Call us today


Preliminary Hearing

If the police arrest and put you in custody for any crime you commit, the prosecutor often decides whether to file charges against you. Usually, all criminal cases begin with a not-guilty arraignment. Then, the court will set your case for several pretrial hearings over weeks or months. If you decide to enter a plea, you will be free to do so, and the court will set your case for sentencing. If you refuse a plea, the court assigns your case for trial. However, the court will first schedule a preliminary hearing. If the police arrest you for any criminal offense, you must attend a preliminary hearing. Therefore, you need a criminal defense attorney to walk with you, helping you to understand the justice system. Our attorneys at the Phoenix Criminal Attorney are ready to help you get a fair trial and sentencing.

The Preliminary Hearing In Arizona Explained

When the police arrest you and put you in custody, the first appearance you make in court is known as a preliminary hearing. The preliminary hearing often takes place in a regional court center or a justice court. Usually, the hearing takes place before a magistrate or a justice of the peace in the precinct where the purported offense happened.

The prosecutor will have the chance to present evidence against you during the hearing. The prosecutor must demonstrate to the magistrate that there is probable cause to believe there was a law violation. A prosecutor should also prove that you violated the law. Generally, police reports, hearsays, and even illegally obtained evidence are presented during a preliminary hearing. Your criminal defense attorney can also interrogate any witness presented to prove probable cause. Based on the prosecutor's evidence, the magistrate will decide if there is probable cause to charge you.

Your attorney will also be allowed to present their evidence to rebut the prosecution’s finding of probable cause. Your attorney must present their evidence unless the magistrate decides that, even if the evidence were valid, it would not be sufficient to overturn the finding of probable cause.

Typically, preliminary hearings are always on the record. If a witness gives contradicting testimony in the case in the future, the court could use this inconsistent testimony to undermine the witness’s credibility.

The magistrate will sign an order to send your case to a superior court if they decide there is probable cause to believe you committed an offense. The superior court will assign your case a criminal number, a CR, and the date for the arraignment. The magistrate will dismiss the criminal charges against you if he decides there is no probable cause to support the charges.

Additionally, if you commit a felony in Arizona, you have a right to a preliminary hearing. The preliminary hearing must take place within the following period:

  • If you are in custody, ten days of initial appearance.
  • If you are on a pretrial release or out on bail, twenty days of the initial appearance.

The only exceptions to this period are as follows:

  • The court already made a probable cause finding during a bail bond or release hearing.
  • The magistrate issues a continuance on the preliminary hearing.
  • You just came from a juvenile court.
  • You waived your right to a preliminary hearing.
  • The criminal complaint against you no longer exists.

Arraignment Hearing

The arraignment hearing is where you will receive an official communication of the criminal charges against you. This hearing is a fast but formal and essential part of the criminal proceedings where you can enter a plea. The court will do the following during the arraignment:

  • Order you to be fingerprinted within 20 days if it has not been done already if you have been charged with a felony case, a sex crime, domestic violence, or driving under the influence.
  • Appoint an attorney for you, if necessary.
  • Notify you that, while you have the right to be present, all court proceedings could still go on if you are absent, except for sentencing.
  • Warn you that not appearing at a future court date could lead to a criminal charge for failure to appear and an arrest warrant.
  • Provide written notice of the dates and deadlines for other court proceedings.
  • Set a date for the trial or a pretrial conference.
  • Enter your plea of not guilty, guilty, or no contest.

The Prosecutor And Grand Jury Indictment

At times, prosecutors in Arizona prefer pursuing an indictment from a grand jury instead of a finding of probable cause in a preliminary hearing. As a result, the prosecutors will cancel or vacate the preliminary hearing if they secure a grand jury indictment.

The prosecutors can only get a grand jury to indict you if they provide sufficient evidence of probable cause to believe you committed the offense. Once the prosecutor secures an indictment, the hearing is duplicative. The prosecutor must prove this same case in the preliminary hearing. Generally, it is common for prosecutors to take this path because they prefer grand juries over preliminary hearings.

Difference Between The Grand Jury And The Preliminary Hearing

 Unlike preliminary hearings, grand juries are confidential and occur behind closed doors. Neither you nor your defense attorney can attend. Often, you and your attorney would not know that a grand jury is in session. Therefore,  you cannot contest the prosecutor's case. It also means that the victim or witness testimony of the alleged crime is not subject to cross-examination. Grand jury makes it easy for the prosecutors to proceed with their charges because it is easy to prove that there was probable cause. The criminal charges against you from a grand jury are listed in an indictment.

