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The Preliminary Hearing

Updated: Apr 2, 2019

A preliminary hearing is where the prosecution must prove that there is probable cause that you are probably the person who committed the crime. A preliminary hearing resembles a miniature trial where the state presents evidence against you. Preliminary hearings are held in justice court for gross misdemeanor and felony cases. The burden of proof at this hearing is “slight or marginal” which is an incredibly low standard. Most defendants lose at the preliminary hearing due to the low burden of proof, but this does not mean the case is over. The preliminary hearing can be helpful because it allows Your Defenders at Law criminal defense attorneys to cross examine witnesses and get a glimpse of the state’s theories of the case. 


If you are in custody, you have the right to have a preliminary hearing within 15 days of arrest. If you are out of custody, your preliminary hearing will be scheduled in the “ordinary course” or the next several weeks. 


One of three things can happen at a preliminary hearing:


1) The prosecutor makes an offer to negotiate the case usually for a less severe punishment than your original charge. Sometimes these offers include pleading guilty to a lesser charge, community service, restitution, classes, and paying fines. Your Defenders at Law criminal defense attorneys will use all the facts of the case to poke holes in the state’s theories to negotiate a better deal for you. If you choose to accept the negotiation, then you “unconditionally waive your right to a preliminary hearing”. This means that you agree that the preliminary hearing will not go forward and you will enter a plea of guilty. Once the preliminary hearing is waived, you cannot change your mind about having the hearing and the case will go to trial in District Court. If you accept the negotiation, then the case is transferred from justice court to district court where you enter the guilty plea and then later get sentenced. 


2) If you reject the negotiation, then the preliminary hearing moves forward. The prosecutor will call witnesses to show that the crime was committed and that you are probably the person who committed the crime.  Remember, the burden of proof is incredibly low so people usually lose the preliminary hearing. You have the right to testify at the preliminary hearing but Your Defenders at Law criminal defense attorneys advise you not to testify because it may hurt your defense at trial.  After the preliminary hearing, the justice of the peace or judge in justice court, decides if there is enough evidence to “hold you to answer” for the crimes in district court. If the prosecutor has established probable cause by slight or marginal evidence then the case is “bound over” to District court for trial to be set. 


3) The witnesses do not show up and the preliminary hearing is continued for their presence or your case is dismissed. 


After the preliminary hearing the case is transferred to district court. If you accepted a negotiation in justice court, then you will appear in court to enter a guilty plea and the case will be scheduled for sentencing about 45 days later.  If you did not accept a negotiation in justice court then you will enter a plea of not guilty at arraignment and the court will set your case for calendar call and trial. 


Call Your Defender at Law criminal defense attorney Jherna Shahani for more information about the preliminary hearing process.



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