What Happens at a Preliminary Hearing in Virginia?
Attorney Nicole Naum explains what a preliminary hearing is and four things that may happen in District Court during the hearing.
“What do you mean I have a preliminary hearing, but it’s not the actual hearing?”
That question comes up often because the name is confusing. A preliminary hearing is an important stage in many Virginia felony cases, but it is not the trial.
In the first installment of Battlefield Law Group’s Legal Jargon Simplified series, founder and criminal defense attorney Nicole Naum explains what a preliminary hearing is and four things that may happen when your case reaches that stage.
What Is a Preliminary Hearing?
A preliminary hearing is generally used to determine whether there is enough evidence for a felony charge to continue toward Circuit Court. The judge is not deciding whether someone is guilty beyond a reasonable doubt. Instead, the court is looking at whether there is sufficient probable cause for the case to move forward.
Virginia law gives a person charged with a felony the right to a preliminary hearing unless that hearing is waived in writing.
Four Things That Can Happen at a Preliminary Hearing
A scheduled preliminary hearing does not always mean witnesses will testify that day. Depending on the case, several things may happen.
1. The Hearing May Be Continued
Sometimes the hearing is moved to another date. The defense may still be reviewing evidence, additional investigation may be needed, or the attorneys may need more time to discuss the case.
A continuance does not necessarily say anything about the strength or ultimate outcome of the case.
2. The Charge May Change or Be Dropped
A felony charge may sometimes be amended to a misdemeanor, depending on the evidence and the circumstances of the case.
The Commonwealth may also choose not to pursue the charge at that time through what is called a nolle prosequi, often shortened to “nolle pros.”
These are very different outcomes, so it is important to understand exactly what is being proposed.
3. The Preliminary Hearing May Be Waived
A defendant may waive the right to a preliminary hearing.
That does not mean waiving it is automatically a good or bad decision. There may be strategic reasons to do so, including situations where the Commonwealth is offering something in return.
The important question is whether giving up that right makes sense for the specific case.
4. The Preliminary Hearing May Go Forward
If the hearing takes place, the Commonwealth presents evidence and the defense may cross-examine witnesses.
The judge then decides whether there is enough evidence at the probable-cause level for the felony charge to continue.
For the defense, the hearing can also provide an early opportunity to hear testimony and learn more about how the Commonwealth intends to present the case.
Why Can a Preliminary Hearing Matter?
Even though it is not a trial, a preliminary hearing can be strategically important. It may give the defense an opportunity to hear testimony, test parts of the Commonwealth’s evidence, and better understand where the case may be headed. That is also why decisions about whether to hold, continue, or waive a preliminary hearing should not be treated as routine.
At Battlefield Law Group, we approach felony cases with the possibility of trial in mind from the beginning. Early decisions can affect later strategy, and we want those decisions to be made deliberately.
Is There Automatically a Transcript?
Not necessarily. Virginia’s General District and Juvenile and Domestic Relations District Courts are courts not of record, so there is not automatically a court reporter transcribing every hearing. In some serious cases, a defense attorney may determine that arranging for a court reporter is worthwhile to preserve testimony for later use.
Frequently Asked Questions About Preliminary Hearings in Virginia
Is a preliminary hearing the same as a trial?
No, a preliminary hearing does not determine guilt beyond a reasonable doubt. Its purpose is generally to determine whether there is enough evidence for a felony charge to continue.
Does every felony case have a preliminary hearing?
A person charged with a felony generally has the right to one, but the hearing can be waived. The way a felony reaches Circuit Court can also depend on the procedural history of the case.
Can a felony charge be dismissed at a preliminary hearing?
It is possible. If the court does not find sufficient cause for the charge to continue, the charge may be dismissed at that stage. Other outcomes may also occur before or during the hearing.
Should I waive my preliminary hearing?
There is no one-size-fits-all answer, but generally no. Waiving a preliminary hearing can sometimes be part of a strategic decision, but it means giving up an important right. The decision should be based on the evidence, the case strategy, and what is being offered in return.
What happens after a preliminary hearing?
If the judge finds sufficient probable cause, the felony charge may move forward toward Circuit Court. That does not mean the defendant has been found guilty.
Facing a Felony Charge in Virginia?
A preliminary hearing can happen early in a felony case, but the decisions made at that stage can affect what comes next. Battlefield Law Group represents clients throughout Northern and Central Virginia, with our headquarters in Manassas, Prince William County, and a satellite office in Forest, Virginia, serving the Lynchburg area.
Our attorneys explain the process clearly, evaluate the evidence, and prepare cases with trial in mind from the beginning. If you have questions about an upcoming preliminary hearing or a criminal charge in Virginia, contact Battlefield Law Group to discuss your case. ¡Sí, Hablamos Español!