On the other hand, you and your criminal attorney are allowed to attend a preliminary hearing if you face felony charges. You and your attorney have a right to present your evidence at the preliminary hearing to rebut the prosecution's allegations that there is probable cause to file the charges. The charges filed against you in the superior court by the county office often come in the form of a direct complaint.

Grand Jury

Typically, a grand jury is a group of nine to sixteen individuals. Their work generally reviews possible criminal charges that the prosecutor intends to file. They often remove the charges that are not supported by probable cause.

Grand jurors can be typical members of society. They do not require legal knowledge. They only need a few qualifications, including:

  • Not been adjudicated as mentally incompetent or insane
  • Not having a felony-level conviction on their criminal background or, if they do, their civil rights must have been restored.
  • Be a resident of the jurisdiction in which the grand jury is going to sit
  • Be a U.S citizen
  • Be at least 18 years old

Individuals with the above qualifications are eligible to serve on a grand jury. Individuals are picked randomly to serve on the grand jury the way individuals are selected to serve on a trial jury. Often, individuals are picked up via official summons in the mail. Generally, the grand jurors serve for a period that is based on the size of their county as follows:

  • If the county has more than 200,000 people, grand jurors will serve for 120 days
  • If the county has less than 200,000 people, grand jurors will serve for 180 days

A grand jury usually works one day per week, but it also depends on the county. Grand jurors could be dismissed from hearing a particular criminal case for the following reasons:

  • Biased or prejudiced for or against the state or the defendant
  • Closely related to the person under investigation, a victim, or a witness in the charge
  • Directly or indirectly interested in the outcome of the charge
  • A witness in the offense

Grand Jury Proceedings

The grand jury proceedings usually take place behind closed doors and in secret. First, the prosecutor will table their evidence before the grand jury, showing that the offense was committed and that you committed it. The grand jury will then determine if the charges filed by the prosecutor are supported by probable cause. Typically, the prosecutor's charges depend heavily on the police report and oral testimony from the following people:

  • An expert witness if the grand jurors require an explanation of complicated issues
  • Any witnesses who saw what happened
  • The victim
  • A detective
  • A police officer accompanying a witness who is in custody
  • An interpreter
  • A court reporter
  • One or more county attorneys

Once the prosecutor tables their charges, everyone will be dismissed from the room. The grand jurors will then convene and deliberate. For example, if 9 of the 16 jurors agree that there is sufficient proof to support probable cause, the grand jury will issue an indictment against you.

A Draft Indictment

If the grand jury decides to indict you, the prosecutor will serve you with a draft indictment highlighting the criminal charges that he/she would file against you. However, the grand jury can change the draft indictment, and the true bill is the final version.

The prosecutor can file several criminal offenses through a grand jury indictment. The crimes include white-collar crimes like:

  • Investment fraud
  • Money laundering
  • Forgery
  • Tax evasion
  • Embezzlement

Often, white-collar offenses are initiated with an indictment because the police do not need to arrest you immediately.

Federal offenses also go to the grand jury for an indictment. They include:

  • Securities fraud
  • Immigration offenses
  • Cybercrimes
  • Interstate drug trafficking

High-profile cases also go to a grand jury. The prosecutors often do so to protect against a potential claim that the charges aren't backed by probable cause. The cases include:

  • Felony crimes against powerful or famous people, from driving under the influence to bribing an official
  • Class 3 felonies like second-degree burglary or aggravated robbery
  • Class 2 felonies like manslaughter, sexual assault, or extortion
  • Class 1 felonies like murder

Vacated or Scratched Preliminary Hearing

Vacated or scratched preliminary hearings are the canceled hearings.  A ‘vacated hearing’ is when the prosecutor decides to secure a grand jury indictment. It means there is no sense in having both a preliminary hearing and a grand jury indictment because they involve finding probable cause. Therefore, the hearing will be canceled or vacated.

