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    Preliminary Hearings in Colorado – Top 15 Questions & Answers

    A Colorado preliminary hearing is a court proceeding where prosecutors must prove that there is probable cause for your felony charges to go forward. Here are five key things to know:

    1. Preliminary hearings (“prelims”) do not determine guilt or innocence, just whether the state has sufficient evidence to continue prosecuting you.
    2. It is very difficult to win prelims because the state’s standard of proof – probable cause – is so low.
    3. If you lose your prelim – as most defendants do – the case is “bound over” from county court to district court – where you may then choose to go to trial.
    4. Prelims are a valuable opportunity to get insight into the state’s case against you and to “lock in” witness testimony.
    5. It may be worth waiving your right to a preliminary hearing if the D.A. offers you a good plea deal upfront.

    Colorado criminal court process flowchart

    In this article, our Colorado criminal defense lawyers will address the following 15 faqs:

    1. What are preliminary hearings?

    A preliminary hearing (“prelim” or “dispositional hearing”) is a court proceeding where prosecutors have to prove that there is probable cause that you committed the felony crimes you were charged with. Similar to a criminal trial, both the prosecution and defense may present evidence and cross-examine witnesses. Then one of three things will happen:

    1. If the judge finds that prosecutors failed to show probable cause, your charges will be dismissed.
    2. If the judge finds that prosecutors did show probable cause, your case will be “bound over” (transferred) to district court, where you have a right to go to a criminal trial.
    3. In cases where the judge believes you were overcharged, the judge will bind over your case on the lesser/fewer charges supported by the state’s evidence.

    In short, prelims are a check on the state’s power and intended to prevent an embarrassing, expensive, and lengthy jury trial against you where there is insufficient evidence to establish probable cause.1

    Attorney examining witness during preliminary hearing

    Preliminary hearings are screening devices for felony charges.

    2. Am I eligible for a preliminary hearing?

    You may have a preliminary hearing in Colorado when:

    The only time you are not entitled to a preliminary hearing on felony charges is if you were indicted by a grand jury. This is because the grand jury essentially serves the same purpose of a prelim – finding probable cause to prosecute.2

    3. When do they occur?

    You have seven days after your Colorado advisement hearing or arraignment to request a preliminary hearing. Once you make the request, the prelim must occur within 35 days unless you waive that right.

    If you are in custody and the court fails to hold the preliminary hearing within 35 days, the court must release you from custody (unless you waived the “35-day rule”). However, charges will not be dismissed simply because the court failed to do the prelim on time.3

    Many defendants choose to waive the “35-day rule” in order to give their criminal defense team more time to prepare.

    4. Which court are they in?

    Preliminary hearings take place in the Colorado county court where the criminal complaint was filed. If the county court judge finds probable cause for the state to continue prosecuting you, then the case will be “bound over” to the district court – which is one level higher than the county court.4

    5. What evidence can come in?

    During a preliminary hearing in Colorado, the judge can admit any evidence such as witness testimony, videos, and documents that are relevant to whether there is probable cause to believe you committed the charged crimes. In many preliminary hearings, the only evidence that prosecutors rely on is testimony by an investigating officer.

    Although the Rules of Evidence apply to preliminary hearings, they are more relaxed than during a criminal trial. It is not unusual that the majority of evidence consists of hearsay (although some non-hearsay evidence is always required).

    If there is a question as to relevancy of a particular witness, document, etc., the judge may require an “offer of proof” where you explain to the judge why it should be admitted. Also, when your evidence conflicts with the state’s evidence, the county court judge is required to accept the state’s version: Evidence is viewed in a light favorable to the prosecution.5

    Cross-examining state witnesses

    You have the right to cross-examine any witnesses the prosecutors call. This is a good opportunity to “lock in” their testimony and mine for concessions favorable to your defense.

    In practice, prelims are usually not the best place to aggressively impeach state witnesses with allegations of bias and motive, prior inconsistent statements and dishonest acts, or prior convictions. It rarely keeps the judge from finding probable cause. Plus, impeachment will:

    • “show your hand”, and you will lose the element of surprise should you try the same tactics at trial;
    • make the witness more uncooperative than they may be otherwise;
    • eat up valuable court time that the judge.

    In exceptional cases, impeaching a state witness may be worthwhile – especially if it is clear that they are unreliable. What comes out may persuade the judge to dismiss your charge or bind you over on a reduced charge, or it may prompt the D.A. to offer a better plea deal.

    Fishing for discovery

    Judges only allow questions related to whether there is probable cause that you committed the charged crime. If you ask a question aimed at trying to fish for details of the prosecution’s case against you – called “discovery” – the court will not allow the witness to answer.6

    Therefore, criminal defense attorneys are skilled at asking questions that probe whether there is probable cause and that also causes the witness to reveal discovery as part of their answer. In short, discovery is allowed if it is an incidental by-product of your attorney’s questioning.

