When Does It Make Sense to Waive the Preliminary Hearing?

You might be wondering why your lawyer suggested you waive your preliminary hearing. Learn what this decision entails and why you might choose this path.

What Does It Mean to Waive a Preliminary Hearing?

A preliminary hearing refers to a court hearing in which a judge decides whether probable cause exists to require a defendant to stand trial for a charged crime. In essence, this hearing provides an independent judicial review of the prosecutor's decision to file charges against the defendant. Its purpose is to protect defendants from having to face groundless charges. Waiving the preliminary hearing means giving up these protections and the chance to get the charges dismissed.

What You Lose by Waiving a Preliminary Hearing

Waiving the preliminary hearing also means giving up the chance to get a sneak peek of the prosecution's case. The preliminary hearing is sometimes referred to as a "mini trial," as it provides a preview of the prosecution's case, including evidence and, potentially, witness testimony. At the hearing, the prosecutor must convince the judge that probable cause exists to believe the defendant committed the charged crime(s). The defense isn't required to put on any evidence.

If the preliminary hearing offers a sneak peek of the prosecution's case and the defendant can just sit and listen, why might a defense attorney advise waiving this hearing?

Reasons a Defendant Might Waive a Preliminary Hearing

It's very difficult for a defendant to "win" at a preliminary hearing (that is, get the case dismissed or charges reduced). The prosecution's burden is very low, only needing to show sufficient evidence exists to justify the charges. So the decision of whether to waive the preliminary hearing often comes down to whether the defendant has more to gain or lose from it.

Some of the advantages of waiving the preliminary hearing include the following.

Avoid publicity. The defendant intends to plead guilty and wants to avoid publicity (and expense, if the defendant is represented by private counsel).

Minimize further damage. The defendant is guilty of more than the charged offenses and fears further charges from the potentially damning evidence that may come out at the preliminary hearing. Also, if the facts of the case are particularly nasty and the defendant plans to plead guilty anyway, the less the sentencing judge hears about the facts, the better for the defendant.

Hostile witnesses. The prosecution's case is strong, and the defense fears that prosecution witnesses may become so entrenched in their positions once they testify under oath at a preliminary hearing that they may become angry (or angrier) with the defendant and possibly refuse later interviews requested by the defense as it prepares for trial.

Unavailable witnesses. The prosecution intends to call witnesses at the preliminary who may be unavailable at the time of trial. If the preliminary hearing goes forward, this testimony will be available in the form of transcripts from the hearing for the prosecution to use at trial. By waiving the preliminary hearing, the defendant may prevent the testimony from coming in when the trial rolls around.

Stall. The defendant wants to stall in the hopes that by the time the case comes to trial, the prosecution's witnesses will have either disappeared, forgotten, or become confused about what happened during the alleged crime. In this situation, the defense may waive the preliminary hearing and move for several continuances (delays) of the trial date.

It all comes down to strategy.

What Happens After Waiving the Preliminary Hearing?

Waiving the preliminary hearing allows the case to proceed to the next phase of the case, whether that's trial or an earlier phase. For practical purposes, though, it often leads to further plea negotiations. Some prosecutors will offer a more favorable plea deal in exchange for waiving the preliminary hearing.

Talk to Your Attorney

If you're facing criminal charges and have questions on an upcoming preliminary hearing, talk to your criminal defense attorney or public defender. Your attorney can help you understand how a preliminary hearing might work in your favor or against it.