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What Is A New York Preliminary Hearing

What Is A New York Preliminary Hearing

A preliminary hearing in New York is an important early step in a criminal case. It allows the judge to determine whether there is enough evidence against the defendant to proceed with the case. This article will explain what a preliminary hearing is, when it occurs, what happens during one, and why they are important.

What is the Purpose of a Preliminary Hearing?

A preliminary hearing has two main purposes:

  • To allow the judge to determine if there is “reasonable cause” to believe the defendant committed the crime they are charged with. This is a lower standard of proof than the “beyond a reasonable doubt” standard used at trial.
  • To allow the defendant to hear some of the prosecution’s evidence early in the case. This can help the defense attorney to begin preparing the defense strategy.

Essentially, the preliminary hearing allows the judge to act as a gatekeeper and filter out cases where the charges have no merit before they proceed further through the system. If the judge decides there is reasonable cause, the case will move ahead to the grand jury for potential indictment. If not, the charges may be dismissed.

When Does a Preliminary Hearing Occur?

Preliminary hearings occur early in the criminal process, after a defendant has been arrested and charged, but before the case is presented to a grand jury for potential indictment.

The timeline varies by case, but generally the preliminary hearing will occur within a few weeks or months of the arrest. The prosecution is required to provide notice of the preliminary hearing date to the defense attorney within 144 hours (6 days) after arraignment on the felony complaint.

What Happens During a Preliminary Hearing?

While procedures can vary slightly by judge or jurisdiction, preliminary hearings generally unfold as follows:

  • The defendant is brought before the judge and informed of their rights.
  • The prosecutor makes an opening statement summarizing their version of events and evidence.
  • Witnesses for the prosecution then testify under oath about what they observed. The testimony is limited to the core facts needed to establish reasonable cause.
  • The defense attorney can cross-examine the prosecution’s witnesses. This allows the defense to test the credibility and accuracy of the testimony.
  • The defense may also call their own witnesses to testify, although this rarely occurs.
  • After testimony concludes, both sides can make closing arguments about whether reasonable cause has been established.
  • The judge will then decide whether to dismiss the charges or allow the case to proceed further. Their decision may occur immediately or at a later date after reviewing the evidence.

Why are Preliminary Hearings Important?

Preliminary hearings serve several important purposes for both sides in a criminal case:

For the prosecution:

  • It allows them to test the strength of their case early on before bringing it to the grand jury.
  • It provides a chance to identify potential weaknesses in the evidence or testimony.
  • It gives an opportunity to observe the defense strategy taking shape.

For the defense:

  • It provides a look at some of the prosecution’s key evidence and witnesses.
  • It’s a chance to identify inconsistencies, credibility issues, or other weaknesses to exploit later.
  • It allows the defense to preserve certain witness testimony for later use.
  • It gives the defense attorney a chance to argue for dismissal of weak charges before indictment.

For the judge:

  • It provides an independent review of whether the charges have merit.
  • It acts as a check on potential prosecutorial overreach.
  • It creates an early opportunity to dismiss unfounded cases and refocus resources.

For the defendant:

  • It allows them to hear the evidence and start preparing their defense.
  • It gives a chance to avoid the stigma of indictment if the case is weak.
  • It provides an early opportunity to end the case if the charges are dismissed.

What Happens After a Preliminary Hearing?

There are three potential outcomes after a preliminary hearing:

  1. Charges dismissed – If the judge decides reasonable cause has not been established, the charges will be dismissed. The prosecution can sometimes refile charges with additional evidence.
  2. Charges reduced – The judge may decide some charges lack reasonable cause, while allowing others to proceed. This effectively reduces the charges.
  3. Case proceeds – If reasonable cause is found on the felony complaint charges, the case proceeds to the grand jury for potential indictment and trial.

If indicted after the preliminary hearing, the defendant will be arraigned again, this time on the indictment itself. The case schedule leading up to trial begins at that point.

Can the Defense Waive a Preliminary Hearing?

Yes, the defense can choose to waive the preliminary hearing. Some reasons they may do this include:

  • The defense needs more time to prepare.
  • They want to avoid showing their trial strategy too early.
  • They know reasonable cause exists on the charges so the hearing would be futile.
  • They plan to plead guilty and so don’t need to contest the evidence.
  • Scheduling conflicts, witness unavailability, or other issues.

However, waiving the hearing means losing the chance to cross-examine witnesses, argue for dismissal, or otherwise contest the charges at this early stage. So the decision to waive is strategic and depends on the individual case.

Can Hearsay be Used at Preliminary Hearings?

Unlike at trial, the normal rules of evidence do not apply at preliminary hearings in New York. So hearsay statements are admissible to establish reasonable cause.

