A preliminary hearing is a court hearing conducted before trial in which a defendant can challenge whether the prosecution has probable cause that the defendant committed the crime in question. The preliminary hearing serves as a screening mechanism to ensure that the proper cases go forward to trial. At the end of the preliminary hearing, the judge decides whether there is enough evidence for the case to go forward.
It depends on individual state law. Some states require preliminary hearings in most all cases. Other states require preliminary hearings in certain felony cases. For example, Colorado provides that all defendants charged with a class 1, 2, or 3 felony have a right to demand a preliminary hearing.
In South Dakota, a defendant has a right to a preliminary hearing if charged with a felony or the most serious type of misdemeanor charge. The South Dakota law provides: "No defendant is entitled to a preliminary hearing unless charged with an offense punishable as a felony or class 1 misdemeanor."
In some cases, the defense attorney may hope to dismiss the case altogether by showing that the prosecution does not have probable cause to believe that the defendant committed the crime. In other words, sometimes the goal for the defense at the preliminary hearing is victory - getting the charges dismissed by a judge.
Other times, however, the defense might use the preliminary hearing to see what types of witnesses and/or evidence the prosecution has. In other words, defense attorneys sometimes use the preliminary hearing as a strategic testing ground to find out more about the prosecution's case.
Yes, a defendant can waive a preliminary hearing. In some cases, the defendant may intend to plead guilty and does not wish to attract any more publicity or attention to a case.
A grand jury is a body of citizens, usually in groups of 16 to 23, who decide whether a prosecutor has presented enough evidence to obtain an indictment of an individual. Grand juries are designed to serve as a type of buffer between the prosecution and the defendant. Critics charge that grand juries - more often than not - do not serve this ideal buffering function and instead serve as a rubber stamp for the prosecution.
Grand juries are distinct from trial juries - or petit or trial juries - which usually consist of 12 people. Sometimes prosecutors use the grand jury method of initiating criminal charges against individuals, rather than filing what an accusatory document - called an information - and proceeding with a preliminary hearing.
The grand jury serves as a screening mechanism to determine whether the prosecutor has enough evidence to obtain what is known as a true bill. If the grand jury decides there is no evidence, it would issue what is called a no bill. Grand juries are used in federal court and in some states. Most states explain the operational workings and functions of the grand jury in their rules of criminal procedure.
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