The preliminary examination is a hearing in a felony case that occurs in the District Court, and requires the District Court judge to make a determination about whether probable cause exists to believe that a crime was committed, and that the defendant committed that crime. If the District Court judge finds that probable cause exists, the judge “binds over” or transfers the case to the Circuit Court, where the case will be tried.

Below are some common questions and answers regarding the preliminary examination. If you have specific questions regarding the preliminary examination in your case, you should always feel free to consult your Blanchard Law attorney.

What happens at the preliminary examination?

At the preliminary examination, the prosecutor has the burden of proof to show the District Court judge that probable cause exists that a crime was committed, and that you were the person that committed the crime.

The way that the prosecutor does that is by conducting what looks almost like a mini-trial. The prosecutor will call witnesses, and the defense attorney will be permitted to cross-examine the witnesses. The defense also has a right to call witnesses at the preliminary examination. The prosecutor then has the right to cross-examine any witnesses called by the defense.

Once all of the witnesses have completed testimony for the prosecutor and the defense, the prosecutor and defense attorney can make arguments to the District Court judge about whether the prosecutor was able to prove that probable cause exists, whether some or all of the charges should be dropped, and whether some charges should be added.

After the judge has heard arguments from the attorneys, the judge will decide whether the prosecutor met their burden of proving that probable cause exists in the case. If the judge finds that probable cause does not exist that both a crime was committed and committed by you, then the judge will dismiss the charges. If the judge finds that probable cause does exist, then the judge will “bind over,” or transfer, the case to the Circuit Court. The judge can also hear arguments from the attorneys at this point to raise or lower your bond.

Is the preliminary examination important?

Yes. The preliminary examination is many times the most important hearing you will have outside of the jury trial. It is often the only time prior to trial that your attorney will be able to question your accuser and the other witnesses that the government plans to have testify against you.

While most cases do not get dismissed at the preliminary examination level, it is at this hearing that the defense can expose weaknesses in the prosecutor’s case, discover the strengths of the prosecutor’s case so that the defense can better prepare, and lock in testimony of key witnesses.

A recording and transcript is made of the testimony taken at the preliminary examination, so if any of the witnesses who testify at the preliminary examination later change their story, you will be able to prove to a jury that they testified differently previously. This can be very helpful later at a trial.

The information gathered at the preliminary examination can often mean the difference between winning and losing at a jury trial. It requires your lawyer to be highly prepared and inquisitive. It can also allow your lawyer to set up legal challenges to the case that will be presented to the Circuit Court judge later on in the case.

Am I going to testify at my preliminary examination?

No. Although we could choose to have you testify, it would be a terrible idea at this stage of the case. Placing you on the witness stand would open you up to cross-examination from the prosecuting attorney. Just like we want to have a transcript of the testimony of the prosecutor’s witnesses for trial, the prosecutor would love to have a transcript of your prior statements so that when you testify at trial, he or she can catch you in even a minor inconsistency. No one, even someone being 100% truthful, is able keep all of the details 100% consistent over time. We don’t want to give the prosecutor the opportunity to make you look like a liar on the witness stand in front of a jury later on in the case.

Is my lawyer going to call witnesses for me at the preliminary examination?

Sometimes. Your lawyer needs to come up with a strategy that makes sense in your particular case. For example, just like we don’t want the prosecutor to have a transcript of your testimony from the preliminary examination that they will use to exploit inconsistencies in testimony, we may not want the prosecutor to have a transcript of witnesses who are favorable to your case.

However, there are some instances where the circumstances might override that concern. For example, if there is a favorable witness who we think might be difficult to find later on, or we are concerned that they will change their story later, it may be a good idea to call them as a witness at the preliminary examination and lock in their testimony. Additionally, if your lawyer believes that putting on a witness will most likely lead to the judge finding that probable cause does not exist in the case, it may be worth the risk of putting the witness on at the preliminary examination.

Also, your lawyer may want to put on witnesses that will later testify for the prosecution. The prosecutor frequently only puts on the specific witnesses that they need to prove probable cause at the preliminary examination. They don’t put all of the witnesses on that they will ultimately call at trial. If there is an important witness that the prosecutor hasn’t called, your attorney may call that person to the stand at the preliminary examination in order to discover what their testimony will be, and lock in the testimony creating a transcript for later use.

How difficult is it for the prosecutor to prove probable cause?

It’s not difficult at all. Probable cause is a very low bar. If a witness testifies to any facts that make out a crime, and points the finger at you, the judge is going to find that probable cause exists.

Probable cause is a much lower standard than the standard of proof that is used at trial – beyond a reasonable doubt. The prosecutor should and will meet the lower standard of probable cause in nearly every case. Dismissals at the preliminary examination level are extremely rare.

What happens if the judge finds probable cause in my case?

If the judge finds that probable cause exists in your case, it will be “bound over” to the Circuit Court. This means that the District Court will transfer the file from that court to the Circuit Court. You will be given a date for a Circuit Court arraignment.

Can the judge change my bond at this hearing?

Yes. The judge can hear arguments from the prosecution and defense about either raising or lowering the bond in your case. The judge can also address bond on his or her own accord, based on the evidence that the judge heard at the hearing.

Can charges be added at the preliminary examination?

While this can be a scary prospect, it should not discourage you from holding your preliminary examination. Prosecutors can always add other charges later, sometimes even as late as the middle of a jury trial. It is better for you to deal with the added charges now, and gain the advantages of holding a preliminary examination regarding those charges, than to discover late in the case that the prosecutor is adding something new.

Should I hold or waive my preliminary examination?

While there can never be absolutes, our advice will generally be that unless the prosecutor has made a plea offer that you are satisfied with and want to accept, you should not waive your preliminary examination. The prosecutor will often make threats that no deals will be made later, trying to get you to waive your preliminary examination. First, it is rare that a prosecutor holds to those threats when you have a strong defense case. Second, if the prosecutor is offering a deal you aren’t interested in taking, there is no reason to believe that waiving the preliminary examination will cause them to make you a better deal later.

If you are ultimately required to have a jury trial to resolve your case, your chances of winning at trial are far greater if you previously had the benefit of running a preliminary examination. It allows your lawyer to be well-prepared for trial, and have the ability to expose inconsistencies of important witnesses.

There may be some rare instances where it makes strategic sense to waive the preliminary examination, but as a general rule, unless there has been an acceptable plea offer made, you should not be waiving the most important hearing before a trial.