The Preliminary Hearing

Arraignment: Your First Court Appearance Regarding a Criminal Charge

January 10, 2023

Grand Jury & Indictment

March 10, 2023

What is a Preliminary Hearing?

A preliminary hearing is a legal proceeding where the district court judge decides if there is enough evidence to send a defendant's charges to the grand jury.

The judge, the defendant's attorney, the prosecutor and any necessary victims/ witnesses are present at this proceeding.

There are three possible outcomes of the preliminary hearing

Charges are Dropped

The charges may be dropped if the Prosecution cannot show probable cause

Grand Jury

The Judge finds that probable cause does exist and turns the case over to the Grand Jury to seek an indictment

Case Proceeds

The defendant agrees to proceed without requiring an indictment from the Grand Jury

What is the proof standard?

At the preliminary hearing, the prosecution has to prove to the Judge that it is more probable than not that the defendant committed the crime charged.

Is there a right to have a preliminary hearing?

No. A defendant has no constitutional right to a preliminary hearing.

However, the Commonwealth is entitled to a preliminary hearing on demand at any time prior to indictment.

Who hears preliminary hearings?

Jurisdiction to hear preliminary hearings is with the district court.

Why are there preliminary hearings?

Case Screening

This is a first look at the evidence supporting the charge. Weaknesses in the case may be identified without going through the lengthy process of trial. A determination is made if there is sufficient evidence to proceed

Pretrial Discovery

Preliminary hearings can be a very valuable tool in discovering evidence and identifying weaknesses in the prosecution’s case. Defense counsel will have an opportunity to cross-examine prosecution witnesses and subpoena potential defense witnesses.

Future impeachment

Defense counsel may be able to gain a vital impeachment tool to be used later in any trial on the matter. Testimony offered by witnesses is made under oath and can be used to pin down specific testimony or use for impeachment if that testimony changes later.

What is a Waiver of a Preliminary Hearing?

A defendant can waive a preliminary hearing. This allows the case to proceed to circuit court without going to the grand jury for indictment.

(Even if a defendant waives the preliminary hearing, the prosecutor can demand that one occur.)

When Should a Defendant Waive a Preliminary Hearing?

an essential prosecution witness is able to testify at the preliminary hearing but may be unavailable at trial;
a complainant is likely to "mellow" with time if he or she is not required to put his or her testimony "on the record" at this point;
the preliminary hearing may add to adverse publicity that will make it difficult to obtain a fair trial;
the preliminary hearing will call the prosecutor's attention to a curable defect in the Commonwealth's case that otherwise would not be noticed until trial, when it would be too late to correct; or
the preliminary hearing will alert the prosecutor to the fact that the defendant is undercharged.

If you have questions about preliminary hearings, feel free to

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Learn more about the 7 Steps of the Criminal Trial Process in Kentucky, proceed to Step 4, Grand Jury & Indictment