There are various stages in a criminal case, varying from arrest, trial, and conviction. A preliminary hearing is an important stage at the beginning of a criminal case. Keep reading to learn more about preliminary hearings, what happens during a preliminary hearing, and the role of an attorney during the hearing.
What is a Preliminary Hearing?
Preliminary hearings are commonly called “probable cause hearings” or “commitment hearings.” This is because the hearing allows the judge to determine if there is enough evidence (probable cause) to believe the Defendant committed the crime they are accused of doing. However, the judge may find probable cause for a different offense other than the offense that brought the Defendant to court.
What Happens During a Preliminary Hearing?
During a preliminary hearing, the judge hears all evidence put forth by the Defense and by the State. If the Defendant wishes to testify during the hearing on their behalf, they may do so. However, if the Defendant testifies, they may be cross-examined by the State. If the Defendant does not want to testify, this will not be used as evidence to establish probable cause. During the hearing, the arresting officer will likely be present to be questioned about their involvement in the case, and the State may call other witnesses to testify. The Defense will have the opportunity to cross-examine any witnesses the State calls. The Defense may also call witnesses, and the State can cross-examine the Defense’s witnesses. However, the Defense usually does not call witnesses during a preliminary hearing.
After hearing all the evidence, the judge will determine if probable cause exists. In other words, the judge will determine if there is enough evidence to believe the Defendant committed the crime.
What Happens After a Preliminary Hearing?
If the judge finds probable cause exists, the case is sent to either the Superior Court (for felony cases) or the State Court (for misdemeanor cases). In Superior Court, the person prosecuting the case is called the District Attorney. In State Court, the person prosecuting the case is called the Solicitor General. The District Attorney or the Solicitor General will pursue the case and decide whether to continue prosecuting the case.
If the judge finds no probable cause exists, the case may be dismissed.
Do I Have a Right to a Preliminary Hearing?
Article 2 of the Georgia Code addresses commitment hearings and requires “reasonable time shall be given to the defendant and prosecutor for the preparation of the case.” Many Georgia courts, including the Georgia Supreme Court and the Court of Appeals of Georgia, have taken this language to mean that there is no right to a preliminary hearing. As a result, Georgia courts have found that delayed preliminary hearings do not prejudice the Defendant and are not grounds for vacating a conviction.
For example, in Lambert v. McFarland, the United States District Court for the Northern District of Georgia addressed a six-week delay in a probable cause hearing while the prosecution obtained a crime lab analysis. The effect of the six-week delay led to evidence being found that led to the dismissal of the charges brought against Lambert. As a result, Lambert’s constitutional right to a speedy trial was not violated. The Court also noted that there were no facts before the Court to determine that any of the defendants, including the city of Atlanta, Atlanta police officers, and the Department of Public Safety, were the cause of Lambert’s detention. Therefore, the delayed probable cause hearing was constitutional.
What Happens if the Judge Does Not Allow Me to Call Witnesses?
It is an error not to allow a Defendant to call witnesses, present evidence, or cross-examine the State’s witnesses at a preliminary hearing. However, the Defendant is not entitled to a new trial on those grounds alone, especially if the Defendant is indicted after the preliminary hearing.
Can I Receive a Bond at a Preliminary Hearing?
A bond hearing and a preliminary hearing are different. However, after a preliminary hearing, the defense attorney may ask for bond to be set or lowered.
Preliminary hearings are often heard in front of a magistrate court. As a result, the magistrate court judge may not be able to make decisions about bond because some charges require that a Superior Court judge decide bond. So, depending on the charges, your defense attorney may decide not to ask for bond to be set or lowered after the preliminary hearing.
Have Questions? Give Me a Call.
Preliminary hearings are a critical stage in any hearing and can lead to the dismissal of a case. I have decades of criminal law experience and will advocate on your behalf at each stage of your case to make sure we reach the best resolution. If you need a criminal defense attorney or have legal questions, give me a call today!
