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The purpose of a preliminary hearing is to determine whether the prosecutor has enough evidence to justify further criminal proceedings against the accused. The preliminary hearing is held in open court before a judge or magistrate. After the prosecution has presented its evidence and the defense has been given a chance to respond, the judicial officer decides whether there is probable cause to believe that the accused committed the crime charged. If the court finds probable cause, or in some jurisdictions ‘‘prima facie case,’’ it will ‘‘bind the case over’’ to the grand jury or the trial court for further proceedings. If the evidence is insufficient, the charges are dismissed. The goal is to ensure that weak cases are eliminated early in the process, to save the defendant the anxiety and expense of having to defend himself at a trial against unwarranted accusations.
A Procedural Overview
Within forty-eight hours of arrest, a suspect typically has a ‘‘first appearance’’ before a magistrate. At that hearing the magistrate will advise the arrested person of the charges, appoint counsel if the suspect is indigent, and set bail. In addition, unless the suspect was taken into custody pursuant to an arrest warrant or following an indictment, the magistrate will ensure that there is probable cause to believe that the suspect committed the offense so as to justify the suspect’s continued detention or other restraints on the suspect’s liberty. This probable cause determination is often based in whole or in large part on the sufficiency of the criminal complaint; the suspect normally does not have the chance to introduce contrary evidence.
Also at the first appearance, the magistrate will often schedule the preliminary hearing (also called a ‘‘preliminary examination’’). In the federal system the hearing is to be held within ten days of the first appearance if the suspect is in custody, and within twenty days if he is not in custody. Many states have comparable time limits, or may simply require that the hearing be held within a reasonable period after arrest. These time limits may be extended by the court with the consent of the defendant, or on a showing of extraordinary circumstances that justify the delay.
In contrast to the first appearance, the preliminary hearing is adversarial. The prosecution has the burden to convince the magistrate that there is probable cause to believe that a crime was committed and that the defendant committed it. The prosecutor may present witnesses, physical and documentary evidence to satisfy this burden. The defendant has the chance to make responsive arguments, to cross-examine the government’s witnesses, and to present witnesses and other evidence of his own in an effort to show that probable cause is lacking. The suspect also has the right to be assisted by counsel, since a preliminary hearing is a ‘‘critical stage’’ in the pretrial process. The right to counsel is provided for in all jurisdictions by statute or court rule, although some lower courts have held that the failure to provide counsel may constitute harmless error. Also in contrast to the first appearance, a finding of no probable cause at a preliminary hearing will result in the dismissal (without prejudice) of charges against the defendant, rather than merely the release of the defendant from custody.
The preliminary hearing has some of the attributes of a trial, but there are important differences. The most obvious difference is that the court does not decide guilt or innocence; it simply decides whether the case should proceed toward trial. In addition, the rules of evidence often do not apply, and in many states and the federal system, the use of hearsay is explicitly authorized. This means that the prosecution need not, and frequently will not, present the witnesses who will testify at trial, thereby limiting the value of the defendant’s right of crossexamination. Evidence that was obtained illegally is also admissible at preliminary hearings in many jurisdictions. In its discretion, however, the court may require a showing that admissible evidence will be available at the time of trial.
Another important difference between a preliminary hearing and a trial is that the magistrate can limit the suspect’s ability to present a defense. Defense counsel’s cross-examination of the government’s witnesses may be cut off if the magistrate believes that counsel is simply trying to obtain discovery of the prosecutor’s case, or is trying to generate a credibility dispute. Because the purpose of the hearing is to weigh the sufficiency of the prosecutor’s evidence, most courts will say that disputes about the facts, including questions of credibility, are the province of the trial jury and are not the proper subjects of questioning. These limits on the defense present no federal constitutional concerns, because the Supreme Court has ruled that the confrontation clause of the Sixth Amendment generally does not require that the accused be afforded the right of cross-examination at a preliminary hearing.
Under the same reasoning, magistrates may limit or prevent testimony or cross-examination that is designed to elicit information regarding affirmative defenses; while these defenses could lead to an acquittal at trial, in many jurisdictions courts will find that they do not negate the existence of probable cause. In other jurisdictions, however, magistrates will permit the suspect to present evidence of affirmative defenses, and may even make limited credibility findings. These courts reason that for the preliminary hearing to serve its intended role, charges that appear to have little chance of success at trial should be promptly dismissed.
At the close of the hearing, the magistrate decides if there is probable cause to continue the case. The precise meaning of probable cause in this context is unclear. Many courts use the same standard that is required to sustain an arrest, but others use a more rigorous standard. In the latter jurisdictions the magistrate will find probable cause only if the prosecutor establishes a prima facie case of guilt, that is, when the evidence presented, if unexplained, would warrant a conviction at trial.
