What's a preliminary hearing? Why does your complaint say felony or in some cases complaint for preliminary examination?
Join Joseph M. Fagan of Fagan, Fagan & Davis, one of Illinois' most experienced and respected criminal defense lawyers as he discusses these questions in this video.
We're a criminal defense firm, and we deal with this question on a regular basis. When you're arrested and charged, if your case is a misdemeanor, the complaint, up on top, will say misdemeanor complaint. If you're charged with a felony it will say Felony or it will say Felony Complaint for Preliminary Examination. A Preliminary Examination is another way of saying Preliminary Hearing.
A preliminary hearing is a hearing to determine two things and two things only, not guilt or innocence. First, did a crime occur? Is the conduct complained of in the complaint sufficient to meet the elements of the offense charged? Second, are you the defendant involved in the commission of the crime to the extent that you should stand prosecution?
The burden of going forward with evidence, and the burden of proof of that evidence at this point is on the prosecution, but it is a relatively low burden. It is not beyond a reasonable doubt, but probable cause. Simply put, is there enough to go forward to the next step in the case?
The next step in the case would be the formal felony charge, which is the charge the prosecutor must prove beyond reasonable doubt. During a preliminary hearing the prosecution has to produce its evidence, that's the burden of going forward. They can do that by bringing in testimony of a police officer or any other witness to testify to what other people said or did. We can cross examine and challenge that evidence.
How far we can go in challenging the State's case during a preliminary hearing is within the discretion of the trial judge, the judge deciding the preliminary hearing. He can cut it off quite short if he is convinced at some point, that there is enough evidence to hold your case over for trial and move the case along. Sometimes the judge will allow more cross examination depending on the quality of the evidence, depending on the quality of the witness and the credibility of the witness.
Sometimes a good criminal defense lawyer can make a significant difference in the outcome of the case by attacking the evidence presented at this point.
Remember, a finding of probable cause at this stage of the proceedings isn't about guilt or innocence, it's merely whether there is probable cause to move on to the next step, or arraignment. Preliminary hearing is designed to weed out the weakest, most questionable cases from taking up the time of the court.
If you are facing criminal charges here in Illinois, give us a call at (847) 635-8200 or fill out the form on this page, and we'll be happy to discuss how we can help.