What happens at a Criminal Preliminary Exam (Examination)?

January 15, 2021 - Categories: Legal Articles

In a felony criminal case, one of the hearings is a Preliminary Examination.

What is the Purpose of a Preliminary Examination (aka "Prelim Exam" or "Preliminary Exam")

A preliminary examination is like a "mini-trial" in that it is an evidentiary hearing, but the reason for it is not to find guilt or innocence of the Defendant, but rather for the State (i.e. State's Attorney, Prosecuting Attorney, etc) to present evidence to the Judge, and convince the Judge, that there is at least "probable cause" that a crime was committed, and that the Defendant committed it. 

If the State cannot prove at least probable cause, then the Judge must dismiss the case, and it is over.

If the State CAN prove at least probable cause, it does NOT mean that the Defendant is proven guilty; it only means that the case will not be dismissed, and instead will proceed to the next steps in the case of: Binding over to Circuit Court, Arraignment at Circuit Court, Pretrial, Negotiation, Entry of Plea deal or Trial, and then either Sentencing (if a plea deal was entered, or if found guilty at Trial) or Dismissal (if Defendant was found not guilty at trial). 

What does it mean to prove "Probable Cause"?

Proving at least "probable cause" is a very low standard of proof. The state only needs to show evidence establishing probable cause, which is a "reasonable ground for supposing that a charge is well-founded".

In other words, the State must only show evidence to give the Judge a reasonable basis for believing that a crime committed and a reasonable basis that the Defendant committed it.

Because the preliminary examination is not to actually prove guilt or innocence, probable cause is a very low and easy standard for the State to meet. 

What is the difference between "Probable Cause" and "Guilty beyond a reasonable doubt?"

"Probable Cause" is the standard that the State must meet at a preliminary examination. This differs markedly from the standard of "Guilty beyond a reasonable doubt" that the State must meet at a regular Trial. 

At a regular trial, the State must show enough evidence to convince a unanimous jury that the Defendant committed the crime "beyond any reasonable doubt." 

The "Guilt beyond Reasonable Doubt" standard means that the State must essentially prove first that, looking at all of the evidence from both sides, there is no reasonable alternative explanation other than that: 1) a criminal act was committed; 2) the Defendant committed the act; and 3) the Defendant did not have a legal reason that allowed him/her to commit it (e.g. self-defense).

Conversely, the Defense at a TRIAL can win by giving enough evidence to create at least one or more alternative reasonable explanations as to what occurred, leading the jury to believe that it is reasonably possible that: 1) a criminal act was NOT committed; 2) OR that one was committed, but the Defendant did not commit the act (i.e. someone else did); or 3) the Defendant committed the act, but had a legal reason that allowed him/her to commit the act (e.g. self-defense).

Thus, at a trial, the State has a much more difficult job because they have a higher standard of proof (beyond any reasonable doubt), and because they must convince all 12 jurors (or whatever the number), unanimously, that the charged crime was committed and that the Defendant committed it beyond any reasonable doubt.

In a Preliminary Exam, however, the Prosecution has a much easier job because they have a lower standard of proof (probable cause, i.e. any reasonable basis that a crime was committed and that the Defendant committed it, without actually proving he/she did), and because they must only convince one judge (not all jurors) of that reasonable basis for proceeding.

As a result, very few cases get dismissed, and nearly all of them move on the next phase of the criminal process.

Does the Defendant get to prove his defense at a Preliminary Exam?

Unfortunately, the Defense is limited as to what it wise to do at a Preliminary Examination. Certainly, the Defendant could testify, but that is usually not a good idea.

The reason a Defense Attorney does not usually have a Defendant testify at a preliminary examination is because 1) the chances of success are so low of prevailing at this point in the criminal process; and 2) the risks are high of the Defendant saying something under oath, even some random minor fact, that could later be challenged at trial to undermine his/her credibility. Therefore, the risks are usually not worth the possible reward of a dismissed case.

On the other hand, the Defense could present other witnesses who can testify on behalf of the Defendant, and these can be very helpful. For example, if another witness can testify that the Defendant was with them in an entirely different location at the time the crime occurred, and the judge believes that witness, this can eliminate all probable cause.

The Defense can also provide text messages or other documents to remove probable cause. For example, if the Defense has text messages from the alleged victim which prove that the crime was not committed, then this can be enough to overcome probable cause, leading to dismissal.

On the other hand, if the case is merely "he-said, she-said," and you have the alleged victim testifying that the Defendant committed the crime, and there are no other documents or witnesses by the Defense to prove otherwise, then it is not usually worth it to have the Defendant testify "no I didn't" because in a he-said/she-said scenario, the alleged victim's testimony, even if contradicted, is enough to provide a reasonable basis for the charges continuing forward. It may not be enough to convince a jury of 12 at a later trial that the Defendant committed the crime, but it is more than enough evidence at a prelim examination.

So what's the point of a Defendant proceeding with a preliminary exam?

Because of the low rate of success for the Defendant at a prelim exam, some attorneys will advise the client to "waive" their right to a prelim exam and to proceed to the next phase of the case. And in some cases, this is good advice.

However, in this attorney's opinion, most of time a preliminary exam should NOT be waived, because there are still benefits, as follows:

1) If there are other witnesses to testify on the Defendant's behalf, they should be brought, and may help get the case dismissed.

2) The Defense Attorney will have the opportunity to cross-examine the alleged victim and/or witnesses for the State, thus hopefully causing them to say something under oath that can be immediately challeged with contradictory statements they made, contradictory evidence at hand, or later under oath at trial.

3) The preliminary examination allows the Defense to get a more fuller picture of the witness statements and evidence that is available, and the State's position on what the evidence shows, which helps the Defense to prepare for trial later, or to have a better idea of how strong/weak the State's case will be.

4) The preliminary exam allows you to lock in the State witnesses' testimony, and then later if those witnesses testify differently at trial, you can point out the contradictions in testimony under oath, thus causing the jury to find the witness(es) less credible at trial.

5) If the Defendant is out on bond, and wants to delay the case as long as possible, this is one more hearing that will cause the case to take longer.

For these reasons, it is often a good idea to have a Preliminary Examination. 

However, it is important for the Defendant to realize that the chance of "success" and "dismissal" after a Preliminary Examination is very low, should not be expected under any circumstances, and it is not the place for the Defense to put on their full case of evidence, testimony, and defenses. That will come later at trial.