A ‘scratched hearing’ is where the prosecutor is not ready to file formal criminal charges and prosecute the charges by the date of the hearing. Scratched hearings are usually canceled, and the law allows the prosecutor to file standard charges later. Often, the law will give prosecutors seven years to file a felony case in line with the requirements of Arizona’s criminal statute of limitations. Therefore, the prosecutor will have seven years to charge you with any of the following crimes:

  • Possession of drug paraphernalia
  • Aggravated domestic violence
  • Theft of between $3,000 and $4,000
  • Burglary
  • Armed robbery

The law allows prosecutors to file most misdemeanors within one year. However, in severe moving crimes, the prosecutor has two years to file the charges. Severe offenses include:

  • Felony offenses involving the falsification of public records
  • Misuse of public funds
  • Participation or assisting in a criminal syndicate
  • Class two felonies involving weapons or explosives, like the unlawful discharge of a firearm or misconduct involving weapons
  • Violent sexual assault
  • Sexual crimes, like sexual assault or sexual explosion of a child, are class two felonies.
  • Conspiracy to commit homicide if it leads to death
  • Homicide, a class one felony

Frequently Asked Questions

There are common questions regarding preliminary hearings in Arizona. They include:

Can I Waive The Preliminary Hearing And Go Straight To Arraignment?

The law in Arizona allows you to waive your right to a preliminary hearing. You could consult a criminal defense attorney, establish an attorney-client relationship, and ascertain if waiving this right is wise. You could waive this right for the following reasons:

  • To speed up the criminal procedure
  • If you have decided to plead guilty or no contest
  • The prosecutor is holding a plea offer open in the superior court
  • The prosecutor is offering a lower bail bond, better conditions, or release on their recognizance in exchange for the waiver

On the other hand, you could refuse to waive this right for the following reasons:

  • Obtaining testimony from the witnesses to create inconsistent statements in future
  • The opportunity to cross-examine witnesses can show how reliable they are
  • The hearing forces the prosecutor to reveal what evidence they have

When Does The Preliminary Hearing Take Place In A Criminal Case?

The preliminary hearing takes place early in a criminal case. Once the police arrest you, they must take you to a magistrate for your initial appearance within 24 hours. The magistrate will schedule the preliminary hearing at your initial appearance. The magistrate must schedule the preliminary hearing within ten or twenty days of your initial appearance, depending on whether you will go behind bars.

The magistrate will "bind over" your case to the superior court if the preliminary hearing ends with a finding of probable cause. In the superior court, the next court date is often the arraignment. There would also be a plea agreement, an initial pretrial conference, and a sentencing date.

During the preliminary hearing, the burden of proof for the prosecutor or the county attorney is low. Both only need to provide substantial evidence that you probably violated the law. Unlike the proof beyond a reasonable doubt necessary for a conviction at trial, this is a far lower standard of proof.

Can I Appeal A Probable Cause Finding?

You can appeal a magistrate’s probable cause finding. Your criminal defense attorney can file a motion for a new probable cause finding to appeal the outcome of the preliminary hearing. Your attorney can do so within 25 days of the preliminary hearing. The motion must provide the evidence that:

  • There was not enough evidence, or the probable cause finding was not supported by credible evidence, with specific details about what was lacking
  • Your rights were violated

The superior court will send your case back to the magistrate for another court hearing if it grants the motion for a new finding. The magistrate must hold a new preliminary hearing within 15 days. If the magistrate fails to hold the hearing within 15 days, the charges against you could be dropped. 

Find a Phoenix Criminal Defense Attorney Near Me

If you face criminal charges, a preliminary hearing is often a brief matter designed to allow the court to set another hearing date. When you seek the services of a criminal defense attorney to represent you, remember that he/she speaks for you. Therefore, you should consult the right attorney to walk with you.

Have you or your loved one been involved in a criminal defense case, and have questions regarding the preliminary hearing?

We can help. At Phoenix Criminal Attorney, our team and staff are dedicated to helping and representing you. We will take time to get to know you and understand your case, and we will be able to guide you in the best way possible. Call us at 602-551-8092 and talk to one of our attorneys.

Contact Us

Contact Us Today

Icon Hour

Hours of Operation

Mon-Fri: 8am-8am

Saturday: 8am-8am

Sunday: 8am-8am

Contact us today by calling 602-551-8092

We will give you a free, no-obligation consultation and can give immediate attention to your family law legal needs.

Jn Popup

Charged With a Crime?

Call us now to assess your charges and explain the difference a criminal attorney can make on your case

Contact Us