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What is a Preliminary Hearing?

Posted by Shawn Hamp | Nov 14, 2014 | 0 Comments

Mohave county court house

Criminal Trial Lawyer Explains What Happens At A Preliminary Hearing In Arizona.

When a potential client or client's family member retains my services, it is often because someone has just gotten arrested. The person in custody has either seen or is going to see a judge for their initial appearance. They have many important questions about their criminal case and what is going to happen next.

“What is a preliminary hearing?” is one of those questions that is often asked.

The Preliminary Hearing Is Scheduled After An Initial Appearance In A Criminal Case

The initial appearance is conducted within the first 24 hours of a suspect having been taken into custody. Rule 4.2, Ariz. R. Crim. Pro.  At the initial appearance, the charges against the defendant are outlined. The judge then determines what bond amount will be sufficient to guarantee the defendant's appearance at all future court hearings. The next hearing is then scheduled which is called the Preliminary Hearing.

A Preliminary Hearing Is A Determination Of Probable Cause That A Crime Was Committed

All Felony cases must bet held in Superior Court. Before a case gets transferred into Superior Court, there must be an initial determination that there is probable cause that a crime was committed. The prosecutor has the burden of proof to prove probable cause. This is part of criminal due process. A Preliminary Hearing is conducted to have this probable cause determination. Rule 5, Ariz. R. Crim. Pro.

Probable Cause is a standard proof. Most people are familiar with the legal concept of “Proof Beyond a Reasonable Doubt”.  That is the highest standard of proof in the legal system.  “Probable Cause” is a much lower standard that only requires a determination that there are facts and circumstances sufficient enough to show that a crime was committed.

A Justice of the Peace Conducts The Hearing In Arizona

A Justice of the Peace makes this probable cause determination at the Preliminary Hearing. The hearing is held at the justice court.  In Mohave County there are four justice courts located in their respected precincts; Kingman/Cerbat Justice CourtBullhead City Justice CourtLake Havasu City Justice Court, andNorth Canyon Justice Court.  The hearing must be conducted within 10 days of the initial appearance if the defendant is in custody, or 20 days if out of custody.

If a preliminary hearing is actually conducted, the proceedings are held in a mini trial fashion. With the lower standard of proof, the prosecutor merely has to show that it is more likely than not that a crime was committed. The prosecutor will call witnesses to the stand with first hand knowledge of the events or even testify regarding hearsay if it is deemed reliable. A defendant may make an “offer of proof”. An offer of proof is an opportunity to present evidence on their own behalf and in their defense if the justice of the peace makes an initial determination of probable cause.

The whole process is rather informal compared to a trial, but still requires some preparation, planning and execution by the prosecutor in a relatively short time. Rule 5.3, Ariz. R. Crim. Pro.  Most criminal cases do not proceed to a preliminary hearing for this reason, and probable cause determinations are made instead by Grand Juries.

Mohave County Often Uses Grand Juries Instead Of Preliminary Hearings

In Mohave County, the prosecutors office prefers to take serious felonies to Grand Jury instead. There is a saying that “Grand Jury could indict a ham sandwich”, illustrating that with a non-adversarial proceeding, there is little friction for a prosecutor to get a “True Bill” and indict the Defendant.

See Also Slide Show: What is a Preliminary Hearing?

If the probable cause determination ends up being made by the Grand Jury, a supervening indictment is issued and an arraignment is scheduled in the Superior Court. The preliminary hearing court date then gets vacated or canceled.

A Defendant May Waive Their Preliminary Hearing Or Enter A Change of Plea At A Preliminary Hearing Setting

The scheduling of a preliminary hearing serves other purposes, even though the actual preliminary hearing itself often is not conducted.  Sometimes a defendant will waive their right to a preliminary hearing. This usually occurs if a prosecutor agrees to lower the bond for a defendant or agrees to hold a plea offer open in the Superior Court. For minor felonies (usually drug offenses), a prosecutor may elect to give a misdemeanor plea agreement instead of going forward with the Felony. These events would be conducted at the scheduled time for the preliminary hearing.  If a defendant waives their right to a preliminary hearing, the case gets “bound over” to the Superior Court for the remaining felony proceedings.

The time between a defendant being taken into custody and the preliminary hearing is a very critical stage in the proceedings given all these issues involved.  It is always best to consult with an attorney to understand how these proceedings could impact you and answer the legal questions you may have about your criminal case.

About the Author

Shawn Hamp

President and lead counsel for the Law Offices of Shawn B. Hamp, P.C. (An Arizona Professional Corporation), Shawn Hamp has practiced law for more than 15 years with an emphasis in criminal law. An experienced trial attorney, Mr. Hamp has been lead counsel in hundreds of criminal trials and court...

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