A preliminary hearing, often called a "prelim," is a court hearing in a California felony case where a judge decides whether the prosecution has enough evidence, called probable cause, to move the case forward to trial. It is not a trial, and the judge does not decide guilt or innocence. If the judge finds probable cause, the defendant is "held to answer" and the case moves to superior court for arraignment on the charges. If not, the charges can be dismissed.
This is intended as a touchstone before a felony case is brought to trial. The prosecutor needs to present evidence to a judge which makes it more probable than not that a felony has occurred and that the defendant probably is responsible for it. It prevents individuals from being put to trial on unsupported charges.
Additionally, it provides something positive to the defendant –an early exposure of the case against him. All witnesses take the stand and are sworn in, and your attorney has the chance to cross-examine them. Their testimony is transcribed and can be used later to refute, negotiate, or impeach that witness at trial.
In California, a felony preliminary hearing must generally be held within 10 court days of the date you are arraigned or enter a plea, whichever is later. This rule comes from Penal Code § 859b. There are two main exceptions:
Many cases never reach a contested preliminary hearing at all, because the defense and the prosecution resolve the case first. That is why the timing and strategy around the hearing matter so much. Want to understand the step before this one? Read our guide to what happens at an arraignment in Van Nuys.
Every case is different, but a preliminary hearing usually follows this order:
The case is called. You appear with your attorney. You have the right to be present, and in custody cases you are brought in from jail.
The prosecutor presents evidence. This is usually the arresting or investigating officer and sometimes the alleged victim or other witnesses. The prosecutor can also introduce physical evidence, photos, reports or lab results.
The defense cross-examines. Your attorney questions each witness to expose inconsistencies, weak identifications, missing evidence or unreliable statements.
The defense may present evidence. This is allowed but rare, since the defense usually does not want to reveal its strategy this early.
Both sides argue. The attorneys argue whether the evidence meets the probable cause standard, and the defense may argue that particular charges or sentencing enhancements should be dismissed.
The judge rules. The judge either holds you to answer on some or all charges or dismisses them.
The hearing can be short or long depending on the charges. A simple case may take under an hour. A complex felony with many witnesses can take much longer.
The regular is probable cause or enough cause to think that the defendant committed a felony. That's a lot less than "beyond a reasonable doubt," which is the bar at trial.
In real life, the judge interprets the evidence in a way that benefits the state, so a prelim is an uphill battle for outright dismissals. That doesn't mean the hearing is a waste of time.
Strong cross-examination can:
Yes. Probable cause may be established in whole or in part on hearsay evidence by a suitably-trained law enforcement officer who heard the hearsay evidence, under Proposition 115, a 1990 initiative that amended Penal Code § 872. The officer would testify as to what the witness told the officer, without requiring the witnesses to testify in court.
There is a limit to this rule. The California Supreme Court in Whitman v. Superior Court (1991) upheld the hearsay rule, but wrote that an officer must have relevant qualifications and testify to evidence that circumstantial hearsay from an officer not assigned to the case might not be enough. Best defense attorneys know how to find these kinds of mistakes.
Held to answer ➖The judge finds probable cause on one or more charges. The prosecutor files a formal charging document (an "information") in superior court, and your case moves toward trial.
Charges dismissed ➖ Where the evidence fails to establish probable cause, the judge may dismiss some or all of the charges. There are a few limited situations when the government can refile the charges, so a dismissal may not be the end of the issue.
Felony reduced to a misdemeanor ➖ Certain crimes are "wobblers," and can be filed as either a felony or misdemeanor. PC § 17(b)(5) says a trial judge at the preliminary hearing stage can opt to treat a wobbler as a misdemeanor. That can have a big impact on the sentence and consequences.
Most Common Mistakes to Avoid Prior to a Preliminary Hearing
Sometimes a defendant waives the right to a preliminary hearing, often as part of a plea agreement or to move the case forward. This is a strategic decision that depends on the facts. Here is how the tradeoffs usually look:
A preliminary hearing might be one of the first major steps of a felony case. What your attorney says or does at the preliminary can influence the charges against you, possible plea arrangements and the ultimate resolution of your case.
Our attorneys are ready to get started on reviewing your case, letting you know what will happen at your preliminary hearing, and working toward a positive outcome.
Call (818) 641-5556 or request a free case evaluation.
Van Nuys Crime, 14401 Sylvan St #113, Van Nuys, CA 91401
Protecting your rights with dedicated legal defense, focused on achieving the best outcome for your case. Trust us to safeguard your future.
