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Arrested for a felony in California? You will likely face a preliminary hearing before your case goes to trial.
The prelim is not a trial. You cannot be convicted at a preliminary hearing. The judge is deciding one thing: does the prosecution have enough evidence to force you to stand trial?
That is a low bar. But it is also your first chance to see the prosecution’s case, cross-examine their witnesses, and identify weaknesses before trial.
Most people charged with felonies do not understand what happens at a preliminary hearing or why it matters. This guide explains the process, your rights, possible outcomes, and how a criminal defense attorney uses the prelim to build your defense.
Facing a preliminary hearing in Orange County, Los Angeles, Riverside, or San Bernardino? Call (866) 811-4255 for a free case review. We answer 24 hours a day for emergencies.
A preliminary hearing is a court proceeding where a judge decides whether there is probable cause to believe you committed the felony you are charged with.
California Penal Code Section 872 requires the prosecution to present enough evidence to convince the judge that:
Probable cause is a much lower standard than “beyond a reasonable doubt.” The prosecution does not need to prove guilt. They just need to show it is reasonably likely a crime occurred and you did it.
If the judge finds probable cause, your case is “held to answer” and moves forward to trial. If the prosecution fails to meet that standard, some or all charges can be reduced or dismissed.
Preliminary hearing vs. arraignment: An arraignment is where you are formally told what you are charged with and enter a plea. A preliminary hearing comes later and tests whether the charges have enough evidence to proceed.
Preliminary hearing vs. trial: A trial happens in front of a jury (or judge if you waive a jury). The standard is “beyond a reasonable doubt.” At a prelim, there is no jury. The judge applies a much lower standard of proof.
Preliminary hearings only apply to felony cases. Misdemeanor cases skip the prelim and go straight from arraignment to trial or plea negotiations.
California law sets strict timelines for preliminary hearings:
These deadlines protect your constitutional right to a speedy trial. Prosecutors and defense attorneys can request continuances (delays), but the judge must agree.
You have the right to waive (give up) your preliminary hearing. Your attorney might advise waiving if:
Waiving the prelim means your case moves directly to arraignment on the information (the formal charging document for trial). You do not waive your right to a trial.
Never waive your preliminary hearing without talking to a lawyer. Most defendants benefit from forcing the prosecution to show their hand early.
Walk into any felony courtroom in Orange County or Los Angeles and you will see preliminary hearings that follow the same basic process.
The prosecutor goes first. They call witnesses (usually police officers, alleged victims, or forensic experts) and present physical evidence like photos, documents, or recorded statements.
The witnesses testify under oath. The prosecutor asks questions designed to establish that a crime occurred and you likely committed it.
The prosecution does not need to present their entire case. They present just enough to meet the probable cause standard. That means you will not see all their evidence at the prelim.
Your attorney has the right to cross-examine every prosecution witness. This is where your defense begins.
Good cross-examination at a prelim serves multiple purposes:
Your attorney is not trying to win the prelim. Judges almost always find probable cause. Your attorney is gathering intelligence for trial.
You have the right to present witnesses and evidence at your preliminary hearing. Most defense attorneys do not.
Why? Because anything you present can be used against you at trial. You do not want to show the prosecution your defense strategy before you have to.
There are exceptions. If a key witness is unavailable for trial (moving out of state, terminally ill), your attorney might present their testimony at the prelim to preserve it.
The judge is not deciding guilt or innocence. The judge is acting as a filter to prevent baseless prosecutions.
California courts have described the standard at a preliminary hearing as “slight or even a preponderance” of evidence. That is far lower than the “beyond a reasonable doubt” standard at trial.
In practice, judges bind over (send to trial) the vast majority of cases. If the prosecution presents a coherent theory and at least one credible witness, probable cause usually exists.
Three things can happen at your preliminary hearing.
1. Case Is “Held to Answer” (Bound Over for Trial)
This is the most common outcome. The judge finds probable cause and orders you to stand trial on the felony charges.
Your case moves to arraignment on the information, where you will be formally charged again (this time with the information, not the complaint). Pre-trial motions, discovery, and plea negotiations follow.
Being held to answer does not mean you will be convicted. It means the case proceeds to the next phase.
2. Charges Are Reduced to Misdemeanors
Sometimes the evidence supports a crime, but not a felony-level crime.
Example: You are charged with felony grand theft (stealing property worth more than $950). The prosecution’s evidence shows the stolen item was worth $600. The judge can reduce the charge to misdemeanor petty theft and transfer your case to misdemeanor court.
