What is a Preliminary Hearing?
This is one of those annoying questions I often get - hopefully after this I won’t get it anymore. If you’ve been charged with a felony in California, one of the first major court dates you’ll face is the preliminary hearing. For many people, this is also one of the most misunderstood parts of the criminal process.
As a California criminal defense attorney, one of the first things I explain to clients is this: a preliminary hearing is not a trial. It’s a screening process that determines whether your case moves forward.
Here’s what you need to know.
What Is a Preliminary Hearing?
In California, a preliminary hearing (often called a “prelim”) is a court proceeding in felony cases where a judge decides whether there is probable cause to believe:
A crime was committed, and
The defendant committed that crime.
If the judge finds sufficient probable cause, the case is “held to answer,” and it proceeds to trial in the Superior Court. If not, the charges can be dismissed or reduced.
Preliminary hearings are governed by the California Penal Code § 872 and related statutes.
When Does the Preliminary Hearing Happen?
After an arrest, a defendant typically has:
An arraignment (where charges are formally presented), and then
A preliminary hearing within 10 court days (unless time is waived).
The timing and procedural framework are outlined in the California Penal Code § 859b.
In some cases, the defense may strategically waive time to allow for further investigation or negotiations.
What Happens at a Preliminary Hearing?
Unlike a trial, there is:
No jury
No requirement that guilt be proven beyond a reasonable doubt
Instead, the prosecution must present enough evidence to show probable cause.
The Prosecution’s Case
The prosecutor typically calls witnesses—often law enforcement officers or alleged victims—to testify about:
The alleged offense
Evidence collected
Statements made by the defendant
In many cases, officers are allowed to testify about certain hearsay statements under California law.
The Defense’s Role
This is where an experienced criminal defense attorney can make a significant difference. At a preliminary hearing, the defense can:
Cross-examine prosecution witnesses
Challenge weak or inconsistent testimony
Expose credibility issues
Argue that the evidence is insufficient
While the defense may present evidence, it is often strategically wiser to focus on cross-examination and preserving defenses for trial.
What Is the Standard of Proof?
The standard at a preliminary hearing is probable cause, not proof beyond a reasonable doubt.
This is a much lower threshold than what is required for conviction at trial. The judge is not deciding guilt—only whether there is enough evidence to move the case forward.
Because the standard is low, many cases are held to answer. However, strong cross-examination can result in:
Dismissal of certain charges
Reduction of felonies to misdemeanors
Dismissal of enhancements
Possible Outcomes of a Preliminary Hearing
After hearing the evidence, the judge may:
Hold the defendant to answer on all charges
Dismiss some charges but allow others to proceed
Dismiss the case entirely
If the case is held to answer, the prosecution files a formal charging document called an “Information,” and the case proceeds toward trial.
Why the Preliminary Hearing Matters
Even though it’s not a trial, a preliminary hearing is critically important.
1. Locking in Testimony
Witnesses testify under oath. Their statements are recorded and can later be used to:
Impeach them at trial
Expose inconsistencies
Support defense motions
2. Evaluating the Strength of the Case
A preliminary hearing allows the defense to see:
How strong (or weak) the prosecution’s evidence really is
Whether key witnesses appear credible
Whether law enforcement followed proper procedures
This often influences plea negotiations.
3. Setting Up Future Motions
Testimony from the preliminary hearing can form the basis for later motions, including:
Motions to suppress evidence
Motions to dismiss under Penal Code § 995
Can a Preliminary Hearing Be Waived?
Yes. In some situations, the defense may waive the preliminary hearing as part of a negotiated agreement. This may occur when:
A favorable plea offer is on the table
The evidence is overwhelming
There are strategic reasons to move the case forward quickly
However, waiving a preliminary hearing means giving up the opportunity to challenge the prosecution’s evidence at that stage.
Final Thoughts
A preliminary hearing is one of the most important early stages of a felony case in California. While the burden on the prosecution is relatively low, it is often the first meaningful opportunity for the defense to test the strength of the government’s case.
If you or a loved one is facing felony charges, it is critical to have experienced legal representation who understands how to use the preliminary hearing not just as a procedural step—but as a strategic tool.
An effective defense starts early. And in many cases, it starts at the preliminary hearing.
