Differences Between Preliminary Hearings and Arraignments

After an arrest is made, a criminal defendant faces pre-trial procedures. Preliminary hearings and arraignments are both pre-trial proceedings that are similar in nature, but they have important differences. While the process involved varies by state, the general process consists of the following:


An arraignment is a pre-trial proceeding, sometimes called an initial appearance. The criminal defendant is brought in front of a judge at a lower court. The defendant hears the charges against him or her, as well as the potential criminal sentence for conviction. Additionally, the criminal defendant may be told about his or her rights, including the right to a trial. Generally, criminal defendants have the right to a trial by jury unless they decide to have a bench trial in which the judge determines the verdict. Additionally, the criminal defendant is told that he or she has the right to have an attorney represent his or her interests. If the criminal defendant does not have an attorney, he or she may request a public defender if he or she lacks the means to pay for an attorney.

Usually during an arraignment, the criminal defendant pleads guilty or not guilty. Typically, the plea is not guilty. A trial date is established. If the defendant enters a guilty plea, the judge may set a sentencing date. Some jurisdictions allow for a criminal defendant to plead no contest, which means that the criminal defendant does not admit guilt even though he or she is basically pleading guilty.

After a plea of not guilty, the judge or magistrate may set bail. The judge determines how much bail to set. In some instances, defendants are released on their own recognizance. The judge may also impose certain conditions regarding the defendant’s release, such as requiring the defendant to forfeit his or her passport and prohibiting the defendant to have contact with the victim. Additionally, the judge may set dates for future proceedings, such as a date for a preliminary hearing.

Preliminary Hearings

During a preliminary hearing, the government has the burden to show that there is sufficient evidence of probable cause that a crime was committed and that the defendant committed it. The process is similar to a grand jury hearing in which evidence and testimony is offered by the prosecution but the defense does not usually present evidence. The judge will dismiss the case if probable cause does not exist. If probable cause does exist, the defendant is bound over to the court for trial. This means that the court asserts jurisdiction over the defendant, which will last until the defendant goes to trial or the case settles.

A preliminary hearing is held if the defendant pleads not guilty at his or her arraignment. Some states only hold preliminary hearings if they are requested by the defense’s attorney. In other states, they are only held in felony cases. However, defendants can often waive their right to a preliminary hearing and request to head directly to trial.

Preliminary hearings have implications for a defendant’s constitutional rights. On federal charges, the preliminary hearing must usually be held within 30 days from the date when the defendant was arrested unless the defendant waived the preliminary hearing.

Prosecutors often do not present all relevant evidence at the preliminary hearing. This is often a strategic decision in which the prosecution holds back some evidence while presenting enough evidence to convince the court that probable cause exists. The prosecution examines witnesses, and the defense attorney has the right to cross-examine the witnesses. Defense attorneys can use the preliminary hearing as an opportunity to see how a particular witness will appear in front of a jury.

The judge’s role is not to determine whether the defendant is actually guilty of the crime. Rather, he or she is simply determining whether the prosecution has enough evidence that supports a belief that a crime was committed and the defendant was the one who committed it.

Many of the rules of evidence that apply to trials apply to preliminary hearings. However, some additional evidence may be presented at a preliminary hearing that would not be allowed at trial, such as hearsay evidence.

After a preliminary hearing, the next stage of the process commences. The defense attorney may be able to negotiate a plea bargain with the prosecutor in order to reduce the charges or the sentence. If the defendant does not wish to plead guilty, the case proceeds to trial. There may be a number of hearings before the trial where the defendant is required to appear.

Provided by HG.org

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case.

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