Every individual arrested and accused of wrongdoing has the right to due process. This means criminal proceedings must adhere to a strict procedure, one laid out in state statutes. A felony criminal proceeding includes many steps, from the initial police investigation to sentencing or acquittal.

Tucked midway through this long process is a step known as the preliminary examination. This is, in some ways, the first chance a defendant has to state their case in front of a judge.

What happens at a preliminary examination?

A preliminary examination as part of a felony criminal proceeding is sometimes referred to as a “probable cause hearing.” The goal is to see whether there is enough evidence against the defendant to establish probable cause – and continue with the case in its current state.

During this preliminary exam, a prosecutor will present their evidence to the judge in an attempt to show first that a crime was committed, and second that the defendant was the perpetrator. This will generally involve the use of some witnesses.

The defendant and their attorney also get a chance to respond and rebut the claims. They can present their own evidence, including documents and witnesses. They may also cross-examine the prosecutor’s witnesses. It is, in a way, the first chance a defendant may have to begin making their case to the court.

What the judge might decide

The judge presiding over the preliminary examination may consider a few paths forward. If they believe probable cause exists, they can send the case to the circuit court (known as “binding over”) for a trial. If probable cause does not exist, the judge could:

  • Send the case toward trial on a different charge
  • Reduce the charge, potentially to a misdemeanor, and send the case to district court
  • Dismiss the criminal case altogether

If the case continues to circuit court, an arraignment takes place before pretrial proceedings begin.

In some situations, it may be beneficial for a defendant to request a pretrial examination be waived, but this is a decision a defendant should only make in consultation with their attorney.

Nothing about going through a criminal proceeding is easy. But by becoming more familiar with the process and knowing what to expect, it’s possible to feel more confident about the road ahead.

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