A preliminary hearing is a legal process to challenge the state’s case for your prosecution. A preliminary hearing is intended to protect people from unsupported criminal charges. If you are charged with a felony crime in Colorado, you can request a preliminary hearing to determine if there is probable cause to hold the case over for prosecution. Not all defendants are entitled to a preliminary hearing, and the preliminary hearing must be requested within 7 days of their arraignment hearing (the first appearance in court).
In this article, our Colorado criminal defense lawyers will address:
- 1. What is a Preliminary Hearing?
- 2. Am I Eligible for a Preliminary Hearing?
- 3. What Happens During a Preliminary Hearing?
- 4. What Happens After a Preliminary Hearings?
1. What is a Preliminary Hearing?
A preliminary hearing is a legal procedure for the accused to challenge the criminal proceedings against him or her. This challenge takes place early in the Colorado criminal court process. It is intended to prevent groundless charges and to avoid an embarrassing, expensive, and lengthy jury trial against someone where there isn’t enough evidence to establish probable cause.
After requesting a preliminary hearing, the prosecutor must provide evidence to establish probable cause to a judge in the Colorado County Court. This requires probable cause sufficient that an ordinary person could have a reasonable belief that the defendant may have committed the crime for which they are charged. If the judge finds probable cause, the court will bind over the case for arraignment. If the judge does not find probable cause, the case can be dismissed.
A preliminary hearing is separate from the criminal trial in Colorado. The judge is not making a finding of guilt or innocence in the preliminary hearing. If the case goes to trial, it will be the jury (or judge in a bench trial) who decides whether the prosecutor has proven their case “beyond a reasonable doubt.” The preliminary hearing takes place after the advisement hearing and arraignment.
2. Am I Eligible for a Preliminary Hearing?
According to the Colorado Rules of Criminal Procedure, “every person accused of a class 1, 2, or 3 felony has the right to demand and receive a preliminary hearing to determine whether probable cause exists to believe that the offense charged in the felony complaint was committed by the defendant.”1
Individuals charged with class 4, 5, or 6 felonies may also have the right to a preliminary hearing if the crime requires mandatory sentencing, or is a crime of violence or sexual offense. Other class 4, 5, or 6 felonies may also have the right to a preliminary hearing if they are in police custody. If they are released before the hearing, the court can vacate the preliminary hearing.
There are some exceptions to the right to a preliminary hearing. There is not an automatic scheduling of a preliminary hearing. A preliminary hearing has to be requested within 7 days after the defendant is brought before the court. The defendant, defense attorney, or prosecutor can request the hearing. After a valid request, the hearing is to be held within 35 days, unless there is good cause to continue the hearing beyond 35 days. If there is no request for a preliminary hearing within 7 days, then the court will order the defendant bound over for court.
Additionally, if the defendant is indicted by a grand jury, then they may not be entitled to a preliminary hearing. The reasoning is that the grand jury has determined there is enough evidence to indict the defendant. A grand jury, made up of individuals from the public, decides whether probable cause exists to believe the individual may be guilty of the charged crimes.
3. What Happens During a Preliminary Hearing?
A preliminary hearing is held before a judge of the Colorado County Court where the felony complaint has been filed. During the preliminary hearing, the prosecutor has to show probable cause to continue with the legal proceedings against the defendant.
The rules of evidence may be more relaxed at a preliminary hearing. During the preliminary hearing, the prosecutor may present evidence, including hearsay evidence, which may not be admissible later on at trial. The prosecutor may also present evidence such as witness or victim testimony. Evidence is viewed in a light favorable to the prosecution.
The defendant and his criminal defense attorney are present at the preliminary hearing. However, the Colorado DA cannot call the defendant to testify. The defendant may have access to limited discovery evidence before the preliminary hearing, to prepare their case. The defendant also has the right to cross-examine the witnesses called, and introduce evidence on behalf of the defense.
4. What Happens After a Preliminary Hearing?
At the conclusion of the preliminary hearing, the judge must decide whether the case will proceed or be dismissed. If the court finds probable cause exists for the criminal charges filed, the court will deny the dismissal of charges and bind the case over to trial.
However, if the judge does not find probable cause, the case may be dismissed. If the defendant is charged with felony charges but lesser charges may apply, the judge can bind the case over for trial on lesser offenses which may have been supported by the evidence presented. If all criminal charges are dismissed, the defendant can be discharged.
If the judge finds no probable cause, the Colorado DA may appeal the decision. If the prosecutor believes the court erred, they may appeal the decision to the district court.
Call us for help…
If you or a loved one needs help with the criminal court process in Colorado, please contact us at the Colorado Legal Defense Group. Our caring Colorado criminal defense lawyers have years of experience protecting clients accused of misdemeanor and felony criminal offenses. Dealing with a criminal arrest is a stressful experience. But you don’t have to go it alone. Contact us for a free consultation.
- C.R.C.P. 5(a)(4). See also People v. Brothers, (August 12, 2021), 2021 COA 109.