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Within some criminal justice systems, a preliminary hearing, preliminary examination, evidentiary hearing or probable cause 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 that such evidence provides probable cause to believe that the crime was committed by the defendant.
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, and its requirement varies by jurisdiction. In the U.S., for example, some states hold these hearings in every criminal case; in others, they are held upon request by the defense, and still others, they are only held in felony cases. If, on the other hand, the defendant is charged with a felony under Federal law, the defendant has the right to an indictment by a grand jury pursuant to the Fifth Amendment to the Constitution as well as Title 18 of the United States Code. At grand jury proceedings, the defendant is not entitled to counsel present in the grand jury room (although witness may consult with counsel outside of the presence of the grand jury), and indeed may not even know that a grand jury is considering the 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:
- Is there probable cause to believe the alleged crime occurred and did it 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 precedes 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.
- In the United States, since a preliminary hearing is a "critical stage" of the proceeding, an indigent suspect is entitled to court-appointed counsel at the preliminary hearing. See Coleman v. Alabama, 399 U.S. 1 (1970).
- Portman, esq., Janet. "All About Preliminary Hearings, or "Prelims"". Nolo.com. Retrieved 22 October 2014.
- 18 U.S.C. §3060