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Concept
Preliminary hearing
Summary
In common law jurisdictions, a preliminary hearing, preliminary examination, preliminary inquiry, evidentiary hearing or probable cause hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial. At such a hearing, the defendant may be assisted by a lawyer.
In Canada, a preliminary hearing is sometimes referred to as a preliminary inquiry. During the preliminary inquiry, a hearing is held by the court to determine if there is enough evidence to justify a trial. Preliminary inquiries are only held when a person is charged with an indictable offence. The Crown Attorney may call witnesses. If there is not enough evidence, the court will dismiss the charge(s).
In the aftermath of the 2016 Jordan decision, in which the Supreme Court of Canada imposed time limits on the Crown to bring criminal cases to trial, the Crown has started to use the direct indictment procedure more frequently.
In Scotland, a preliminary hearing is a non-evidential diet in cases to be tried before the High Court of Justiciary. It is a pre-trial diet to enable the court to be advised whether both parties, the prosecution and the defence, are ready to proceed to trial and may also deal with ancillary procedural matters.
In the United States, at a preliminary hearing the judge must find that such evidence provides probable cause to believe that the crime was committed, and that the crime was committed by the defendant. There is a right to counsel at the preliminary hearing.
The conduct of the preliminary hearing as well as the specific rules regarding the admissibility of evidence vary from jurisdiction to jurisdiction. Hearsay is typically allowed. If the court decide that there is probable cause, a formal charging instrument (called the information in some jurisdictions) will be issued; and the prosecution will continue. If the court should find there is no probable cause, then typically the prosecution will cease.
Official source
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