If the magistrate finds probable cause, the case is ‘‘bound over.’’ In jurisdictions where grand jury review is required, the case is bound over to the grand jury. Note that the outcome of the preliminary hearing has no effect on the grand jury’s decision; even if the magistrate found probable cause, the grand jurors may choose to indict, not indict, or indict for a different offense.
Where the use of grand juries is not required, or when the defendant waives that right, a finding of probable cause results in the case being bound over for trial. The prosecutor files an information in the trial court, formally setting forth the charges on which the defendant will be tried. A defendant who wishes to challenge the magistrate’s finding of probable cause normally may seek review by the trial judge having jurisdiction over the case.
If the magistrate finds that probable cause is lacking, the charges are dismissed and the suspect is discharged. Because jeopardy has not attached at a preliminary hearing, a defendant who is discharged is still subject to rearrest and reprosecution for the same offense. Although the prosecution may ask the trial judge to review the magistrate’s decision not to bind the case over, it may also simply file new charges and seek another preliminary hearing—often presenting new and more detailed evidence—or bypass the preliminary hearing entirely and present the case to the grand jury, as described below.
The Defendant’s Right to A Preliminary Hearing
At the first appearance, suspects in federal and some state cases are told that they have the right to a preliminary hearing. This right is statutory, for the Supreme Court has said that there is no constitutional right to such a hearing. As a result, the right can be, and typically is, subject to certain limits. Most importantly, if the prosecution obtains an indictment from a grand jury before the date of the preliminary hearing, the preliminary hearing is mooted. Thus, in judicial districts where grand juries are regularly convened, prosecutors have the ability to avoid preliminary hearings at will. Some jurisdictions also permit the filing of an information to moot the preliminary hearing, although the Supreme Court has cautioned that there must be some judicial finding of probable cause to justify prolonged detention of a suspect.
A suspect can waive his right to a preliminary hearing. If the evidence of guilt is strong enough to make the probable cause finding a foregone conclusion, a suspect might waive the hearing for several reasons. He may wish to avoid the adverse publicity associated with a public airing of the evidence; he may fear that once the prosecution presents the evidence, it will spot a curable defect in its case; or, he may worry that once the prosecution begins organizing the evidence to present at the hearing, it may realize that the initial charges against the suspect are too low. These risks lead large numbers of suspects (as many as 50 percent in some jurisdictions) to bypass the preliminary hearing.
Other Functions of A Preliminary Hearing
Even in cases where probable cause will be easy to establish, a defendant may decide not to waive the preliminary hearing, despite the risks. There are several benefits he might derive from the hearing that are unrelated to screening the prosecution’s case.
First, the preliminary hearing can serve as an informal means of discovery. Discovery in criminal cases is typically far more limited than in civil actions, and resource constraints may hamper defense counsel’s ability to learn the substance of the prosecution’s case on her own. At the preliminary hearing, however, the prosecutor often will have to reveal the names of key witnesses and the substance of their testimony, information that can be of great value in preparing a defense. The ability to cross-examine government witnesses also can be an effective discovery tool, although here the defense must proceed with caution. In an effort to uncover information, the defense questioning may signal to the prosecution what the defense theory will be at trial, may inadvertently reveal a gap in the prosecution’s case, or may even show that the defendant played a more prominent role in the crime than the government originally thought. As a result, unless the preliminary hearing is the only viable method of obtaining crucial information, defense counsel may prefer to learn what it can from the prosecution’s case-in-chief, and not pursue additional discovery through cross-examination.
A second benefit is that the defense can lay the groundwork for the future impeachment of witnesses. If a witness gives helpful testimony to the defense at the preliminary hearing, but then backs away from that position at trial, the defense can use the prior, under-oath testimony to show how the witness has changed her story. Having a witness commit to a certain version of events can be particularly important at this early stage in the process, since at that point the witness may not be as well prepared to testify as she will be at trial. Again, however, there are risks in trying to extract useful testimony from a witness. If the cross-examination of the witness is too sharp or confrontational, the witness may harden her position in favor of the prosecution. In addition, if defense counsel exposes a flaw in the witness’s testimony at the preliminary hearing, the prosecution may have time to correct the problem or find another witness by the time of trial.
For the prosecution, the main benefit of the preliminary hearing is the chance to perpetuate testimony. Once a witness has testified at the preliminary hearing, that testimony can be introduced as evidence at trial if the witness later dies, disappears, or otherwise becomes unavailable. Although defendants have complained that this procedure denies them the right to crossexamine the witness at trial, these objections are often, although not always, unavailing. Courts have generally concluded that because the defense has the opportunity to cross-examine the witness at the preliminary hearing, its ability to challenge the testimony is adequately protected. An additional benefit to the prosecution is the ability to ‘‘lock-in’’ a witness’ story. If the prosecution is concerned that a witness has a poor memory or will feel pressured to alter her testimony prior to trial, placing the witness under oath and on the record at the preliminary hearing reduces the chances that the witness will later change her story.
