What is a preliminary hearing?
If you are charged with a federal offense, other than a petty offense, you are entitled to a preliminary hearing before a magistrate judge unless:
- the defendant (you) waives the hearing;
- the defendant is indicted;
- the government files an information under Fed. R. Crim. P. 7(b) charging the defendant with a felony;
- the government files an information charging the defendant with a misdemeanor; or
- the defendant is charged with a misdemeanor and consents to a trial before a magistrate judge.
See Fed. R. Crim. P. 5.1. For our discussion, we will assume exceptions (2)-(5) do not apply. So the question is–to waive or not to waive?
Purpose of Preliminary Hearing
At a preliminary hearing, a magistrate judge determines if there is probable cause to believe an offense has been committed and the defendant committed it. Fed. R. Crim. P. 5.1(e). A defendant also has an opportunity to cross-examine witnesses at the hearing and may introduce evidence on his behalf. See id. However, this hearing is less formal than a trial on the merits and the magistrate judge will admit evidence that may have been “unlawfully acquired.” [Note: The defendant should file a motion to suppress to challenge illegally obtained evidence after he or she is indicted, but before trial.]
If the magistrate judge finds that probable cause exists that a defendant committed the offense, then the judge must “promptly require that the defendant appear for further proceedings.” Id. But if the judge finds no probable cause that the defendant committed the offense, then the magistrate judge “must dismiss the complaint and discharge the defendant.” Fed. R. Crim. P. 5.1(f). This discharge does not prevent the government from prosecuting the defendant on the same offense in the future.
Should I waive the hearing?
It depends on the type of offense charged, the strength of the evidence, and the defendant’s background.
For instance, in Illegal Re-Entry (8 USC 1326) prosecutions, it is very common for defendants to waive both the preliminary and detention hearings. This is because the alien file (a-file) almost always establishes probable cause that the defendant re-entered the country illegally.
But what if you are a U.S. Citizen who is arrested for a drug trafficking offense? Then it depends on the facts of that case. Preliminary hearings allow defendants to cross-examine government witnesses. This gives defense counsel the opportunity to get a sort of early discovery. But the information provided by government witnesses at these hearing is usually limited. These proceedings are also recorded–so if the government witnesses changes his story–then the transcripts can be used to impeach the witness at trial.
In short, there are many reasons to either waive or proceed with the hearing. You should discuss the pros and cons of the hearing with your attorney before you file a waiver.
Genaro R. Cortez