresses are:
- Did the alleged crime occur within the court's jurisdiction?
- Is there probable cause to believe that the defendant committed the crime?
If a judge determines that there is sufficient evidence to believe that the defendant committed the crime, it is said that the defendant is "held to answer" or "bound over" (in U.S. jurisdictions).
In some jurisdictions, after the court holds a defendant to answer, the court schedules an arraignment, while in other jurisdictions the arraignment proceeds the preliminary hearing. The prosecutor files a new pleading with the court (sometimes called an "information") and the defendant can enter a plea at the arraignment. If that plea is not guilty, a trial normally follows and the court sets a trial date at the arraignment or preliminary hearing, depending on which comes later.