If you are navigating the legal system and facing criminal charges, you may find yourself overwhelmed by the process. There can be many steps involved, and each stage comes with its own expectations, rules, and responsibilities. Understanding the process will allow you to feel more confident and secure that you are getting the best defense possible. If you are facing a preliminary hearing, there are some things you should know to make the process smoother.

What is a Preliminary Hearing?

First, let’s define a preliminary hearing, which is sometimes also referred to as simply a “prelim.” As the name suggests, a preliminary hearing is a hearing that takes place before the actual trial. Because a prelim is not a trial, there are some substantial differences in what to expect and who will be involved.

What is the Difference Between a Preliminary Hearing and a Trial?

First and foremost, a preliminary hearing will be much less involved than a full trial. This is obvious when considering just how many people are involved in each process and how their goals differ from those of a trial.

Here are some key differences:

  • No jury- In a trial, there will be a jury present, but in a prelim, there is no jury. Instead, the judge hears the evidence presented by the prosecution and defense.
  • No verdict of guilt- A trial is used to determine a verdict of guilty or not guilty, but a preliminary hearing is typically used simply to determine whether there is enough evidence for a trial to move forward. Therefore, there will typically not be a verdict of guilt rendered in a preliminary hearing.
  • Short and to the point- A trial can drag on for days or weeks, but a prelim is usually fast and to the point. Most will last only a few hours, and some can be over in a matter of minutes.

Who Benefits from a Preliminary Hearing?

Ultimately, both the defense and the prosecution have potential benefits from a preliminary hearing. Obviously, the goals for each side will be different, so it’s important to understand what each will be hoping to get from the preliminary proceedings.

Goals for the Prosecution

The prosecution has the burden of proof during the preliminary hearing. This means that the prosecutor must present enough evidence to demonstrate that a trial should move forward. While the prosecutor does have the burden of proof — meaning it is his or her responsibility to make the case that there is enough evidence to bring the charges to trial — the burden of proof is lower for a prelim than it is for a trial. In a trial, the prosecutor’s job is to prove “beyond a reasonable doubt” that the defendant is guilty of the charge. In a preliminary hearing, however, the prosecutor needs only to show that there is probable cause.

The prosecution will want to show enough evidence to convince the judge that the defendant deserves to go to trial. However, prosecutors will usually not reveal all of their evidence or tip their hand to every possible angle the argument might take. Their goal will be to show just enough evidence to convince the judge to continue the trial without giving away too much of their strategy to the defense.

Goals for the Defense

The ultimate goal for the defense during a preliminary hearing is to get the case dismissed. If the judge finds that there is not enough evidence to move forward, the defendant will avoid a lengthy and more complex trial. A defense attorney might be able to achieve this goal by putting forward a strong alibi or demonstrating a major flaw in the prosecution’s argument.

Even if it seems likely that a judge is going to rule in favor of continuing the trial, however, a preliminary hearing can be an important part of a defense attorney’s strategy. During the prelim, the defense will get a chance to see the prosecution’s evidence and evaluate how strong or weak the case against the defendant is going to be. This can help a defense attorney plan accordingly and prepare for a defense that is effective and thorough.

Is a Preliminary Hearing Guaranteed?

A preliminary hearing is a likely step in a criminal defense case, but it is not always guaranteed. In Colorado, the law states that “[e]very person accused of a class 1, 2, or 3 felony or level 1 or level 2 drug felony by direct information or felony complaint has the right to demand and receive a preliminary hearing within a reasonable time.” Those accused of class 4, 5, or 6 felonies are not given this opportunity unless the felonies are among those that come with mandatory sentencing guidelines.

If a prelim is not requested “within a reasonable time,” then it is considered a waiver of the right to have one. In other words, a preliminary hearing is not necessarily guaranteed as part of a criminal proceeding. This is one of the many reasons that consulting with an experienced criminal defense attorney when facing criminal charges is an important first step to mounting a meaningful and thorough defense.

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