Can the Defense “win” at a preliminary hearing?

It depends on what is considered a “win.”  I try to win every case.  When someone comes to see me, explains their charges, and retains my services, my first thoughts naturally turn to “how can I ‘win’ this case for my client.”  Not many cases are won at the preliminary hearing, but in many cases the groundwork is laid for a win later in the case.  I have explained here that the purpose of a preliminary hearing is to examine whether there is probable cause to make you stand trial for the crime of which you are accused.  You are not found guilty or not guilty at a preliminary hearing; the judge will merely provide an independent judicial review of the prosecutor’s decision to charge you with a crime. 

So how can you WIN your case at the preliminary hearing?

  1. Identification Issues:   the witness who identified you is blind, doesn’t show up, can’t remember, or fails to identify you in some way.
  2. Evidence Issues:  the prosecution fails to put on at least some proof concerning an essential element of the crime.  For example, the Rankin County DA’s office may prove every element of the crime of armed robbery against you, but if they offer no proof that the robbery occured within the jurisdictional limits of Rankin County, Mississippi, the court lacks jurisdiction, and the case should be dismissed.
  3. Setting up Successful Pretrial Motions:  At their best, motions can win a case.  At the very least, they can identify the weaknesses of the case to the judg early on, “sowing the seeds” of reasonable doubt, which will set you free.  Witnesses and law enforcement will be testifying under oath at your preliminary hearing.  Your lawyer should use this opportunity to “lock them in” to their version of events, so that it doesn’t become more favorable to the prosecution once the case gets heated at trial.   

A “win” at a preliminary hearing might mean getting the charges dismissed, getting them reduced, or convincing the prosecutor that a plea bargain is warranted.  I frequently hear the statement “I’m charged with [insert crime here], but it is all a misunderstanding, and I can explain.”  Your chance to “explain,” even though you can remain silent if you choose, is the preliminary hearing.  There is much fascinating strategy involved in this process, and you would be wise to press your lawyer to discuss your preliminary hearing plan with you thoroughly.