A preliminary hearing and probable cause hearing is the same thing. The formal name is a preliminary hearing, the nickname is the probable cause hearing.
Once you are charged with a felony you have a right to have a preliminary hearing within ten (10) days after your initial appearance (your arraignment) if you are in jail or within twenty (20) days if you are not in jail. Once you post bond the twenty (20) day period goes into effect. This rule is designed to protect the rights of citizens charged with felonies. The rule forces the prosecutor to show the judge a minimum amount of evidence that establishes you probably committed a felony in the Commonwealth of Kentucky. If the prosecutor is not able to go forward and conduct a hearing within the 10 day period while you sit in jail the judge ,upon motion of your attorney{or you}, must release you from the custody of the county jailer. If you are not in jail, and you either posted bond or were released ROR (released on own recognizance), the judge must dismiss the case. The rule is RCr.3.10 and states in part “In the event the preliminary hearing is not held within the above time period, the defendant shall be discharged from custody and he or she shall thereafter be proceeded against on that charge by indictment only. “ You must be aware that just because the case is dismissed does not mean that you cannot be re charged in the future. The Commonwealth can still indict you; this is called a direct indictment. You must discuss with your lawyer the benefits and risks of asserting your dismissal rights under this rule of criminal procedure . The decision to move the court for a dismissal under RCr 3.10 is solely the client’s decision. However there are strong reasons which favor not requesting a dismissal. The reasons are case dependent.
At the preliminary hearing the prosecutor goes first. Some attorneys think of the preliminary hearing as a mini trial. I think of preliminary hearings as micro trials because a preliminary hearing’s similarity to a jury trial is similar in form only. At the preliminary hearing the judge must determine if the prosecutor has introduced enough evidence to establish that probable cause exists that you committed the felony you are charged with. Remember from your high school civics class, at the jury trial the prosecutor must prove you committed the charged offense to the legal standard of PROOF BEYOND A REASONABLE DOUBT. The preliminary hearing does not require the prosecutor prove you did the crime by introducing evidence to the level of proof beyond a reasonable doubt. The lower standard of ‘ probable cause” proof makes it much easier for the prosecutor to “win” the preliminary hearing. At the preliminary hearing the judge will only require that the prosecutor prove you “probably” committed a felony. The prosecutor must also allege the felony was committed in the county the courtroom sits. You must remember that this hearing takes place after your arraignment. This hearing is the most important legal proceeding that occurs after a felony arraignment. In Kentucky you cannot proceed with a suppression hearing or a discovery hearing prior to your preliminary hearing. It is important, extremely important, to make sure you have capable lawyer to represent you at the preliminary hearing. Do not waive your right to have a lawyer present. The right to counsel is fundamental right of anyone accused of any crime and this right attaches to all criminal proceedings. Even if you are an illegal immigrant you have a right to be represented by a lawyer. The United States Supreme Court has stated in clear, easily understood language, in the cases of Gideon v Wainwright and Miranda v Arizona that a person accused of a crime must have a lawyer to protect him even if that person cannot afford a lawyer. At the preliminary hearing the judge will require that the prosecutor go first. There is not an opening statement in a preliminary hearing, although sometimes I make a brief statement about what I think the judge should watch for if I believe that prosecutor has a problem with its case that it cannot cure even with me announcing that problem pre hearing. The prosecutor can call as many witnesses as he wishes but generally the prosecutor limits its proof to two or three witnesses. The defendant can cross exam the witnesses. Most judges try to limit the scope of the cross exam to subjects that the witness testified to on direct exam. The importance of the cross examination by your lawyer is often not to establish that the witness is biased. The goal in most preliminary exam cross examinations is to discover everything the witness knows about your alleged involvement in the charged offense. This is called freezing the witness’s story. You should think of your criminal case as a chess match. The preliminary hearing is the initial move of the match. Rarely is the game of chess won on the first four (4) moves and rarely is a criminal case won at the preliminary hearing. But a good lawyer can use the preliminary hearing to discover evidence that the prosecutor desires to hide . Newly revealed evidence is essential to prepare you case for dismissal motions, suppression hearing s, constitutional challenges and the jury trial.
Some judges will increase the bond after a preliminary hearing. This a rare occurrence but it does happen. Your attorney must be aware of the judge’s tendencies and bench history. The last thing you want is to get a bond increase after losing a probable cause hearing and be taken in to jail. Many lawyers advise their client’s to waive the preliminary hearing. Waiving a hearing means giving up or forfeiting your right. This is generally not a good thing to do. Lawyers who waive hearing are usually lazy and want to go to lunch or scared and do not know how to effectively conduct a preliminary hearing.
Ask your lawyer why should I waive my hearing? Why would the judge increase my bond when I have not violated the conditions of my bond that were set at my arraignment? Ask you lawyer what witnesses the prosecutor plans to call at the hearing. Would it be helpful to know what those witnesses will testify to prior to discovering their story at the jury trial? Be advised that most judges do not increase the bond after a preliminary hearing unless then charge involves a sex crime, child abuse or elderly abuse.
The best lawyer is the prepared lawyer. Has your lawyer asked you your version of the case? Has your lawyer asked you what happened? Has your lawyer asked you if you have any witnesses to support your version? Has your lawyer invited you to his office? Does your lawyer talk more about the police version than your version? Is your lawyer scared to fight the police? Does your lawyer always agree with the judge? Does your lawyer keep reminding you how serious the charges are and how much prison time it carries? If you hired a lawyer who does not believe he can win your case you are guaranteed to lose. If you hired a lawyer who is only talks about cutting a deal, settling the case or pleading guilty you have hired the wrong lawyer.
