When Does It Make Sense to Waive the Preliminary Hearing?

Several sound tactical reasons can support a defendant's decision to waive the preliminary hearing and instead proceed to trial.

A defendant may decide, after consulting with counsel, to waive the preliminary hearing. The preliminary hearing 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). Waiving this hearing allows the case to proceed to trial more quickly (though not immediately). Why might the defendant choose this path? (For more clarity on preliminary hearings in general, read about the differences between a preliminary hearing and a trial.)

Why Waive the Preliminary Hearing?

A defendant might waive the right to a preliminary hearing for several reasons, including 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.

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