What is a “preliminary hearing” in a felony case?
You or someone you love was just charged with a felony and have been taken to the jail, waiting to see the judge. You go to court that evening and the judge enters a “not guilty” plea and then reschedules your case for a couple days later, for what the judge calls a “preliminary hearing.” You walk out of the courtroom mystified, wondering what in the world is a preliminary hearing.
When someone is charged with a felony, the law says they’re entitled to a “preliminary hearing,” which is a kind of pretrial hearing to test the strength of the felony charge. A District Attorney has up to six months to decide if the charge will be treated as a felony and handled in county or Supreme Court, or reduced to a misdemeanor and handled in a city, town, or village court. Because of that, someone could be sitting in the jail for up to six months, even though they committed no felony at all, and maybe is innocent altogether.
The law allows a preliminary hearing when three conditions are met: (i) the accused is charged with a felony, (ii) the accused is held in jail on that felony, and (iii) the accused has not been indicted. If any one of these conditions is not met, then there will be no preliminary hearing.
At a preliminary hearing, the prosecutor must offer sworn testimony, in non-hearsay format, that establishes that the accused committed some felony (not necessarily the one he or she is charged with). If the DA can show that, the court “binds over” the arrested person for action by the grand jury, and transfers its file to County Court (upstate New York) or Supreme Court (New York City). That doesn’t mean that the matter will stay a felony, because the DA still has the remainder of that six month period to reduce the felony charge to a misdemeanor and return it to the local court. In fact, sometimes doing the preliminary hearing shows the DA that the case is weak and should be reduced from a felony.
Because the preliminary hearing is the defendant’s right, our philosophy is that you should never give up your preliminary hearing unless you are receiving something in return. After all, how many rights is the DA going to give up for nothing? What are some things that you can receive in exchange for giving up your preliminary hearing? The DA could agree to a certain amount of bail that the defendant knows he or she can post, thus guaranteeing released from jail. Or, the DA could agree that the sentence will be capped at a certain level if there is a plea bargain, which would be significantly lower than the defendant’s maximum exposure if convicted after trial. Those might be things that are worth giving up a preliminary hearing, but every case is different.
Of course, there are other circumstances where someone might wish to voluntarily give up their preliminary hearing. Let’s say someone is on probation or parole and gets arrested for a new felony. Typically, they will be in jail for two reasons: the new felony charge and a violation of their probation/parole. If they insist on having their preliminary hearing, instead of waiving it, the DA will typically say to the judge, “we are not moving forward with a preliminary hearing, judge. Released the accused on the felony charge.” That sounds good, until you remember that the person arrested is also being held in the jail on the probation/parole violation. In other words, they are out of jail on the felony charge, but still in jail on the violation of probation/parole. That means the arrested person will not be leaving the jail, but also will not be earning jail time credit toward the felony if there is ultimately a conviction for the felony or a lesser charge.
Preliminary hearings are an important stage in a criminal case. It is an opportunity to put a witness, often a police officer or the person accusing you of a crime, on the witness stand and cross examine them under oath to cement their testimony. It should not be given up lightly, and should be approached very seriously and with much preparation. If you’re facing a felony charge and have a preliminary hearing scheduled, give us a call at 518-283-3000.