common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

jurisdictions, 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 adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...

, 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 tribunal, w ...

. 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 is qualified to offer advice about the law, draft legal documents, or represent individuals in legal matters. The exact nature of a lawyer's work varies depending on the legal jurisdiction and the legal system, as w ...

Canada

Canada Canada is a country in North America. Its Provinces and territories of Canada, ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, making it the world's List of coun ...

, 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 ...

where the accused in liable to a period of imprisonment greater than 14 years. 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 vario ...

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; , ) 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 between 40 and 75 litigants eac ...

imposed time limits on the Crown to bring criminal cases to trial, the Crown has started to use the direct indictment procedure more frequently.

United Kingdom

Scotland

Scotland Scotland is a Countries of the United Kingdom, country that is part of the United Kingdom. It contains nearly one-third of the United Kingdom's land area, consisting of the northern part of the island of Great Britain and more than 790 adjac ...

, a preliminary hearing is a non-evidential pre-trial 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 C ...

, conducted to enable the court to determine whether both parties, the prosecution and the defence, are ready to proceed to trial. The hearing may also address ancillary procedural matters.

United States

In the

United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...

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

probable cause In United States criminal law, probable cause is the legal standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal and for a court's issuing of a search warrant. One definition of the standar ...

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. If the court decides that there is probable cause, a formal charging instrument (called the

information Information is an Abstraction, abstract concept that refers to something which has the power Communication, to inform. At the most fundamental level, it pertains to the Interpretation (philosophy), interpretation (perhaps Interpretation (log ...

in some jurisdictions) will be issued, and the prosecution will continue. If the court does not find probable cause, then typically the prosecution will cease. Many jurisdictions, however, allow the prosecution to seek a new preliminary hearing or to seek a bill of indictment from a

grand jury A grand jury is a jury 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 person to testify. A grand ju ...

. The key questions normally addressed at a preliminary hearing are: #Is there probable cause to believe the alleged crime occurred, and did it occur within the court's

jurisdiction Jurisdiction (from Latin 'law' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple level ...

? #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, then it is said that the defendant is "bound over".

Terminology

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 criminal charges against them. In response to arraignment, in some jurisdictions, the accused is expected to enter a plea; i ...

at which the charges are formally presented to the defendant. Several procedures must be done before the arraignment can happen. For example, in most states, the prosecutor first files an “information” document with the court. This filing describes the basic elements (the facts or factors) that make up the alleged criminal offense. Relatedly, the filing enumerates the criminal law(s) that the defendant allegedly violated. Finally, the defendant is scheduled for an arraignment which is when the charge is formally and openly presented. If the defendant pleads not guilty at the arraignment, the court schedules a preliminary hearing. Where an indictment is obtained through means other than an information document, such as through grand jury proceedings or after an arrest when the defendant is first brought to court, the arraignment may be referred to as an "initial hearing", or "preliminary arraignment", which is different from a preliminary hearing. Those other hearings are not probable cause hearings.

State law

A preliminary hearing is not always required, and some jurisdictions do not require it. Some states hold preliminary hearings in every serious criminal case. Other states only have a preliminary hearing if the defense requests it; Alternatively, some states only have them for 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 r ...

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

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

United States Code The United States Code (formally The Code of Laws of the United States of America) is the official Codification (law), codification of the general and permanent Law of the United States#Federal law, federal statutes of the United States. It ...

. 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). In some cases, the defendant may not even know that a grand jury is considering the case.

Notes

{{Authority control Scottish criminal law United States criminal procedure