“What is a preliminary hearing?” “Do I need a lawyer for it?” These are two common questions that I receive from my clients charged with a felony. To clarify this rare court proceeding, I decided to share my answers with those that are possibly asking the same questions.
A preliminary hearing is usually the first proceeding in a criminal trial when an individual has been accused of committing a felony. Because felony charges often carry greater potential sentences than misdemeanors, our criminal justice system requires probable cause to be found a second time. Probable cause must be found for the felony by a judge at a preliminary hearing or by a grand jury. It is extremely important to have an experienced criminal defense attorney at the preliminary hearing for many reasons. First, a preliminary hearing can open the door for discussion with the prosecutor to get charges dismissed. I have been successful at getting felonies, and in some cases, all the charges dropped at the preliminary hearing when I was retained early enough in the case. Second, a preliminary hearing can provide a platform to have bail reviewed, which can be hugely important if the accused is still incarcerated. Last, it can be used as a discovery tool to learn about the State’s case, and to get a feel for its witnesses.
In most counties in Maryland, a preliminary hearing must be requested within 10 days of the initial appearance. The preliminary hearing will be held in front of a Judge at the District Court. The preliminary hearing is usually the first proceeding in a case where someone has been charged with a felony. The preliminary hearing is not a trial and the defendant will not testify or present any evidence. The burden is on the State to show that it has enough evidence to convince a reasonable jury that the defendant committed the felony. This is a much lower standard than what the State has to prove to a jury to convict the defendant of the crime at trial. The State will usually call a detective or police officer to talk about the facts of the case that support the felony charge. The defendant has the opportunity to cross-examine the State’s witness. Since these proceedings are under oath and recorded, the testimony can be used against the testifying officer if necessary at trial. If the judge determines that there is probable cause for the felony charge then the case will be transferred to the Circuit Court, along with any misdemeanors. If the judge does not find probable cause than the felony charge will be dropped and a trail date will be set in the District Court for any remaining misdemeanor charges. In Baltimore City, if your case has not been transferred to the Circuit Court by way of indictment, it is not uncommon for the felony to be dropped at the preliminary hearing and for the State to go forward with a trial on the misdemeanor charges that day.
Facing criminal charges is scary, and an effective lawyer who will fight for your rights can help ease your fears. No one accused of a crime should be alone in the presence of the police, the prosecutor, or the court. A preliminary hearing is a critical stage in the criminal process where an experienced criminal attorney can really help.