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What is a Preliminary Hearing in Federal Court?

Posted by John Rogers | Mar 23, 2021

Two charge sheets may be filed against the accused. First, the grand jury may issue an indictment formally charging the accused. Second, the prosecutor may file a complaint alleging facts and an affidavit from an agent supporting the defendant's arrest.

When a prosecutor pursues charges with a complaint, the defendant has the right to a preliminary hearing within a specific timeframe from their arraignment. An accused may waive a grand jury indictment if it's in their best interest to do so. If the defendant elects to move forward with a preliminary hearing, then the judge will set a date for all the parties to appear for the hearing.

A preliminary hearing is held before a U.S. Magistrate Judge, and it is to determine whether the government has sufficient probable cause to move forward with their case. Probable cause is a reasonable basis for believing that a crime has been committed by the accused. It is a relatively low threshold evidentiary standard that the government can fulfill in most of its cases.

At a preliminary hearing, witnesses may testify, and physical evidence may be produced. The prosecutor is not required to produce all their evidence. In most instances, the prosecutor will elect only to produce enough evidence to meet their evidentiary burden.

A criminal defendant will have the opportunity to cross-examine the government's witnesses. The accused may be permitted to assert an affirmative defense as long as it falls within the scope of the hearing and the defendant can show an offer of proof.

If the government fulfills its burden, the judge will hold the defendant to answer for the charge(s). After that, the prosecutor will file a charge sheet called an information. The accused will then be arraigned on the information and be assigned a U.S. District Judge for trial.

If you face federal charges, you need the help of an experienced federal criminal defense attorney. Contact us today to schedule a free case evaluation to discuss all your defenses, rights, and all of your options. 

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John Rogers

*State Bar Board Certified Specialist in Criminal Law *Top 40 Under 40 by the National Trial Lawyers Association *Selected “Rising Star” by Super Lawyers Magazine *Federal Criminal Defense Representation Nationwide *Personalized Attention & 24/7 Accessibility


Orange County federal crimes lawyer John Rogers is committed to providing exceptional representation all throughout California federal courts.

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