Preliminary Hearing

Preliminary hearings, known among attorneys and judges as “prelims,” come after your initial appearance. This hearing will occur unless you choose to waive your right to a preliminary hearing. Considering that this hearing could unfold in your favor, your attorney will likely advise that you maintain your right to have a preliminary hearing.

Here's one important caveat: If a grand jury has already issued an indictment against you, you do not have a right to a preliminary hearing.

If you agree to a plea bargain during your initial hearing, then the preliminary hearing (and all subsequent stages in the federal court process aside from Sentencing) will not apply to your case, either. However, most defendants without a preexisting grand jury indictment undergo a preliminary hearing even if they later agree to a plea agreement.

What Is the Purpose of a Preliminary Hearing?

If federal prosecutors arrested you without first obtaining a grand jury indictment—which is allowable in non-felony cases or cases where a grand jury indictment was not feasible, such as a sudden act of violence—a magistrate will play the role of grand jury.

Just as they have to convince a grand jury that there are grounds to charge you with a criminal offense, a prosecutor has the same responsibility during a preliminary hearing. Rather than convincing a grand jury of your peers, the prosecutor will only need to convince a judge that you may have committed the alleged offense.

Your Attorney's Role Is One Notable Difference Between Grand Jury Indictment Proceedings and Preliminary Hearings

In one sense, you may view it as advantageous to have a preliminary hearing rather than a grand jury indictment (though you will have no choice in this matter). Unlike grand jury proceedings, your attorney will participate in any preliminary hearing during your federal court case.

In grand jury proceedings, the prosecutor has uncontested leeway to make the case against you, with no opposing attorney to argue otherwise. In a preliminary hearing, your lawyer will make the counter-case to the prosecutor's mission for an indictment.

What to Expect During a Preliminary Hearing

The judge who presides over your preliminary hearing will decide how the process unfolds. Most preliminary hearings begin with the prosecution's case, at which time the prosecutor may:

  • Make oral arguments explaining the charges against you and why the prosecutor believes a trial is warranted
  • Present evidence
  • Present and question witnesses

Your attorney will have the opportunity to defend you. However, the prosecution is generally the only party allowed to present evidence and witnesses. Even if your lawyer does not present their own evidence or witnesses, they may call the judge's attention to the existence of any exculpatory testimony or evidence.

There are two possible outcomes for a preliminary hearing:

  1. The judge will find probable cause that the defendant has committed a crime and will schedule a trial
  2. The judge will find no probable cause of a crime, and will dismiss the charges against the defendant

If your lawyer can convince the judge that the prosecution's evidence is not sufficient for probable cause, you may avoid trial and the risk of legal penalty. Therefore, you must have a capable attorney to defend you during the preliminary hearing phase.

The Court Must Schedule Your Preliminary Hearing Promptly

The Offices of the United States Attorneys explains that there are two separate timelines for preliminary hearings. The timeline depends on whether you remain in custody after arraignment or are free on bail.

If you remain in custody, the presiding New Jersey court must schedule your preliminary hearing within 14 days of your initial appearance and arraignment. If you leave custody following your arraignment, the court must schedule your preliminary hearing within 21 days of your arraignment.

Hire an Experienced Defense Attorney to Guide You Through a Preliminary Hearing Stage

Every stage of the federal court process in New Jersey matters. That being said, the preliminary hearing phase offers a real opportunity to avoid criminal prosecution. If a skilled attorney puts forth a compelling defense by casting doubt on the prosecution's evidence and witnesses, a judge may dismiss the charges against you.

Even if you have gone without an attorney of your choosing up until now, you want a lawyer you trust to oversee your preliminary hearing. Attorney Joseph D. Lento has extensive experience defending clients from federal charges in New Jersey. Lento and his team will prepare tirelessly for your preliminary hearing and put forth the strongest defense they can.

Call the Lento Law Firm today at 888-535-3686 or contact us online.

​​​Contact The Lento Law Firm Today

When it comes to criminal defense cases, you need the right person in your corner. To learn more about how Mr. Lento can help you, call the Lento Law Firm today at 888-535-3686. or contact him online.

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