Police officers often testify to out-of-court statements made by witnesses or informants when presenting the case. Defense attorneys will point out during cross-examination that the testimony is hearsay to undermine its reliability. But hearsay alone can be sufficient to meet the relatively low reasonable cause standard at this preliminary stage.

What Happens if the Defendant Waives Their Right to Appear?

Defendants have a right to be present at the preliminary hearing. However, some defendants choose to waive this right and not appear personally.

If so, their attorney can still cross-examine witnesses and raise arguments on the defendant’s behalf. But the defendant loses the chance to participate directly in their defense at the hearing.

In rare cases, an absent defendant who disrupts the process can be removed from the courtroom. The hearing may then continue without them, although the defense attorney remains to protect their interests.

Can a Judge Dismiss Charges After a Preliminary Hearing?

Yes, one of the key purposes of the preliminary hearing is to allow a judge to dismiss charges that lack reasonable cause to proceed further.

If the prosecution fails to present sufficient evidence, or the evidence itself is weak or contradictory, the judge can dismiss charges at this early stage. The test is whether there is reasonable cause to believe the defendant committed the specific crimes charged.

This provides an important check against unfounded prosecutions before they advance further through the system. While dismissed charges can sometimes be refiled, the preliminary hearing gives the judge an independent gatekeeping role in the process.

What Happens if a Defendant Pleads Guilty Before the Preliminary Hearing?

If the defendant decides to plead guilty before the preliminary hearing occurs, there is no need to hold the hearing. By pleading guilty, the defendant is admitting guilt and waiving their right to contest the charges.

Early guilty pleas resolve cases efficiently by avoiding the time and expense of contested hearings and trials. As a result, prosecutors often negotiate plea deals with favorable sentencing recommendations prior to the preliminary hearing taking place.

Defendants who plead guilty early on may get the chance to plead to reduced charges or obtain other benefits from the prosecutors. So in many cases, pleading guilty preempts the need for a preliminary hearing.

Can a Preliminary Hearing be Reopened or Continued?

Preliminary hearings can be reopened or continued at the judge’s discretion if there are legitimate grounds to do so. Reasons this may occur include:

  • New evidence comes to light that significantly impacts the case.
  • An essential witness becomes unavailable.
  • Scheduling difficulties require a short postponement.
  • Translation issues or other needs arise that require more time.
  • Mistakes or errors occurred that could impact the outcome.

Reopening allows the judge to consider new evidence, while continuances provide more time to prepare, obtain witnesses, or resolve issues. However, judges won’t allow cases to be endlessly delayed at this stage through repeated reopening or continuances.

What Happens if a Witness Changes Their Testimony?

If a key witness changes or recants their preliminary hearing testimony at trial, the prior testimony can still be used to impeach them.

The transcript from the preliminary hearing would be admissible to show the contradictions and challenge the witness’s credibility. The change in testimony could raise doubts about the thoroughness of the prosecution’s investigation if they failed to identify issues with the witness earlier.

For this reason, both sides pay close attention to the testimony at the preliminary hearing and note any discrepancies that arise later as the case progresses. Witnesses also may be charged with perjury if they are found to have intentionally provided false testimony.

Can a Judge Reduce Bail at a Preliminary Hearing?

Judges have the authority to make bail decisions at the preliminary hearing stage. So testimony and evidence introduced may influence the judge to raise or lower bail based on factors like:

  • Strength of the evidence against the defendant.
  • Defendant’s criminal history and record of appearing in court.
  • Defendant’s ties to the community.
  • Potential danger to the community if released.
  • Ability to post bail.

Since the preliminary hearing occurs early on, it creates an opportunity for the defense to argue for reduced bail soon after arrest before the case progresses further. The judge can consider new evidence about the defendant’s character or community ties when deciding bail.

What Happens if a Defendant is Uncooperative at a Preliminary Hearing?

Defendants who are uncooperative, disruptive, or disrespectful during the hearing may face additional charges or sanctions such as:

  • Contempt of court charges.
  • Forfeiture of the right to be present for the remainder of the hearing.
  • Loss of the right to represent themselves if they show an inability to abide by courtroom rules.
  • Stricter bail terms or pretrial detention.
  • Other disciplinary measures the judge deems appropriate.

Defendants maintain the right to participate in their defense, but can forfeit that right through egregious misbehavior. They still are entitled to have their attorney present to protect their interests if removed from the courtroom.


Preliminary hearings represent a critical early stage in the New York criminal process before indictment and trial. They provide an independent review of the charges by a judge and a chance for both sides to assess the evidence. While the procedures can vary between courts, preliminary hearings fundamentally serve as an important gatekeeper in the system by filtering out weak cases before they go further. Understanding the role they play and what occurs provides insight into how the criminal justice system functions.

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