Preliminary Hearing

A preliminary hearing is a bench trial to determine whether there is sufficient evidence to grant the case to trial. The purpose of the preliminary hearing is to establish whether probable cause exists to believe that the defendant has committed the crime. At the preliminary hearing, the court must be convinced only of such a state of facts as would lead a reasonable person to believe and conscientiously entertain a strong suspicion of the defendant’s guilt.

If, after presentation of evidence, the magistrate determines that no public offense has been committed or that there is insufficient cause to believe the defendant is guilty of the charged offense, the magistrate must order the complaint dismissed and the defendant discharged. Most defendants are represented by an attorney at the preliminary hearing and the court must allow the defendant reasonable time to obtain one. Sometimes, a plea that includes a reduction of a felony to a misdemeanor charge is offered and it may only be accepted if the defendant’s guilty plea is voluntarily and knowingly made. Additionally, before accepting a negotiated plea of guilty or no contest, the court must determine that there is a factual basis for the plea. If the judge approves the negotiated plea, the judge must inform the defendant before taking the plea that:

  • The judge’s approval is not binding
  • The judge may at the time of the hearing on the application for probation or pronouncement of judgment, withdraw the judge’s approval of the plea in light of further consideration of the matter
  • The defendant has the right to withdraw the plea if the defendant desires to do so.

The preliminary hearing must be held not less than two nor more than ten court days from the date the defendant is arraigned or enters a plea, whichever is later. The magistrate sets the time for the preliminary hearing when the defendant appears for arraignment unless one of the following occurs:

  • The defendants waives the right to preliminary hearing and chooses to plead guilty
  • The defendant and the prosecution waive the right to a preliminary hearing at the earliest possible time
  • The magistrate grants a continuance of the preliminary hearing for good cause

Even when the defendant has waived the ten day time limit or the hearing has been continued for good cause, the hearing must be held within 60 calendar days from the date of the arraignment or plea, unless the defendant personally waives the right to preliminary hearing within the 60 days. When a defendant has waived the right to preliminary hearing within the ten day time limit, the court is not required to take an additional waiver from the defendant if the hearing is continued again within the 60 calendar days; all that is required is that the hearing be conducted within the 60 day time limit.

In general, only competent evidence that is otherwise admissible under the Evidence Code may be introduced at the preliminary hearing. In felony cases, defense counsel may move for the suppression of any evidence, tangible or intangible, that is the product of an illegal search and seizure at the preliminary hearing if the prosecution seeks to introduce the evidence at the hearing. A search and seizure motion may be used to litigate suppression of illegally seized evidence. It may not be used to challenge an allegedly illegal confession or identification unless the confession or identification was the result of an illegal search or seizure.