Preliminary Examinations
A preliminary examination is a hearing to determine whether sufficient evidence exists to hold a felony defendant for trial. Justice of the Peace Courts may conduct preliminary examinations for certain offenses, serving as a constitutional safeguard against wrongful detention while the district attorney decides whether to prosecute.
Purpose of the Preliminary Examination
Section titled “Purpose of the Preliminary Examination”The preliminary examination serves a narrow but important function: to determine whether probable cause exists to believe the defendant committed the charged offense. It is not a trial on the merits — the JP does not decide guilt or innocence. Rather, the examination screens out cases where the evidence is insufficient to justify continued detention or prosecution.
Constitutional Safeguard
Section titled “Constitutional Safeguard”The preliminary examination protects the defendant’s constitutional rights by ensuring that no one is held in custody indefinitely without a judicial determination that the detention is justified. Without this safeguard, a person could be arrested and held without any review of the evidence.
Not a Trial
Section titled “Not a Trial”The preliminary examination is not a determination of guilt. Even if the JP finds probable cause and holds the defendant for trial, the district attorney still decides whether to file formal charges. The defendant retains all rights to challenge the evidence at trial in district court.
Jurisdiction Limitations
Section titled “Jurisdiction Limitations”Justice of the Peace Courts have limited jurisdiction over preliminary examinations:
Offenses Within JP Authority
Section titled “Offenses Within JP Authority”A JP may conduct a preliminary examination only for offenses that are:
- Non-capital (not punishable by death)
- Not necessarily punishable by imprisonment at hard labor
This limitation exists because more serious offenses require review by a judge with broader criminal authority.
Offenses Outside JP Authority
Section titled “Offenses Outside JP Authority”For capital offenses or offenses necessarily punishable at hard labor, the preliminary examination must be conducted by a district court judge. If a defendant is charged with such an offense and requests a preliminary examination, the JP must decline jurisdiction and refer the matter to district court.
Requesting a Preliminary Examination
Section titled “Requesting a Preliminary Examination”Either the defendant or the state may request a preliminary examination, but specific conditions must be met.
Who May Request
Section titled “Who May Request”- Defendant — Has the right to request an examination to challenge the basis for detention
- State (District Attorney) — May request an examination to establish probable cause on the record
Timing Requirements
Section titled “Timing Requirements”The request must be made before the defendant is indicted by a grand jury or charged by bill of information. Once formal charges are filed in district court, the right to a preliminary examination is waived because the charging decision has already been made.
Waiver
Section titled “Waiver”If the defendant does not request a preliminary examination within a reasonable time, or if the defendant is indicted or charged before the examination is held, the right is waived.
Conducting the Examination
Section titled “Conducting the Examination”When a preliminary examination is requested and the JP has jurisdiction, the examination must be conducted promptly.
Scheduling
Section titled “Scheduling”The examination must be held immediately unless the defendant needs time to procure counsel. The defendant has the right to counsel at the preliminary examination and must be given reasonable time to obtain an attorney if needed.
Parties Present
Section titled “Parties Present”The following persons attend the preliminary examination:
- The defendant
- Defense counsel (if any)
- The district attorney or assistant
- Prosecution witnesses
- Defense witnesses
- The court reporter (to make a record)
Procedure at the Examination
Section titled “Procedure at the Examination”The preliminary examination follows a structured procedure to ensure fairness to both sides.
Presentation of Evidence
Section titled “Presentation of Evidence”The state presents its evidence first, calling witnesses who testify under oath about the alleged offense. The defendant has the right to:
- Be present throughout the proceedings
- Cross-examine prosecution witnesses
- Call defense witnesses
- Testify (though this subjects the defendant to cross-examination)
Sequestration of Witnesses
Section titled “Sequestration of Witnesses”Witnesses may be sequestered — kept separate from each other — until called to testify. This prevents one witness’s testimony from being influenced by hearing what other witnesses said.
Making a Record
Section titled “Making a Record”A record of the preliminary examination must be made. This transcript becomes part of the file transmitted to district court if the defendant is held for trial.
The Probable Cause Determination
Section titled “The Probable Cause Determination”After hearing the evidence, the JP must decide whether probable cause exists.
Standard of Proof
Section titled “Standard of Proof”Probable cause exists when the evidence is sufficient to warrant a person of reasonable caution to believe that:
- An offense was committed, AND
- The defendant committed the offense
This is a lower standard than “beyond a reasonable doubt” required for conviction at trial. The JP need not be convinced of guilt — only that there is enough evidence to justify holding the defendant for trial.
Finding Probable Cause
Section titled “Finding Probable Cause”If the JP finds probable cause, the JP orders the defendant held for trial in district court. The JP must also:
- Fix bail if the offense is bailable (non-capital, non-hard-labor)
- Transmit the record to the clerk of the district court
Finding No Probable Cause
Section titled “Finding No Probable Cause”If the JP finds insufficient evidence to establish probable cause, the JP orders the defendant discharged from custody. However, the district attorney may still file charges if the DA believes the evidence warrants prosecution.
After the Examination
Section titled “After the Examination”Regardless of the outcome, the preliminary examination has consequences for the proceedings that follow.
If Defendant Is Held for Trial
Section titled “If Defendant Is Held for Trial”The JP transmits to the clerk of the district court:
- A transcript of the testimony
- All documents and evidence introduced
- The order holding the defendant for trial
- The bail order (if bail was set)
The district attorney then decides whether to file formal charges. The DA is not bound by the JP’s finding — even if probable cause was found, the DA may decline to prosecute.
If Defendant Is Discharged
Section titled “If Defendant Is Discharged”Discharge at the preliminary examination does not bar subsequent prosecution. The district attorney may still present the case to a grand jury or file a bill of information if the DA believes the evidence supports charges.
The discharge simply means the defendant cannot be held in custody pending the DA’s decision — the defendant must be released.
Rights of the Defendant
Section titled “Rights of the Defendant”The defendant has important rights at the preliminary examination:
Right to Counsel
Section titled “Right to Counsel”The defendant has the right to be represented by an attorney. If the defendant cannot afford counsel, the court must allow reasonable time to arrange for appointed counsel before the examination proceeds.
Right to Present Evidence
Section titled “Right to Present Evidence”The defendant may call witnesses, present documents, and testify. However, any testimony the defendant gives may be used against the defendant at trial.
Right to Cross-Examine
Section titled “Right to Cross-Examine”The defendant may cross-examine all prosecution witnesses. This allows the defendant to test the strength of the state’s evidence.
Right to Make a Record
Section titled “Right to Make a Record”A transcript of the proceedings must be made, preserving the testimony for potential use at trial or on appeal.
Practical Considerations
Section titled “Practical Considerations”In practice, preliminary examinations before JPs are relatively rare. Most occur in district court because:
- Most felony arrests involve offenses that are necessarily punishable at hard labor, beyond JP jurisdiction
- Grand jury indictments often supersede the need for a preliminary examination
- Defense attorneys may prefer district court proceedings
However, the JP’s authority exists as a backup to ensure defendants in rural areas have access to this constitutional protection when district court is unavailable.
Timeline
Section titled “Timeline”| Event | Timeframe |
|---|---|
| Request preliminary examination | Before indictment/information |
| Examination conducted | Immediately (unless time needed for counsel) |
| Record transmitted | Promptly after examination |
| DA filing decision | No statutory deadline |
Related Topics
Section titled “Related Topics”- Magistrate Authority — Overview of JP criminal functions
- Bail — Bail setting after preliminary examination
- Criminal Complaints — How arrests lead to examinations