What Questions Does A Judge Ask During A Preliminary Hearing?

what questions does a judge ask during a preliminary hearing

Typically, the preliminary hearing occurs shortly after formally filing charges against the defendant. For instance, federal law mandates that a preliminary hearing should be held between 14 and 21 days following the defendant’s initial appearance. (18 U.S.C. 3060; Federal Rule of Criminal Procedure 5.1.) Many states have comparable time limits.

In actuality, defendants can and frequently do “waive time,” allowing the preliminary hearing to get postponed until a time that is agreeable for all main parties involved. Delays typically favor the defense; hence it is customary for defendants to agree to waive time on the recommendation of their counsel. So, often it’s a question for defendants what does a judge ask during a preliminary hearing?

When does a Preliminary Hearing Take Place?

The preliminary hearing is often convened when the defendant submits a not-guilty plea, and the prosecution must demonstrate sufficient evidence to prosecute the defendant criminally. Preliminary hearings are not usually necessary, and the defendant may elect to forego one.

It must be convened within 14 days of the defendant’s initial court appearance if he or she is kept in jail and must be arranged within 21 days of the initial appearance if the defendant is out on bond.

The preliminary hearing is comparable to a pre-trial before the main trial that is going to take place. The prosecution will present witnesses and evidence, while the defense may cross-examine prosecution witnesses. However, the defense cannot object to the use of specific evidence. The preliminary hearing may introduce material that could not be shown to the jury at trial.

If the court determines the reasonable cause to think the defendant committed the crime, a trial will be arranged shortly. However, charges will get dismissed if the court does not consider the evidence that provides reasonable cause for the defendant’s offense.

What Questions Does a Judge Ask During the Preliminary Hearing?

Here is a list of some question examples that a judge can ask during a preliminary hearing:

  • A judge may obtain a comprehensive account of what took place, including information on where the witness was coming from, what the witness was doing immediately before the event, and where the witness was heading.
  • Who else was present except the witness?
  • What did the witness have his or her attention focused on immediately prior to the moment when the witness first observed the offender?
  • Where exactly did the encounter occur, if you don’t mind me asking? (You should strive to have this put into writing and ask the witness to sketch a diagram of the situation.)
  • What, exactly, came to pass? Is it possible that there was more than one individual involved? (You must determine each person’s specific responsibilities in this situation.)
  • The Judge determines which of the alleged offenders will stand trial if more than one person is responsible for the crime. (Where was the defendant at all times, concerning the other individuals who committed the crime and witnesses?)
  • Who exactly was the offender who communicated with the witness?
  • When did the witness first become aware of the offender(s)? How far apart were they from one another? What caused the witness to focus on the offender(s)?
  • Was the witness robbed of any of their belongings? After it was taken, what steps were taken to dispose of it?

Defense Attorney’s Goals at the Hearings

Among the objectives of a defense attorney in a preliminary hearing are the following:

  • Provide a basis for impeaching the prosecutor’s witnesses,
  • safeguarding a witness’s evidence
  • Create a foundation for plea bargaining, and
  • Assess the case’s strengths and shortcomings.
  • Elucidate defenses that were not obvious before the hearing.
  • Elucidate witnesses who will not withstand cross-examination, or
  • Prove to the prosecutor that his or her case is weak.

Guidelines During the Preliminary Hearing?

Preliminary hearings are subject to a significant number of procedural rules that govern actual trials. For instance, non-specialist witnesses (also known as ordinary witnesses) are only allowed to testify about what they have personally observed and cannot provide their opinions. 

The defense and the prosecution can raise objections to the evidence and testimony presented by the opposing side. 

What are the Various Outcomes that Could Possibly Result from a Preliminary Hearing?

In most cases, one of these three results can be expected from a preliminary hearing:

  • Go to trial. In most cases, the defendant must appear in court to answer (also known as being “bound over”) for the initial accusation.
  • Lower charges. When the court hears a case involving a felony charge, there is a possibility that the Judge will reduce the charge to a misdemeanor or a less severe felony.
  • Dismissed! The Judge will throw out a marginal fraction of the cases they hear.

What Steps to Take Next?

A prosecution will typically submit a supplementary document, commonly referred to as “information,” once a defendant has been bound for trial. This action announces the beginning of future court procedures.

Defendants who have posted bail are often allowed to stay free after the preliminary hearing; nevertheless, they are obligated to appear in court for the subsequent hearing that has been set. Defendants already detained will remain in jail until their next scheduled court appearance; however, they will have the opportunity to resubmit their request for bail during the preliminary hearing. 

The decision to release someone on bail may always be reviewed, and the Judge may decide to release the defendant if the real facts (as stated at the preliminary hearing) are not as severe as the police report made them out to be.

At this stage, the case will move on in one of the following ways, depending on the jurisdiction and the severity of the crime.

  • In jurisdictions with more than one court level, the defendant may have to go through the arraignment process again, the second time in front of a higher court.
  • It is possible for the parties to immediately go on to plea talks or the trial in the same court that presided over the preliminary hearing.
  • The Judge may postpone either the pre-trial conference, the trial itself, or later.


A preliminary hearing resembles a mini-trial in which the prosecution calls the witnesses and introduces the evidence so the defense can cross-examine the witnesses. It is uncertain what question a judge asks during a preliminary hearing. But yes, one should be well prepared for the preliminary hearing.


Should I refuse the preliminary hearing?

Depending on the specifics of your case, you may or may not be required to renounce certain rights. Generally, a waiver indicates a forthcoming negotiated or open guilty plea or diversionary program.

Will I be charged and sentenced during the preliminary trial?

It is something that usually doesn’t happen. The court’s role is not to determine whether the defendant is guilty or innocent. Instead, it is the Judge’s responsibility to evaluate whether there is sufficient evidence to proceed with the charges.

What comes after the preliminary hearing?

The charges will be dropped if the court determines that there is no probable cause to prosecute you. If any further charges are supported by probable cause, you will be sent to the trial court for all subsequent proceedings.

What happens if the Judge does not believe enough evidence exists?

After conducting a preliminary hearing, the Judge may dismiss your charges if they determine that the prosecution lacks sufficient evidence to prosecute you. It concludes the prosecution’s case against you.

What will happen if the Judge allows my case to proceed?

If the Judge determines sufficient evidence to continue the case against you, both parties will commence trial preparations.