Charge reductions at the prelim are a significant win. Misdemeanors carry lighter penalties, less stigma, and more plea-bargaining leverage.
3. Some or All Charges Are Dismissed
If the prosecution fails to present probable cause on one or more charges, the judge can dismiss those charges outright.
Full dismissals are rare but not impossible. Common reasons for dismissal:
Even if only one charge is dismissed, it narrows the case and strengthens your negotiating position.
Your Rights at a Preliminary Hearing
You have constitutional protections at every stage of a criminal case, including the prelim.
You have the right to be represented by a lawyer at your preliminary hearing. If you cannot afford a private attorney, the court will appoint a public defender.
Public defenders are real lawyers who handle criminal cases every day. But they carry enormous caseloads (often 500+ active cases at a time). A private criminal defense attorney has more time to investigate your case, prepare witnesses, and negotiate with prosecutors before the prelim.
If you can afford private counsel, hire one before your arraignment. The work your attorney does between arraignment and prelim can determine whether charges are reduced or dismissed.
Right to Cross-Examine Witnesses
Your attorney has the right to question every witness the prosecution calls. The judge cannot limit cross-examination unless it becomes repetitive or harassing.
You have the right to testify at your preliminary hearing. Testifying is almost always a mistake.
If you testify at the prelim, the prosecutor gets to cross-examine you under oath. Everything you say is recorded and can be used against you at trial. If your testimony conflicts with anything you said during your arrest or anything you say later, the prosecutor will use it to destroy your credibility.
Your attorney will tell you not to testify unless there is a compelling strategic reason.
You have the right to call your own witnesses and submit evidence. As explained earlier, most defense attorneys do not present evidence at the prelim because it reveals your defense strategy too early.
You can waive your preliminary hearing if your attorney advises it. You cannot be forced to give up this right.
A preliminary hearing is not something you handle alone or with a public defender who met you 10 minutes before the hearing started.
Here is what an experienced criminal defense attorney does before and during your prelim:
Investigates the case early. Police reports, witness statements, surveillance video, forensic reports. Your attorney reviews everything the prosecution has and identifies inconsistencies before the hearing.
Cross-examines prosecution witnesses strategically. Your attorney is not trying to win the prelim. They are locking in testimony, exposing weaknesses, and preserving issues for appeal. A skilled cross-examination can turn a prosecution witness into a defense asset at trial.
Negotiates charge reductions before the prelim. Prosecutors know prelims take time and resources. If your attorney identifies serious weaknesses in their case, they may offer a reduced charge or favorable plea deal to avoid the hearing.
Preserves issues for appeal. If evidence was obtained through an illegal search, your attorney raises that issue at the prelim and creates a record for a motion to suppress. If the judge makes an error, it is preserved for appeal.
Advises whether to waive the hearing. Should you force the prosecution to show their case, or accept a plea deal and skip the prelim? That decision depends on the evidence, the charges, and your goals. Your attorney walks you through the options.
Our Southern California criminal defense team has represented clients at preliminary hearings in Orange County, Los Angeles, Riverside, and San Bernardino courts. When Mo is retained before the prelim, clients gain critical time to investigate, negotiate, and prepare.
Call (866) 811-4255 for a free case review. We do not get paid unless we win your case or negotiate a favorable outcome.
Most people facing felony charges have never been through the criminal justice system. Here are the mistakes we see repeatedly:
You think telling your side of the story will convince the judge to dismiss the charges. It will not. The judge is only deciding probable cause, and your testimony gives the prosecutor free ammunition for trial.
Do not testify unless your attorney tells you to.
If you miss your preliminary hearing, the judge will issue a bench warrant for your arrest. You will be taken into custody, and your bail (if you were out on bail) may be revoked.
If you are sick, in the hospital, or have a legitimate emergency, your attorney can request a continuance. Do not just skip the hearing.
Probable cause is a low bar. The prosecution does not need to prove you are guilty. They just need to show it is reasonably likely you committed the crime.
Defendants hear “the case is weak” from their attorney and assume the judge will dismiss it at the prelim. That rarely happens. Even weak cases survive preliminary hearings and get dismissed later (through motions to suppress evidence, witness credibility problems at trial, or negotiated dismissals).
Public defenders are competent lawyers. They are also overworked and under-resourced. If you hire a private attorney the day before your prelim, they will not have time to investigate, interview witnesses, or negotiate with the prosecution.
Hire private counsel immediately after your arrest if you can afford it. The earlier your attorney gets involved, the better your outcome.
Not every felony case goes through a preliminary hearing. Prosecutors have another option: the grand jury.