A third benefit of a preliminary hearing is that it can help educate the defense, the prosecution, and the court. The suspect may realize for the first time the strength of the prosecution’s case, which may help her decide whether to seek a plea bargain. For the prosecution, the hearing is the first chance to present the case in a formal setting, which encourages early preparation of the case and helps reveal how witnesses will perform under cross-examination. Finally, if the suspect was not represented at the first appearance (as is often the case), the preliminary hearing is the first chance defense counsel has to bring certain information to the court’s attention. Most notably, the defense may move for a reduction in bail or other changes in the pretrial release conditions based on information not previously available to the magistrate.
Effectiveness of Preliminary Hearings
The vast majority of cases presented at a preliminary hearing are bound over. This has raised the question whether these hearings serve as an effective screen against unfounded charges.
Critics have suggested that the high rate of bindover decisions show that the magistrate gives only superficial, deferential review to the prosecutor’s evidence. On reflection, however, it is obvious that the question is more complicated than the simple bindover rate would suggest. Prosecutors know that the case will be subject to pretrial review, and have every incentive to eliminate weak charges before presenting the case to the magistrate. Thus, the high bindover rate might demonstrate that preliminary hearings are a great success; under this view, most of the screening is done by the prosecutor before the preliminary hearing even begins.
Whether preliminary hearings are an effective screen or simply a rubber stamp on the prosecutor’s charging decision depends on the extent to which magistrates have the ability to spot weak cases when they are presented. The magistrate’s ability in turn depends on the procedures that are followed at the preliminary hearing. In general, the more the hearing procedures replicate those that will be followed at trial, the more difficult it will be for the prosecutor to establish probable cause, and the more likely the magistrate to find that a case should be dismissed.
Scholars have identified a number of variations in preliminary hearing procedures that will effect the screening function. Among the more important: (1) the extent to which cases in the jurisdiction are plea bargained before the preliminary hearing; (2) the extent to which prosecutors carefully evaluate their cases before the preliminary hearing, rather than using the hearing itself as a means of evaluating the charges; (3) the time and attention magistrates give a preliminary hearing; in busy jurisdictions, the court may only be able to spend a short amount of time on each hearing, necessarily leading to more abbreviated consideration; (4) the extent to which the prosecutor can introduce hearsay and other evidence that would be inadmissible at trial; (5) whether defense counsel is permitted to introduce affirmative defenses at the preliminary hearing.
Preliminary hearings play a variety of roles in the criminal system. Despite the prosecutors’ high success rate in establishing probable cause, the hearings may force the government to engage in self-screening before presenting the case, which helps ensure that innocent defendants are not required to endure the trauma of a trial. There are limits, however, on how stringent a screen the preliminary hearing can be. The lax evidentiary rules, the reluctance to usurp the trial jury by making credibility determinations, and the prosecutor’s ability in many jurisdictions to circumvent the hearing by obtaining an indictment may constrain the magistrate’s ability to dismiss all but the very weakest cases.
The high likelihood of a bindover also means, however, that many defense counsels will choose not to call witnesses or otherwise raise a defense for fear of revealing their evidence or strategy, and thus defendants will often either waive the hearing or attempt to extract other benefits from the proceeding. The chance to see the prosecutor’s evidence and to lay the foundation for future impeachment through the crossexamination can play an important role in preparing the defense for trial or plea negotiations.
- ARNELLA, PETER. ‘‘Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction without Adjudication.’’ 78 Michigan Law Review 463 (1980): 476–484, 529–539.
- Federal Rules of Criminal Procedure 5(c), 5.1.
- LAFAVE, WAYNE; ISRAEL, JEROLD H.; and KING, NANCY J. Criminal Procedure. Sections 14.114.4. St. Paul, Minn.: West Group, 1999.
- SUBIN, HARRY; MIRSKY, CHESTER L.; and WEINSTEIN, IAN S. Federal Criminal Practice. St. Paul, Minn.: West Group, 1992.
- TORCIA, CHARLES Wharton’s Criminal Procedure. 13th ed. Sections 138-141. Rochester, N.Y.: Lawyers Cooperative, 1989. Supp. 1999.
- 18 U.S.C. sec. 3060.
- WHITEBREAD, CHARLES, and SLOBOGIN, CHRISTOPHER. Criminal Procedure. Westbury, N.Y.: Foundation Press, 1993. Pages 536–544.
- WRIGHT, CHARLES ALAN. Federal Practice and Procedure. 3d ed. Sections 83-87. St. Paul, Minn.: West, 1999.