McBrien & Kane
The official blog of McBrien & Kane, a Lebanon, Tennessee law office.
PRELIMINARY HEARING OR NO PRELIMINARY HEARING … THAT IS THE QUESTION.
Every criminal case commenced in General Sessions court in Tennessee, be it Theft of Property, a Drug case, DUI, Assault or any other such crime (felony or misdemeanor) offers the Defendant the option of having a Preliminary Hearing. Though such a hearing may look like a trial to a lay person, it is not.
Typically a Defendant charged with a criminal offense in General Sessions court in Davidson County, Wilson County, Smith County, and Macon County, is given a few options on what do with his case, depending on the seriousness of the charges.
One option, having a trial in General Sessions court, is available only to those charged with misdemeanors.
Felonies, crimes that involve more serious charges, can only be tried in Criminal court either by the Judge or a jury, after the case has been presented to the Grand Jury and an indictment has been returned.
The remaining available options available while still in General Sessions court consist of entering a guilty plea to a misdemeanor or having or not having a Preliminary Hearing.
During a Preliminary Hearing, witnesses will be called by the State and cross examined by Defense counsel similar to a trial, however there are fundamental differences.
The first distinction is the District Attorney is not required to prove guilt beyond a reasonable doubt as in a trial. During a Preliminary Hearing he need only establish probable cause exists (i.e. prove that a crime probably occurred and that the Defendant probably committed it). A standard that is comparatively easy for the D.A. to meet.
Another difference is since the burden is lower the potential ramifications for the Defendant at the time of the hearing are not as stringent either.
At the conclusion of the Preliminary Hearing there is no sentencing hearing or jail time to be served, instead the charges are typically bound over by the Judge to the Grand Jury for a determination of whether an Indictment should be returned.
Though it is possible for the charges to be dismissed after a Preliminary Hearing, it’s rather uncommon due to the reduced legal standard.
So why would you make the decision to have a Preliminary Hearing?
The primary advantage to holding a Preliminary Hearing is the opportunity provided to force those persons alleging a crime has been committed to testify, under oath, as to their knowledge of the alleged crime and the Defendant’s involvement, if any.
By doing so the Defendant has “locked down” valuable testimony precluding any subsequent changes in testimony at a later jury trial. If a witness changes his or her story at the subsequent trial then valuable inferences can be drawn by that jury as to that witnesses’ truthfulness. The Defendant who waives his right to a Preliminary hearing does so at his peril as it is the only opportunity he will have in confronting his accuser before a trial on the merits is held.
A Preliminary Hearing, therefore, becomes a very important tool for your criminal defense attorney. This tool can assist your attorney in the preparation and presentation of your defense.