What Happens at a Preliminary Hearing for Murder Charges?

After a felony arrest, California law requires a preliminary hearing before your case can proceed to trial. This hearing is a critical stage in any homicide prosecution where the judge determines whether the prosecution has enough evidence to continue pursuing charges against you.

Many people misunderstand the preliminary hearing. It’s not a trial. You won’t be found guilty or innocent. Instead, the judge decides one thing: does the prosecution have probable cause to believe you committed the crime?

Understanding what happens at a preliminary hearing for homicide gives you insight into how prosecutors build their case and where your defense attorney can challenge it.

What is a Preliminary Hearing?

A preliminary hearing is a probable cause hearing held before a judge in all California felony cases. The hearing serves as a checkpoint to weed out weak or unfounded charges before a case proceeds to trial.

The judge must answer two questions:

1. Is there probable cause that a crime was committed? The prosecution must show that a homicide occurred and that it meets the elements of the charged crime.
2. Is there probable cause that you committed it? The prosecution must present evidence linking you to the crime.

If the judge answers yes to both questions, you’re “held to answer” and the case moves forward to trial. If the judge finds insufficient evidence, your charges may be dismissed or reduced.

Timeline and Your Rights

Under California law, you have the right to a preliminary hearing within 10 court days of your arraignment. However, most defendants waive this deadline to give their attorneys more time to prepare. This is called “waiving time.”

If you waive time, your preliminary hearing must still occur within 60 calendar days of your arraignment. If the hearing doesn’t happen within 60 days without good cause, your case may be dismissed (unless you also waive your “60 days” rights.)

How is a Preliminary Hearing Different from a Trial?

At trial, prosecutors must prove your guilt beyond a reasonable doubt. At a preliminary hearing, prosecutors only need to show probable cause.

Probable cause means “a state of facts that would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.”

This low standard means most defendants are held to answer at the preliminary hearing.

Other Key Differences

A judge decides, not a jury. There is no jury at a preliminary hearing. The judge acts as the fact-finder.

The rules of evidence are relaxed. Prosecutors can present hearsay evidence that wouldn’t be allowed at trial. For example, a police officer can testify about what witnesses told them instead of calling those witnesses directly.

Hearings are typically short. Most preliminary hearings last 30 minutes to a few hours. Complex homicide cases may take several days, but they’re still much shorter than trials.

What Happens During the Hearing?

The preliminary hearing proceeds like a mini-trial with testimony, cross-examination, and legal arguments.

The Prosecution Presents Its Case

The district attorney calls witnesses to testify. In homicide cases, these witnesses typically include:

• Law enforcement officers who investigated the crime
• Forensic experts
• Witnesses who saw the incident
• Medical examiners who performed the autopsy
• People who had contact with you before or after the alleged crime

The prosecution must present evidence showing that someone died, how they died, and that you were involved in causing their death.

Your Attorney Cross-Examines Witnesses

Your defense attorney has the right to cross-examine every prosecution witness. This is one of the most valuable aspects of the preliminary hearing.

Effective cross-examination can expose inconsistencies, reveal weaknesses in the prosecution’s case, and lock witnesses into specific testimony under oath.

The Defense Can Present Evidence

You have the right to present witnesses and evidence at your preliminary hearing, though many defense attorneys choose not to. The decision depends on your defense strategy.

Your Attorney Can File Motions

At the preliminary hearing, your attorney can file a California Penal Code Section 1538.5 motion to suppress evidence. If the judge finds that police conducted an illegal search or seizure, evidence obtained from that violation may be suppressed.

Possible Outcomes

After hearing all evidence and arguments, the judge has several options.

Held to Answer

If the judge finds probable cause, you’re “held to answer” for the charges. The case moves forward to Superior Court for trial. You’ll be arraigned again within 15 days. This is the most common outcome because the probable cause standard is so low.

Charges Dismissed

If the judge finds insufficient probable cause, the charges can be dismissed. However, the prosecutor can refile charges.. Your protection against double jeopardy only attaches once you go to trial.

Charges Reduced

The judge may reduce charges if the evidence doesn’t support the original charge. For example, murder might be reduced to voluntary manslaughter.

Additional Charges Added

If evidence comes out during the preliminary hearing showing you committed additional crimes, the judge can add charges to your case. For instance, if testimony reveals a murder was gang-related, the judge can add gang enhancements.

Why the Preliminary Hearing Matters in Homicide Cases

Even though most defendants are held to answer, the preliminary hearing serves critical purposes in homicide cases.

Forces Early Case Assessment

Both sides get to see how the case might play out. The prosecution learns whether their witnesses are credible and hold up under cross-examination. Your defense attorney evaluates the strength of the evidence against you.

This often leads to favorable plea negotiations after the hearing. Prosecutors who discover weaknesses in their case may offer reduced charges or lighter sentences.

Creates a Transcript for Trial

Everything said at the preliminary hearing is transcribed. Your attorney can use this transcript at trial to impeach witnesses who change their stories.

Challenges the Prosecution Early

The preliminary hearing forces the prosecution to reveal their case and prove they have sufficient evidence. If the judge believes there is probable cause, but made a legal error or was wrong about the probable cause threshold being overcome, your attorney can file a California Penal Code Section 995 motion after the hearing to dismiss charges for lack of probable cause.

Should You Waive Your Preliminary Hearing?

Most criminal defense attorneys advise against waiving your right to a preliminary hearing. The hearing gives you valuable opportunities to challenge the prosecution’s case at no additional risk.

The only times waiving might make sense:

• You’ve negotiated a favorable plea deal contingent on waiving the hearing
• The case against you is overwhelming, and going through the hearing serves no strategic purpose

Even in these situations, giving up your preliminary hearing should be a carefully considered decision made in consultation with your attorney.

Contact David P. Shapiro Criminal Defense Attorneys

If you or someone you love is facing criminal charges in California, swift action is imperative. The penalties can be life altering and long lasting. Give us a call today to set up a case evaluation with one of our attorneys and learn how to best protect your freedom and future.

Too often, we see clients who “wait and see,” unsure of the legal landscape ahead, only for charges to escalate. They then find themselves backpedaling into a bad defense and an even worse lawyer. Don’t let that happen to you. Protect your freedom. Protect your future. Know your rights.

When you need experienced attorneys who understand what happens at a preliminary hearing for homicide, contact us today to discuss your case.

The contents of this article and blog are meant for informational and marketing purposes only and do not constitute legal advice. Viewing and/or use of the blog does not form an attorney-client relationship. No statements in this post are a guarantee, warranty, or prediction of a particular result in your case.