Within some

criminal justice system Criminal justice is the delivery of justice to those who have been accused of committing crimes. The criminal justice system is a series of government agencies and institutions. Goals include the rehabilitation of offenders, preventing other ...

s, a preliminary hearing, preliminary examination, preliminary inquiry, evidentiary hearing or probable cause hearing is a proceeding, after a criminal

complaint In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties (the plaintiff(s)) believes are sufficient to support a claim against the party ...

has been filed by the

prosecutor A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal tria ...

, to determine whether there is enough evidence to require a

trial In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribun ...

. At such a hearing, the

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one juris ...

may be assisted by a

lawyer A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solici ...

Canada

Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tota ...

, a preliminary hearing is sometimes referred to as a preliminary inquiry. During the preliminary inquiry, a hearing is held by the court to determine if there is enough evidence to justify a trial. Preliminary inquiries are only held when a person is charged with an

indictable offence In many common law jurisdictions (e.g. England and Wales, Ireland, Canada, Hong Kong, India, Australia, New Zealand, Malaysia, Singapore), an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing ...

. The

Crown Attorney Crown attorneys or crown counsel (or, in Alberta and New Brunswick, crown prosecutors) are the prosecutors in the legal system of Canada. Crown attorneys represent the Crown and act as prosecutor in proceedings under the Criminal Code and ...

may call witnesses. If there is not enough evidence, the court will dismiss the charge(s). In the aftermath of the 2016 Jordan decision, in which the

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to ...

imposed time limits on the Crown to bring criminal cases to trial, the Crown has started to use the

direct indictment An indictment ( ) is a formal accusation that a person has committed a crime. In jurisdictions that use the concept of felonies, the most serious criminal offence is a felony; jurisdictions that do not use the felonies concept often use that of ...

procedure more frequently.

Scotland

Scotland Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to th ...

, a preliminary hearing is a non-evidential diet in cases to be tried before the

High Court of Justiciary The High Court of Justiciary is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or in the adjacent former Sheriff Cou ...

. It is a pre-trial diet to enable the court to be advised whether both parties, the prosecution and the defence, are ready to proceed to trial and may also deal with ancillary procedural matters.

United States

In the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., federal district, five ma ...

, at a preliminary hearing the judge must find that such evidence provides

probable cause In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or ...

to believe that the crime was committed, and that the crime was committed by the defendant. There is a right to counsel at the preliminary hearing. The conduct of the preliminary hearing as well as the specific rules regarding the admissibility of evidence vary from jurisdiction to jurisdiction. Hearsay is typically allowed. If the court decide that there is probable cause, a formal charging instrument (called the

information Information is an abstract concept that refers to that which has the power to inform. At the most fundamental level information pertains to the interpretation of that which may be sensed. Any natural process that is not completely random, ...

in some jurisdictions) will be issued; and the prosecution will continue. If the court should find there is no probable cause, then typically the prosecution will cease. Many jurisdictions, however, allow the prosecution to seek a new preliminary hearing, or even seek a bill of indictment from a grand jury. The key questions that a preliminary hearing normally addresses are: #Is there probable cause to believe the alleged crime occurred and did it occur within the court's

jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Ju ...

? #Is there probable cause to believe that the defendant committed the crime? If a judge determines that there is sufficient evidence to believe that the defendant committed the crime, it is said that the defendant is "held to answer" or "bound over" (in U.S. jurisdictions).

Terminology

Legal terminology varies between U.S. jurisdictions, so in some jurisdictions a reference to a "preliminary hearing" may refer to a different type of hearing than is described in this article. In criminal prosecutions the court schedules an

arraignment Arraignment is a formal reading of a criminal charging document in the presence of the defendant, to inform them of the charges against them. In response to arraignment, the accused is expected to enter a plea. Acceptable pleas vary among juris ...

at which the charges are formally presented to the defendant. In many states criminal charges may be commenced with the prosecutor's filing an "information" with the court, a document that describes basic facts alleged to constitute a criminal offense by the defendant and the criminal laws that the defendant is alleged to have violated. The defendant will then be scheduled for an arraignment at which the charge is formally presented. If the defendant does not plead guilty at the arraignment, the court schedules a preliminary hearing. Where an indictment is obtained through means other than an information, such as through grand jury proceedings or after an arrest when the defendant is first brought to court, the arraignment may be described using terms such as "initial hearing", or "preliminary arraignment", creating the possibility of confusing with a preliminary hearing as described article. Those other hearings are not probable cause hearings.

State law

A preliminary hearing is not always required, and its requirement varies by jurisdiction. In the U.S., for example, some states hold preliminary hearings in every serious criminal case; in others, they are held upon request by the defense, and in still others, they are only held in felony cases.

Federal law

If the defendant is charged with a

felony A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that res ...

under federal law, the defendant has the right to an indictment by a

grand jury A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a ...

, pursuant to the Fifth Amendment to the Constitution and Title 18 of the

United States Code In the law of the United States, the Code of Laws of the United States of America (variously abbreviated to Code of Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the official compilation and codification of th ...

. At grand jury proceedings, the defendant is not entitled to have counsel present in the grand jury room (although witnesses may consult with counsel outside of the presence of the grand jury) and indeed may not even know that a grand jury is considering the case.

Notes

{{Authority control Scottish criminal law United States criminal procedure