What is a preliminary hearing?
There are criminal offenses that are not as serious or as grave as those that require proceedings before a grand jury. There are some cases when the police arrest an accused person in the act of committing a crime or arrests a person upon complaint of another person. The public prosecutor or district attorney will then issue a charge sheet indicating the criminal acts committed by the accused, and file this before the judge. The judge will then scrutinize the charging sheet or information for accuracy and sufficiency. The judge will do this during the preliminary hearing.
While the accused is in custody or even if the accused is already out on bail, the court will require the accused person to appear for a preliminary hearing. This is often the first appearance of the accused person in court. At the preliminary hearing, the judge will explain to the accused the charges against him. The judge will also explain to the accused person what his rights are under the charges. If the charging sheet, indictment or information is deficient, the judge may dismiss the charges or give the prosecution the opportunity to present evidence that the indictment or information is sufficient.
Does the accused have to appear at the preliminary hearing?
Yes, it is required for the accused person to attend and appear at the preliminary hearing. The court will usually issue an order requiring the accused to appear with a lawyer at the preliminary hearing. If the accused is out on bail and he failed to appear, the judge will revoke the bail and issue a bench warrant to order the police to bring the accused to appear in court.
Why does the accused need to appear for preliminary hearing?
The issues to be discussed at the preliminary hearing will have consequences on the accused person’s liberty. Thus, he must be present so that he can defend himself and protect his right to liberty. Secret trials are prohibited in liberal democracies such as in California.
Do I need a lawyer at the preliminary hearing?
Yes, when the accused appears before the court, he needs a lawyer. He may stand as his own lawyer and he can defend himself, but the judge will usually appoint the public defender to stand as the lawyer of the accused during the preliminary hearing. If the accused person already has a lawyer, the lawyer will appear with the accused at the preliminary hearing.
What else will be discussed at the preliminary hearing?
The judge and even the accused or the lawyer for the accused may raise the issue of the sufficiency of the charges. The charging sheet, indictment or information may contain charges of two or more criminal acts. The rule is, ever criminal indictment or information must contain only one criminal charge.
The judge or the lawyer of the accused may also raise the issue of the sufficiency of the evidence that the prosecutor possesses – as the public prosecutor may not even have enough evidence to prove that a crime was committed. The evidence in possession of the prosecution may not even be enough to prove that it was the accused who committed the crime charged.
The prosecutor may have filed the indictment or information in the wrong court. Each criminal court may hear criminal charges that are committed within its territorial jurisdiction – that is, the judge can only hear cases that were committed within the county. If it occurred in a place outside the county, then the prosecutor must withdraw the indictment or information and file it in another county.
The prosecutor may have filed the indictment or information after the time limits set by the law. The prosecutor may file indictments or information for only a set number of years. If the indictment or information was filed beyond the time limit or prescription period, the charges can no longer be brought against the accused.
What happens when the judge thinks that the prosecutor has insufficient evidence for the charges brought?