A grand jury is a group of citizens (typically 19 people in California) who hear evidence in secret and decide whether to indict you (formally charge you with a felony).
Prosecutors use grand juries when:
Grand jury proceedings are not open to the public. You and your attorney are not allowed in the room. You cannot cross-examine witnesses or present evidence.
Key Differences in Process and Defendant Rights
If a grand jury indicts you, you skip the preliminary hearing entirely and go straight to arraignment on the indictment.
No Preliminary Hearing if Indicted by Grand Jury
You do not get a preliminary hearing if the grand jury indicts you. But you still have the right to challenge the indictment through a motion to dismiss or motion to set aside the indictment if the prosecution committed misconduct or the evidence was insufficient.
What to Expect After Your Preliminary Hearing
Your preliminary hearing is one step in a long process. Here is what comes next.
Arraignment on the Information (If Held to Answer)
If the judge holds your case to answer, the prosecution files an “information” (the formal felony charging document). You are arraigned again, this time on the information.
You will enter a plea (guilty, not guilty, or no contest). Most defendants plead not guilty at this stage and continue fighting the case.
Pre-Trial Motions and Discovery
After arraignment on the information, your attorney files pre-trial motions:
Discovery continues. Your attorney receives police reports, witness statements, lab results, and video evidence. The prosecution must turn over anything that could help your defense (Brady material).
Plea Negotiations Timeline
Most felony cases resolve through plea agreements, not trials. Plea negotiations happen continuously between the prelim and trial.
Your attorney uses weaknesses identified at the prelim to negotiate charge reductions, dismissed counts, or lighter sentencing recommendations.
If the prosecution offers a deal you can accept, you plead guilty or no contest and proceed to sentencing. If no acceptable deal is offered, your case goes to trial.
Trial Preparation
If your case does not resolve through a plea, your attorney prepares for trial. Witness interviews, expert consultations, jury selection strategy, opening and closing arguments.
Trials for felony cases in California typically happen 6 to 12 months after the preliminary hearing, depending on court congestion and continuances.
Facing a preliminary hearing or pre-trial motion deadline? Call (866) 811-4255. Our Southern California criminal defense team handles every stage of felony cases from arraignment through trial and appeal.
Frequently Asked Questions
Can I be convicted at a preliminary hearing?
No. A preliminary hearing is not a trial. The judge is only deciding whether there is probable cause to send your case to trial. You cannot be convicted or sentenced at a prelim.
How long does a preliminary hearing take?
Most preliminary hearings last 1 to 3 hours. Complex cases with multiple witnesses can take a full day or span multiple days.
Simple cases (one or two witnesses, straightforward facts) may be over in 30 minutes.
Can the judge dismiss my case at the prelim?
Yes. If the prosecution fails to present probable cause, the judge can dismiss some or all charges.
Full dismissals are rare. Partial dismissals (one charge dropped, others proceed) happen more often.
Even if your case is dismissed at the prelim, the prosecution can refile charges if they gather additional evidence.
Should I waive my preliminary hearing?
It depends on your case. Talk to your attorney.
You might waive if the prosecution offers a favorable plea deal that requires skipping the prelim, or if the evidence is overwhelming and the hearing will not help your defense.
You should not waive if your attorney believes cross-examination will reveal weaknesses, lock in helpful testimony, or create grounds for a motion to suppress evidence.
What if I miss my preliminary hearing?
The judge will issue a bench warrant for your arrest. If you were out on bail, your bail may be revoked and you will be held in custody.
If you have a legitimate reason (medical emergency, car accident), your attorney can request a continuance before the hearing. Do not just skip it.
Next Steps: Talk to a Criminal Defense Attorney Now
Preliminary hearings move fast. If you are in custody, you have 10 court days. If you are out on bail, you have 60 days.
That sounds like a lot of time. It is not. Your attorney needs time to:
Waiting until the week before your prelim leaves your attorney scrambling. Hiring counsel immediately after your arrest gives you the best chance at charge reductions, dismissed counts, or a favorable plea deal before the prelim even happens.
Call ALL Trial Lawyers at (866) 811-4255 for a free case review. Our criminal defense team represents clients at preliminary hearings in Orange County, Los Angeles, Riverside, and San Bernardino. We answer 24 hours a day for emergencies.
We do not get paid unless we win your case or negotiate a favorable outcome.
Your family, your freedom, and your future are on the line. Call now.
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Mohammad Abuershaid, professionally known as Mo Abuershaid, is the founding partner of ALL Trial Lawyers and one of California’s most trusted authorities in dependency law, juvenile dependency cases, CPS defense, and high stakes CPS cases.