    6. Can I testify and call witnesses?

    You have the right in Colorado to testify at your own preliminary hearing, but you do not have to, and the D.A. cannot call you. Similar to criminal trials, it is often in your interest not to testify because it opens you up to harsh cross-examination.

    In fact, most defense attorneys focus solely on cross-examining the state’s witnesses and never call defense witnesses at all. This is because:

    • By calling your own witnesses, you are giving the prosecution “free” discovery that they can now preserve, scrutinize and/or try to refute.
    • Even if the witnesses you call on your behalf are credible, you will still lose preliminary hearing if the judge finds the state’s witnesses are credible.
    • During direct examination of your witnesses, defense lawyers may not pose leading questions (which are questions that prompt a desired answer); though on cross-examination, the prosecutors can pose leading questions that could cause your witnesses to buckle – no matter how well-rehearsed they are.

    In some cases, the alleged victim in your case may call your defense attorney to say they recant and want the whole case thrown out. Even then, it is usually a bad idea to call them at a prelim because the judge will just be suspicious that you intimidated them into recanting. Instead, your attorney should have them:

    • sign a sworn affidavit; or
    • make a videotaped or audiotaped statement.

    This evidence can be used later during negotiations or the trial.

    7. Can having a prelim reduce my bail?

    Potentially. Even if you lose the preliminary hearing, the testimony may show the judge that:

    • the victim’s injuries are not substantial;
    • the state’s case has inconsistencies; and/or
    • your involvement in the alleged crime was minimal.

    Your attorney can then ask the judge to reduce your bail based on your case not being as serious as the prosecutors alleged.

    8. Are preliminary hearings hard to win?

    Yes. For Colorado preliminary hearings, prosecutors only have to show probable cause sufficient that an ordinary person could have a reasonable belief that you may have committed the crime for which you are charged. This is a far lower standard of proof than the “beyond a reasonable doubt” bar in criminal trials.

    The reason for this low standard of proof is that in preliminary hearings, judges do not have to make a finding of guilt or innocence – they merely have to decide whether sufficient evidence exists for you to be prosecuted. Even if you successfully impeach the state’s witnesses at your prelim or show that the officers violated the law, the judge will still likely choose to bind over the case and let the matter play out in district court.

    Though if your attorney makes a strong argument that you were overcharged, the judge may decide to drop some of your charges and/or bind you over for a lesser charge.

    9. Do I have the right to an attorney?

    Yes, the U.S. Constitution’s Sixth Amendment guarantees your right to an attorney during a preliminary hearing.

    In the event you cannot afford your own attorney, you will be appointed a public defender.

    10. How do I prepare?

    In preparation for a preliminary hearing, your Colorado criminal defense attorney should take the following five steps:

    1. Obtain copies of the charging papers and police reports in your case and subpoena relevant records from third parties.
    2. Demand that the prosecutor turn over all exculpatory evidence (evidence with shows that you may be innocent).7
    3. Visit the crime scene and mine for details that may be missing from the police report and other discovery documents. Your attorney can then use details from the scene to pose pointed questions to the state’s witnesses about exactly what they believe they saw and how they saw it, which may run counter to the D.A.’s theory of the case.
    4. Interview defense witnesses (even if they do not end up testifying at the preliminary hearing). These interviews can help build your defense case, abandon bad defenses, and alert you to potential concessions that the state’s witnesses may make.
    5.  If possible, speak with the arresting officer and investigating officer. They may offer valuable insight into the prosecution’s case, such as whether the victim is open to a non-criminal disposition or if any of the state’s witnesses are unreliable (for example, perhaps someone was drunk or high when they reported the offense).

    Thorough preparation will maximize the odds of your charges getting dismissed or at least reduced. Even if your case gets bound over, your attorney may have severely weakened the state’s case by locking in certain testimony by the state’s witnesses or impeaching their credibility.

    11. Should I waive my preliminary hearing?

    Certainly if the state’s evidence seems weak, it would be a good idea to go through with the preliminary hearing in the hopes of winning and getting your case dismissed. A preliminary hearing is also a valuable opportunity to cross-examine the state’s witnesses and “lock in” their testimony before the D.A. can coach them during trial prep later on.

    Conversely if the state’s evidence seems strong, then it may be worth waiving the hearing in the hopes of getting a more favorable plea deal now. Prosecutors typically punish defendants with worse plea deals if they insist on going through with the prelim.

