The Difference Between a Preliminary Hearing and a Trial

The preliminary hearing tests the prosecutor's decision to bring the case and serves to protect individuals from unfounded criminal charges.

By , UCLA Law School Professor

Preliminary hearings are sometimes referred to as mini-trials because they provide a preview of a criminal case. But preliminary hearings (or prelims) serve a much different purpose than a trial, and they occur at an earlier stage in the criminal justice process. At the preliminary hearing, the prosecutor must convince the judge that probable cause exists to believe that the defendant committed the crime charged and further proceedings—like a trial—are warranted.

Differences Between Preliminary Hearings and Trials

Preliminary hearings serve to protect the defendant from unfounded criminal charges—making sure the prosecutor has sufficient evidence to allow a criminal trial to go forward. These hearings also differ from trials in other respects, such as:

  • Length. Preliminary hearings are much shorter than trials. A typical preliminary hearing may take from a half-hour to two hours, while some only last a few minutes. Trials can last hours, days, or weeks.
  • No jury. A judge (not a jury) will conduct a preliminary hearing. Trials can also be conducted by judges alone (called a "bench trial"), but preliminary hearings never involve a jury.
  • Burden of proof. The burden of proof, while still on the prosecution, is much lower during a preliminary hearing than it is during the trial. At trial, the prosecution has the burden of proving each element of the charged offense(s) beyond a reasonable doubt. But at the preliminary hearing, the prosecution need only show probable cause exists—in other words, enough evidence to justify a belief that a crime occurred and the defendant committed it.
  • Different purpose and goal. The goal of trial is to determine a defendant's guilt. The goal of a preliminary hearing is to screen cases—weeding out weak cases and protecting defendants from unfounded prosecutions. Unofficially, however, each side uses the preliminary hearing to check out the other side's evidence. As a matter of course, both the defense and prosecution tend not to put on so much evidence that they show their whole hand. And, because the defense doesn't have to, it often doesn't put on any evidence at all.

Using the Preliminary Hearing as a Substitute for Trial

After a preliminary hearing, prosecutors and defense attorneys sometimes agree to "submit the case on the record." When this happens, a judge (not a jury) will review the preliminary hearing transcript to determine the defendant's guilt.

A prosecutor might agree to submit on the record when the case is weak but the prosecutor's office doesn't want to dismiss charges outright. If the judge dismisses the case, the prosecutor can deflect criticism from angry victims or police officers to the judge.

More often, a case submitted on the record favors the prosecution rather than the defense and, in essence, is a slow plea of guilty. In such cases, the defense knows that a guilty verdict is all but certain, but by submitting on the record, the defense can move the case more quickly to an appellate court or simply offer an out to a defendant whose case is hopeless but doesn't want to plead guilty or nolo contendere. (Defense attorneys can submit on the record only if the defendant agrees to waive trial.)

What Can Defendants Gain From a Preliminary Hearing?

Even though the defense doesn't expect to see all the prosecution's cards, the preliminary hearing may give the defense a preview of:

  • how strong the prosecution's evidence is
  • how persuasive the prosecution's witnesses are, and
  • how believable those witnesses might be should the case go to trial.

Basically, the defense tries to size up how solid the government's case is as a whole. Such information can be important to the defense—whether it ultimately settles the case in a plea bargain or proceeds to trial.

If the prosecution's case seems weak—say the prosecution witnesses change their earlier stories, forget important details, or are otherwise discredited—the defense may decide it's worthwhile to proceed to trial. The prosecution, on the other hand, might decide to offer a generous deal, or at least, the defense may gain leverage to push for one.

Example. Say the arresting officer is the state's main or only witness. If the defendant can undermine the arresting officer's credibility, the prosecutor may be willing to offer a much better deal following the preliminary hearing even if the prosecutor refused to budge on his or her offer earlier.

If, however, the government's case seems very strong, this information may help the defense decide to accept a plea bargain. Even if a plea deal was not what the defense had hoped for, the preliminary hearing might show a deal is better than wasting further energy and money fighting what looks to be a losing battle. Because more than 90% of cases end before trial, it's clear that a primary defense goal at the preliminary hearing is to look for evidence it can use to get the best possible result at the plea bargaining table.

Defense Strategies for Cross-Examining Witnesses at the Preliminary Hearing

Information gathered at the preliminary hearing will also help the defense if the case is one of the few that do go to trial. Whether or not the defense presents its own witnesses, the defense will usually vigorously cross-examine prosecution witnesses in the preliminary hearing. This cross-examination gives the defense an opportunity to see how the prosecution witnesses will hold up and pin them down as to what their testimony will be at trial. (If they change their testimony at trial, the preliminary hearing testimony can be used to attack or "impeach" their credibility.)

As useful as a vigorous cross-examination of prosecution witnesses can be, a sound alternative defense strategy is to cross-examine prosecution witnesses very briefly and politely. This serves two purposes:

  • First, it may relax and lull a witness into admitting damaging evidence either then and there, or later when the defense attorney unexpectedly gets aggressive at trial.
  • Second, the defense may save evidence that hurts the witness's credibility and spring it on the witness at trial. Because the defense did not produce this evidence at the preliminary hearing, the witness may not be expecting it at the trial, and the surprise may fluster the witness and make him or her look bad in the eyes of the jury.

Talk With Your Attorney

If you're facing criminal charges, talk to your attorney about your options and possible defense strategies. Attorneys must make many tactical decisions but the more you understand, the better you can help your own defense.

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