Preliminary Hearings

A preliminary hearing or “probable cause” hearing is a screening process or check on the prosecutor to provide probable cause that a felony was committed.  If you are unable to post bond then your preliminary hearing has to happen within 10 days from the time you are arraigned.  If you are out of jail, your preliminary hearing has to happen within 15 days.  If you decide to have your preliminary hearing and the prosecutor provides probable cause then your case will be transferred or bound-over from municipal court to the common pleas court in your county. 

In many counties in Ohio, the grand jury does not meet often (sometimes as infrequently as once per month or every other month). Thus, preliminary hearings are held in nearly every felony criminal case. However, in larger counties preliminary hearings are rarely held. This is because the grand jury meets frequently and the prosecutor can seek an indictment before the expiration of the 10-day or 15-day period.

Should I Waive or Conduct the Preliminary Hearing?

It depends.  Most prosecutors do not like to spend the time conducting a preliminary hearing. In the vast majority of cases the judge will find probable cause and transfer the case to the common pleas court because probable cause is a low standard of proof.  Often if you are in jail, the prosecutor will offer to lower your bond if you waive your right to the preliminary hearing.  If you are having trouble making bond, it may make sense to waive the preliminary hearing so you are out of jail during the pendecy of the case.

However, preliminary hearings can be a valuable discovery device for the defense. It allows you to cross-examine witnesses and understand what exactly they may say at later hearings or trial. Moreover, the cross-examination is under oath and “on the record.” Therefore, the prosecutor’s witnesses will not be able to change their testimony later at trial.