Should Your Lawyer Waive Your Preliminary Hearing?

Conducting a preliminary hearing is one of the most fundamental building blocks of building a great defense for your criminal case. Waiving a preliminary hearing means you give up your right to require the state to put on evidence indicating your guilt. Yet, I see lawyers waive their clients’ right to have a preliminary hearing daily. Waiving a preliminary hearing seems more common in the counties outside of Nashville like Sumner County, Williamson County, and Rutherford County.

A preliminary hearing is usually a very short hearing to determine if probable cause exists to send your case to the grand jury. Probable cause is a low burden of proof unlike beyond a reasonable doubt. Few criminal cases get dismissed at a preliminary hearing. You do get to hear from one or two officers that can make probable cause. The government does not have to make their entire case, but the state must put on enough proof to get probable cause. What does the defense get? The defense gets the opportunity to cross-examine the government’s witnesses.

Here are two examples of what I learned from two preliminary hearings I conducted in the General Sessions Court for Robertson County at Springfield, Tennessee:

1. In the first case, the underage consumption of alcohol charge was dismissed. One small victory. In the possession of marijuana case, we discovered the hotel manager used his pass key to unlock the door which ultimately led to the discovery of the marijuana by White House Police. One charge was dismissed, and we now can make an argument that the search of the hotel room was illegal.
2. In the second case, we learned about the traffic stop, the length of detention, and the circumstances of the arrest. We also discovered the drug dog did not indicate that cocaine was in the car. The fact that the drug dog failed to disclose was omitted from the arrest warrant.

There are always exceptions to the general rule of always conducting a preliminary hearing, but they are few. One is to waive the hearing in order to have the bail bond reduced. On the same day in Springfield, Tennessee, a lawyer waived the hearing due to the possibility of the bail bond being raised. In this case, one victim was blind, and the other one was using a walker. It was probably a good call.

Here is a link to what to expect at a DUI preliminary hearing. The same holds true for most preliminary hearings.

The takeaway is to use the preliminary hearing to learn more about the case most of the time. Sometimes, it is best to fight another day.