What Is a Preliminary Hearing?
The preliminary hearing is an important part of the pretrial proceedings in a Georgia criminal case. If you face criminal charges in the state, it’s important to understand the purpose and process of a preliminary hearing.
Purpose of the Preliminary Hearing
A preliminary hearing is part of the Georgia criminal process. A preliminary hearing should not be confused with an initial appearance hearing where a magistrate or other judge will address the issue of bond. The initial appearance must be held within 72 hours of arrest when an arrest is based upon an arrest warrant. While a preliminary hearing is not a trial, witnesses are called to the witness stand, and the court hears testimony.
In the preliminary hearing, which is usually held in magistrate court (but may be in municipal court or superior court, depending on the charges), the judge determines whether probable cause exists to support the charges. Probable cause is not the same as guilt or innocence beyond a reasonable doubt, which is the standard in a criminal trial.
Probable cause means sufficient evidence to believe that a crime was committed and the defendant is the person who committed the crime, as well as that the misdemeanor or felony charges are appropriate to the acts allegedly committed. In other words, the judge determines at the preliminary hearing solely if there is enough evidence supporting the guilt of the defendant to continue the case to the next stage of the criminal process.
Legal Representation
The defendant may appear at the preliminary hearing without a lawyer (referred to as appearing pro se) or be represented by a private criminal attorney or public defender. If you face Georgia criminal charges, you should never appear at the preliminary hearing without legal representation. A defendant may waive the preliminary hearing, but you also should never affirmatively waive it except on advice from your lawyer.
However, posting bond and being released from jail automatically waives the right to a preliminary hearing. As a practical matter, preliminary hearings are usually held while a person is in custody awaiting bond. In certain circumstances, a hearing can be held for someone that has been released on bond and is out of custody. The state is not required to grant a hearing request if the person is no longer in custody.
Result of the Preliminary Hearing
If the judge determines at the preliminary hearing that probable cause for the charges exists, a misdemeanor case is sent to the appropriate court for trial. The prosecutor typically files an accusation to set out what charges the accused will defend. A felony case is forwarded to the district attorney to determine if the case will proceed with the filing of the accusation or if the case will be presented to a grand jury for formal charges through an indictment.
A decision by the magistrate court’s that probable cause exists is not binding to the grand jury. Thus, the grand jury can no bill the indictment and decide that the case should not be prosecuted. If the judge decides that probable cause does not exist, the charges are dismissed, but the district attorney may still pursue indictment by a grand jury. On misdemeanor cases, and certain felony cases, the prosecutor can still decide to file an accusation and proceed with prosecution.
Preliminary Hearing Process
The rules of evidence that apply in a preliminary hearing are more relaxed than the rules that apply in a criminal trial. Hearsay evidence is allowed at a preliminary hearing but not allowed in a trial. Hearsay is effectively a secondhand statement, made out of court by someone other than the witness testifying, but offered by the witness to prove the truth of the matter asserted in the statement.
The prosecution presents evidence of the charges at the preliminary hearing. The defense attorney may cross examine witnesses. The defendant may testify, but usually does not. The defense attorney also may present evidence at the preliminary trial but typically does not.
Depending on the circumstances, a criminal defense attorney may use the preliminary hearing to try to establish that probable cause for the charges does not exist. More often, the defense lawyer uses the preliminary hearing as a method for gathering evidence about the case being made against the defendant.
The arresting officer is usually the only witness. However, the hearings are recorded and the testimony of the state’s witnesses can be locked in at this hearing. This record is valuable at the trial of the case, since the defendant may be able to contradict the testimony given at a trial with the testimony provided at the preliminary hearing. The defense attorney determines the best approach to the preliminary hearing based on the specific facts and situation in the case.
The preliminary hearing is not a bond hearing, but in some cases the judge may reconsider the defendant’s bond. In those cases, the defense attorney may request that a bond be set or lowered.
Representation By a Criminal Defense Lawyer
In any Georgia criminal case, representation by an experienced criminal defense lawyer is crucial to obtaining the best possible result. Your rights after arrest include the right to representation by legal counsel. You should exercise that right as soon as possible when you face a criminal charge.
If you do not have legal counsel, you could make serious mistakes that can affect the outcome of the case. If you face a criminal charge, you should never go to or waive a preliminary hearing without talking to a defense lawyer.
Cartersville, Georgia Criminal Defense Lawyer
If you face any type of Georgia criminal charge, or you are under investigation, please contact the experienced criminal defense lawyers at Criminal & DUI Law of Georgia as soon as possible, so we can fully protect your rights and defend against the case. We employ the highest standards in client confidentiality and understand the sensitive and private nature of criminal convictions.
You can rest assured that we will handle your case with unparalleled confidentiality, professionalism, and integrity.
Based in Cartersville, we serve clients throughout Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County, and Paulding County. Contact us today to schedule an appointment.