“Preliminary Hearing” in California – How The Process Works

If you are facing a felony charge in California, the preliminary hearing – often called a “prelim” – is one of the most important court proceeding in your case.

Your preliminary hearing is where the district attorney must show the judge that there is sufficient evidence – called “probable cause” – to continue prosecuting you. Your prelim, therefore, is a check on the strength of the state’s case against you.

For you, the preliminary hearing is a key opportunity to challenge the state’s case early on. If the D.A. fails to show probable cause at the prelim, the judge can reduce or even dismiss your charges.

Here are four key things you need to know about preliminary hearings in California:

1. During the prelim, both your attorney and the D.A. can introduce evidence and witnesses and cross-examine each other’s witnesses.
2. Prosecutors usually win prelims because “probable cause” is a low burden of proof.
3. Prosecutors may offer you a favorable plea deal in exchange for you waiving your prelim.
4. If a grand jury indicted you (which is rare), you lose your right to a prelim.

The following flowchart shows where preliminary hearings occur during your criminal case.

As a criminal defense law firm comprised of former prosecutors and cops, we at Shouse Law Group know from experience the most effective ways to lock in valuable testimony at prelims that could help get charges reduced or dismissed outright.

In this article, our California criminal defense attorneys discuss everything you need to know about preliminary hearings. Click on a topic to jump to that section.

• 1. What if I lose?
• 2. What if I win?
• 3. When are prelims?
• 4. Prelims v. Trials
• 5. Your Rights
• 6. Waiving Prelims
• 7. Misdemeanors
• Additional Reading

1. What if I lose?

If you lose your preliminary hearing in California – meaning that the judge finds there is probable cause that you committed the crimes you are charged with – then your case will be “bound over.” This means that it gets transferred from Superior Court to District Court for a new arraignment within 15 days and then possibly a jury trial.

Furthermore, if the evidence presented at prelim shows probable cause that you committed additional offenses you were not charged with, the judge can add those charges to your case.¹

Example: The D.A. charges Tony with shooting at an inhabited dwelling. At prelim, evidence comes out that Tony is an MS-13 gang member and committed the shooting to benefit the gang. Even though the D.A. did not charge Tony with a street gang enhancement, the judge binds him over on both the shooting charge and the gang enhancement.

We find that prosecutors are less willing to offer good plea bargains once cases get bound over. That is why we fight so hard early on for a favorable resolution without having to go through a prelim at all.

The prosecution’s burden at a preliminary hearing is only to show “probable cause,” a low standard.

2. What if I win?

If you win your preliminary hearing in California, then the judge will dismiss your case. This is the best-case scenario.

3. When are prelims?

A preliminary hearing in California typically takes place within 10 days of your arraignment. However, it can be postponed if you agree to it or if the court finds good cause to postpone it.⁴

At a prelim, a judge, not a jury, determines if there is enough evidence to proceed to trial.

4. Prelims v. Trials

Preliminary hearings appear similar to trials in California, but there are four main differences:

1. Prelims are usually short, sometimes only a half hour.
2. There is no jury in prelims, just the judge.
3. The rules of evidence are more relaxed during prelims.
4. Prosecutors at prelims do not have to prove beyond a reasonable doubt that you are guilty. All the judge needs to determine is if there is probable cause to believe that the alleged crimes and crime enhancements occurred and that you committed them.⁵

5. Your Rights

Ten important rights you have during preliminary hearings in California are:

1. To have an attorney.⁷ This includes the right to a public defender if you cannot afford private counsel.⁸
2. To attend your preliminary hearing (unless, for example, you are disruptive or leave on your own).⁹
3. To “corpus delicti,” which means the D.A. must establish probable cause using evidence other than just your out-of-court admissions.¹⁰
4. To confront and cross-examine prosecution witnesses.¹¹
5. To produce defense witnesses reasonably likely to establish an affirmative defense, negate an element of the crime, or impeach another witness.¹²
6. To be free from physical restraints unless there is a specific need for it.¹³
7. To all relevant evidence.¹⁴ (You have no statutory right to discovery before the preliminary hearing unless it occurs more than 15 days after either party made a formal discovery request).¹⁵
8. To file a Penal Code 995 PC motion to dismiss if you lose the preliminary hearing.¹⁶
9. To file a Penal Code 1538.5 PC motion asking the court to suppress illegally-obtained evidence.¹⁷
10. To raise a Pitchess motion asking to see prior complaints of police misconduct by the officers in your case.¹⁸

Preliminary hearings often serve as a critical opportunity for plea negotiations between the defense and prosecution.

6. Waiving Prelims

You can always waive your right to a preliminary hearing in California, though we do not recommend this unless the D.A. offers a favorable plea deal upfront. In our experience, preliminary hearings are valuable “dry runs” for a trial.

Even though the deck is always stacked against defendants during preliminary hearings because the state’s standard of proof is so low, we have achieved many wins by showing how the state violated our clients’ rights. Therefore throughout each prelim, we remain on high alert for any crack in the prosecution’s case that could translate into a full dismissal of the charges.

Preliminary hearings serve as a check to weed out any cases with insufficient “rational grounds” for prosecuting you.

7. Misdemeanors

If you are charged with misdemeanors and not felonies in California, you do not have the right to a preliminary hearing. Instead, you can pursue a similar but less formal process called a Penal Code 991 PC motion.

If you are charged with both felonies and misdemeanors in the same case, the D.A. at your prelim does have to show probable cause that you committed the misdemeanors as well as the felonies.

A successful preliminary hearing can result in charges being dismissed or reduced by the court.

Additional Resources

For more in-depth information on preliminary hearings, refer to the following scholarly articles:

• The Preliminary Hearing in Los Angeles: Some Field Findings and Legal-Policy Observations – UCLA Law Review.
• The Availability of a First Appearance and Preliminary Hearing – Now You See Them, Now You Don’t – William & Mary Law School Scholarship Repository.
• Post-Indictment Preliminary Hearings – John Marshall Journal of Practice & Procedure.
• Preliminary Hearings in Homicide Cases: A Hearing Delayed Is a Hearing Denied – Journal of Criminal Law, Criminology and Police Science.
• The Right to Counsel at the Preliminary Hearing – Missouri Law Review.

Legal References