    Five other situations where it may make sense to waive your prelim include:

    1. A key prosecution witness will be unable to appear at trial (perhaps because they will be out of the country or are terminally ill). By waiving your prelim, you are eliminating the D.A.’s opportunity to preserve their testimony.
    2. The victim in the case seems agreeable to a resolution where you remain out of custody, and putting them through a harsh cross-examination during a prelim may only aggravate them.
    3. You know that you are currently undercharged, and a preliminary hearing may tip off the D.A. that the case is more serious than they originally thought.
    4. Your case is high-profile and covered by the press, and information from the preliminary hearing will deprive you of the chance for a fair trial.
    5. You are in a jurisdiction where the only witnesses are law enforcement agents and officers, and the only testimony will be hearsay.
    Judge speaking to defense attorney and client in court

    Your attorney can help you determine whether a preliminary hearing is in your best interest.

    If you do waive your prelim in exchange for a good plea deal, be sure to make the prosecutor memorialize it by either:

    • writing you a confirmation letter with the terms;
    • amending your criminal complaint on the record in open court;
    • stipulating on the record in open court that your case will be bound over on a lesser charge.

    12. If I lose, can I appeal?

    If you lose your preliminary hearing, you can seek “extraordinary relief” under Colorado Appellate Court Rule 21 where you ask the Colorado Supreme Court to review the county court’s ruling. This is a very technical process, and it is recommended you have legal counsel handle the paperwork.8

    Note that if you win the preliminary hearing, the Colorado DA may appeal the county court’s decision to district court. Though it is rare for district courts to reverse county court prelim rulings.9

    13. If I win, can I get arrested again?

    Yes. If you win the preliminary hearing and your case is dismissed, Colorado prosecutors can have you rearrested on the same charges in the hopes of putting on a more convincing case during the next preliminary hearing. This is because your constitutional protection against “double jeopardy” does not attach until your criminal trial.10

    In the event prosecutors do refile your charges, having a second preliminary hearing may be to your advantage. Prosecutors may “overtry” your case with additional evidence they would normally withhold until later in the discovery process, thereby giving you a clearer idea of the strength and weaknesses of their case.

    In practice, it is rare for prosecutors to refile charges following a preliminary hearing unless they obtain new, incriminating evidence.

    14. What are the pros of a preliminary hearing?

    Three possible benefits of a preliminary hearing are:

    1. There is a chance (albeit, small) that your case will get dismissed or reduced to lesser charges.
    2. Your attorney may uncover valuable discovery and lock in testimony that could help you in the criminal trial or plea bargain negotiations.
    3. It helps your attorney test, debunk, and lay the groundwork for theories for your defense.

    15. What are the cons?

    Three potential detriments of going through the preliminary hearing are:

    1. If your case is high profile, the press may sit in on the hearing and report on it – which will hurt your chance to have a fair trial.11
    2. If your attorney calls defense witnesses and conducts aggressive cross-examination, the D.A. will be apprised of your defense strategies and can better prepare to beat you at trial. Plus prelims highlight the state’s own weaknesses, which the D.A. can then fix before trial or refiling the charges.
    3. Going through with a preliminary hearing may cause the D.A. to punish you with a worse plea bargain than you might have received had you waived the prelim.

    Legal References

    1. Colo. R. Crim. P. 5. The Fourth Amendment guarantees criminal defendants judicial review of the probable cause against them. Note that this is different from the 48-hour probable cause hearings following a warrantless arrest. County of Riverside v. McLaughlin (1991) 500 U.S. 44 (“bona fide emergency or other extraordinary circumstance” justify going past the 48-hour window without a hearing”).
    2. Colo. R. Crim. P. 5. People v. Brothers (Colo. App. 2021) 498 P.3d 1134. Note that in federal cases, it is easier to get a good plea prior to a grand jury indictment. See Justice Manual 9-27.
    3. Colo. R. Crim. P. 5.
    4. Colo. R. Crim. P. 5.
    5. See Hunter v. District Court (Colo. 1975) 543 P.2d 1265; People v. Quinn (Colo. 1973) 516 P.2d 420.
    6. See People v. Adams County Court (Court of Appeals of Colorado, Division One, 1988) 767 P.2d 802.
    7. See Brady v. Maryland (1963) 373 U.S. 83 (due process disclosures).
    8. White v. MacFarlane (1986) 713 P.2d 366 (“A defendant seeking to challenge an erroneous ruling on probable cause may seek extraordinary relief under Colo. R. App. P 21.“).
    9. People v. Collins (Court of Appeals of Colorado, Division Four, 2001) 32 P.3d 636.
    10. People v. Noline (Supreme Court of Colorado, 1996) 917 P.2d 1256 (“no double jeopardy has attached because a preliminary hearing does not adjudicate guilt or innocence”).
    11. People v. Holmes (District Court of Colorado, Arapahoe County, 2013) Case Number: 12CR1522, Division: 201 (judge weighs prejudice and reasonable alternatives when determining whether to let press into prelims).

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