Preliminary Hearings

This post does not constitute legal advice. This post does not constitute an attorney-client relationship between you and I. Until you retain me, I am not your attorney. Moreover, this post is general information, and it does not replace the advice and counsel of an attorney that has reviewed the evidence in your case and has investigated the case on your behalf. In plain English, this is just general information; I do not represent you; my post do not replace your attorney’s advice.

What is a Preliminary Hearing?

A preliminary hearing is a court proceeding where the Magistrate Court Judge determines whether there was probable cause to bind the case over to either Superior or State Court. In some jurisdictions in Georgia, they call it a probable cause hearing or a committal hearing. For this post, I will use the term preliminary hearing. If a defendant cannot post his bond or does not have a bond, then he is entitled to a preliminary hearing.

Is a preliminary hearing the same thing as a trial?

A preliminary hearing is not a trial. There are significant differences between a trial and a preliminary hearing. The first difference is that in most trials, there are jurors that decide the ultimate issue; in a preliminary hearing, there is only a judge. The second difference is that the burden of proof for a trial is guilt beyond a reasonable doubt; in a preliminary hearing, it the probable cause standard. The difference between these legal standards is huge. If you had to think about these legal standards like grades you got in school, then guilt beyond a reasonable doubt is an “A,” and probable cause is like a “D.” The third difference is that the Magistrate Court does not have the authority to hear or rule on pre-trial motions. Pre-trial motions deal with the admissibility of evidence that either the State or the defendant wishes to present at trial. Some of the most common pre-trial motions are the following: motion to suppress evidence, a Jackson v. Denno hearing (to determine if a defendant’s statement will come into evidence), and motion in limine. At a trial, the court handling the case can hear and rule on these pre-trial motions. The fourth difference is that at a preliminary hearing, witnesses can testify not only about what they observed or did, but also about what other people observed or did. This law calls this type of testimony hearsay. At a trial, the rules of evidence do not allow the use of hearsay, generally. The final difference is that if the Magistrate Court Judge does not find that there is probable cause for the charges against a defendant, the case is not over. The protections of Double Jeopardy do not apply to a preliminary hearing. Therefore, the State can present the case to the grand jury or draft an accusation during the time allowed to bring criminal charges against a person, and revive the case. Unlike when a jury acquits a defendant, at a trial, double jeopardy protections do apply, and the case is over.

Can I lose my right to a preliminary hearing?

A defendant’s right to a preliminary hearing is a statutory one in Georgia, and not a constitutional one. Since it is a statutory right, there are ways that a defendant can lose his right to a preliminary hearing. The most common way that a defendant is by posting bond, but only if there are no conditions on his bond. The next way that a defendant can lose his right to a preliminary hearing is if the State get a grand jury to return a true bill of indictment against the defendant or files an accusation formally charging a defendant with a crime. The last way that a defendant is if the defendant waives (or gives up) his right to it. A defendant that waives his right to a preliminary hearing is NOT admitting guilt in any way to the charges against him. Moreover, a defendant that waives his right to a preliminary hearing does NOT waive any of his other rights under Georgia or Federal law.

What happens at a preliminary hearing?

The State has the burden of proof to show the Magistrate Court Judge that there is sufficient probable cause to justify the judge to bind the warrant over to Superior Court, in case of a felony, or to State Court, in case of a misdemeanor. To do this, the State will have to call a witness or witnesses. In a majority of cases, the State will call the law enforcement officer that took out the warrant against the defendant to testify. In rare cases where the officer that took out the warrant against the defendant is not available, the State may have to call another officer that was involved with the arrest of the defendant to testify. After the State has finished there questioning of their witness, the defendant will have the opportunity to cross-examine the witness to attack the witness’ credibility.

After the State has finished calling witnesses, the defendant will have the chance to present evidence and witness testimony, if he chooses to do so. In most cases, criminal defense attorneys do not call witnesses or present evidence, at the preliminary hearing. Yet, if the defendant chooses to present evidence and witnesses, then the State can cross-examine those witnesses to challenge the veracity of their testimony, and to challenge the admissibility of the defendant’s evidence.

When both sides have finished presenting their evidence, the parties can make argument to the Magistrate Court Judge as to how the judge should rule, if the parties choose to do so. If the Magistrate Court Judge determines that there is probable cause to justify the issuance of the arrest warrant, he will bind the case over. A finding of probable cause DOES NOT means that the defendant has been found guilty of anything. In fact, it is quite common that the Magistrate Court Judge finds that there was probable cause in these types of hearings. In addition, to binding a warrant over, the Magistrate Court Judge does have the ability to add additional charges against the defendant, even if the defendant was not arrested for them, initially. Yet, a Magistrate Court Judge can only do this if there is evidence supporting a finding of probable cause for those additional charges.

Why should I have a preliminary hearing?

Preliminary hearings are a great tool for criminal defense attorneys to get information regarding the case against their client. At this early stage of the process, the State does not have to provide the defendant or his attorney with a lot of information about the case against the defendant. The discovery process, which I will go into more detail in a future post, is not in play yet. Furthermore, while a defendant and his attorney can make use of open records requests to get information from the law enforcement agency that arrested the defendant, law enforcement agencies do have the ability to deny such requests, if the agency is still investigating the case.

Besides getting information regarding the case against a defendant, a preliminary hearing is a great tool to help start laying the groundwork for any possible pre-trial motions that a defendant may want to file. Next, the evidence presented at the preliminary hearing may convince the Magistrate Court Judge to reduce the charge against the client. However, the State does have the right to circumvent the judge’s ruling by getting a grand jury to indict the defendant for the charges that the State believes are proper. Lastly, if the defendant does not have bond or has a high bond, then the defendant can use the information gained at the preliminary hearing to ask for a bond or get his bond reduced.

Are there any risks with having a preliminary hearing?

Unfortunately, yes, there are risks with having a preliminary hearing. First, the Magistrate Court judge may bind the warrant over against the defendant. The burden of proof on the State is quite low, and in a majority of cases, the State will have sufficient evidence to present to the Magistrate Court judge to justify binding the warrant over. Second, the Magistrate Court Judge does have the ability to add additional charges against the defendant, if there was sufficient evidence presented at the hearing. Third, if a defendant requests that the Magistrate Court judge set or reduce his bond, the judge may deny such a request because of the evidence that arise during a preliminary hearing.

Schedule a Consultation

If you have a loved one in custody and he or she has an upcoming preliminary hearing, you need to call an experienced criminal defense attorney that can help your loved one. I have conducted numerous preliminary hearings. I can help protect your loved ones’ rights and to start laying the groundwork to a possible defense to the charges against your loved one. Call me at 404-585-1377 to schedule a consultation.

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