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What Is A Preliminary Hearing?

Posted on Sep 10, 2013 2:13pm PDT

The preliminary hearing is often referred to as the evidentiary hearing. Criminal procedure can be complicated, but to put it simply, the criminal process is as follows:

  1. Arrest
  2. Booking
  3. Preliminary examination
  4. Bail hearing
  5. Arraignment (Formal reading of charges)
  6. Pre-trial motions
  7. Criminal trial

The goal of the preliminary hearing is not to decide whether or not the defendant is guilty of his or her charges, but rather, the goal is to decide if there is enough evidence for the case to proceed to criminal trial. Essentially, this is a “probable cause” hearing based on submitted evidence.

Another fact that can be addressed at the preliminary hearing is whether the alleged criminal activity took place within the court’s jurisdiction. In some cases, jurisdictional issues result in cases being moved to different courts.

During the preliminary hearing, the judge will listen to both sides: the defendant (usually represented by a criminal defense attorney) and the state prosecutor (or U.S. Attorney in federal criminal court). The evidence and witness testimony that is submitted and accepted/dismissed during this phase is incredibly important.

If the defense attorney is successful in proving that certain evidences should be dismissed from the case, there may not be enough probable cause to try the defendant in criminal court, so the judge would dismiss the case.

Preliminary hearings can come at a different phase of the criminal procedure depending on the jurisdiction. According to 725 ILCS 5 Code of Criminal Procedure, the preliminary examination can take place after the booking and before the bail hearing “in appropriate cases.”

The defendant has the right to waive the preliminary examination, but if they do not waive this right and the case proceeds to the preliminary hearing (or preliminary examination) then the defendant and his or her attorney can move for an order of suppression of evidence or even a dismissal of the charges (§ 109-3 ILCS).

In Illinois, the arraignment happens after the preliminary examination and before the pre-trial motions. After any evidence has been suppressed in the preliminary hearing, the case will proceed to the arraignment where the judge will formally read the charges to the defendant. The defendant will be asked to plead guilty, guilty but mentally ill or not guilty.

The case can then proceed to the pre-trial motion phase. Some examples of motions that can be made include the motion to dismiss a charge, motion to discharge jury panel, motion for continuance, motion to suppress confession and more. To view a complete list of motions that can be made during the pre-trial phase, view 725 ILCS 5 – Article 114.