Have you been charged with a felony? If yes, you have the right to a Preliminary Hearing.

What is a Preliminary Hearing?

A preliminary hearing is an evidentiary hearing that is held prior to a felony trial; the goal is to prevent unnecessary arrest and imprisonment by assessing whether there is enough evidence to compel a case to trial. This includes officer testimony, witness testimony, documents, and other pieces that would attribute to your case. You have a right to a preliminary hearing, if you have been charged with a felony. Misdemeanor cases do not trigger the right to a preliminary hearing but a request can be made for a similar hearing. 


On the morning of a preliminary hearing, the judge usually calls the preliminary hearing calendar at 9:00 A.M. in Orange County Felony courts. Once the case is called, the DA and defense must answer ready to proceed with the preliminary hearing for the case to move forward. It is important to arrive at court at 8:30 A.M. or the court may issue a warrant for your arrest.


Once both parties announce they are ready, the Felony calendar judge will assign a courtroom. This may take an hour or two. Once a courtroom is ready, the defense and the DA will head to that courtroom to start the hearing. That  judge will sit as the magistrate and trier of fact who decides, based on evidence, what factually occurred. Preliminary hearings can last about 30 minutes to 2 hours, depending on the circumstances of the case. However, if there are several charges, witnesses, or immense evidence to be submitted during the hearing, it may last longer than that.


The “prosecution must present sufficient evidence to convince the [judge] that probable cause exists to believe that a crime has been committed and the defendant committed it.” Cal. Crim. Law: Practice and Procedures §8.1 (2019) (citing Cal. Pen. Code §872, §995). The DA will need to show the judge there is probable cause that the alleged defendant committed the alleged crime, in order to move forward with trial.


“The preliminary hearing is like a mini-trial. The prosecution will call witnesses and introduce evidence, and the defense can cross-examine witnesses. However, the defense cannot object to using certain evidence, and in fact, evidence is allowed to be presented at a preliminary hearing that could not be shown to a jury at trial.” 



Do I have the right to a Preliminary Hearing?

If you are charged with a felony, the first appearance will be the arraignment. At the arraignment, you will be served the complaint by the DA’s office. It will outline the charges against you. At that time, you may enter a plea of not guilty. Once that plea is entered, you have the right to a preliminary hearing within 10 court days or 60 calendar days of your arraignment. There must be good cause for the DA to continue the matter beyond that time frame. If the DA’s office fails to give you a preliminary hearing within those dates, there will be a violation of your right to a speedy trial. U.S. Constitution, art. 1 §6 (“Sixth Amendment”). If there is a violation of that right, the defense has the right to petition for a dismissal.


What are affirmative defenses?

Affirmative defenses are legal defenses that raise new facts or issues not raised in the complaint. These defenses can be used to mitigate civil or criminal penalties of committing crimes to varying degrees. Some examples of this are:

  • An alibi that corroborates with evidence (i.e., credit card receipts, witnesses, surveillance video.)
  • If you commit a crime with the reasonable belief that your life is in danger. 
  • Lack of probable cause.


The defense should be very cautious about presenting an affirmative defense at preliminary hearing. If the affirmative defense does not succeed in the preliminary hearing, the defense may be bound to continue that defense during the trial.


Example: There is a fight at a hotdog stand between Tom and Dick. Dick decides to spray Tom with a water bottle and then squirts mustard all over him. Tom holds up his arms defensively and asks Dick to step back. Instead Dick winds up for a punch. Tom knocks him with one punch to Dick’s face. Dick falls back and loses his hearing. He is hearing impaired for the rest of his life. Tom is then charged with felony Assault with the allegation of inflicting Great Bodily Injury. After the preliminary hearing, the argument that Tom acted in self defense can be made as an affirmative defense to the charges. The Assault elements can be attacked as well as the Great Bodily Injury allegation.


What happens after the Preliminary hearing?

If a judge finds that there is sufficient evidence showing probable cause that the crime has been committed and it was committed by the defendant, the judge will “hold the defendant ready to answer.” People v. Slaughter (1984) 35 C3d 629,637; Williams v. Superior Court (1969) 71 C2d 1144, 1147; see Cal Const art I, §14; People v. Encerti (1982) 130 CA3d 791. The prosecution may then file an information to the trial court. The information is similar to the criminal complaint you received at your arraignment. It outlines the charges against you in which the DA is going to attempt to prove at trial.


How can a criminal defense attorney help you with a preliminary hearing?

I can thoroughly examine the charges brought against you and raise doubt that there was a crime committed and that the alleged defendant committed it. A criminal defense attorney will review all evidence and, if appropriate, file a motion to dismiss on insufficiency of the evidence at the conclusion of the preliminary hearing. The DA must prove all elements of a criminal charge with the evidence provided; if the evidence can not convince a judge there is probable cause to support the charges, our criminal law firm would argue for dismissal. A dismissal at a preliminary hearing is highly unlikely, but the argument for a dismissal should be made to preserve the record in the event that there is an appeal.