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What is a Preliminary Hearing for Those Charged with a Crime in Alabama?

Posted by Erik Fine | Aug 21, 2020 | 0 Comments


What is an Alabama Preliminary Hearing 

In Alabama, anyone charged with a felony crime may request a preliminary hearing within thirty days of arrest.  Preliminary hearings were created as a secondary method to establish probable cause and were designed during a time when criminal defendants could sit and "languish" in jail for months without an opportunity to see evidence amassed by the District Attorney or before a Grand Jury could return a "no bill," dismissing unwarranted charges.  A Preliminary Hearing is a necessary procedure for any criminal defendant who has been charged with a felony crime.  It is imperative that an attorney file immediately for a Preliminary Hearing for his client e in District Court if his client is still in jail and unable to make bond after arrest .  A Preliminary Hearing is a "little trial," where the prosecutors evidence is subject to cross-examination by a criminal defendant's lawyer for the sole purpose of establishing probable cause for an arrest.  Evidence may be introduced for the defense and the State must establish probable cause for the felony charges through evidence. The State will rarely present all it's evidence at a Preliminary Hearing. The case against the defendant is also heard in front of a judge, not a jury.  The District Court Judge will determine if the State Prosecutors have met the probable cause burden.  If the judge determines that there is probable cause to believe the defendant has committed the offense charged, in the proper jurisdiction, then he will order the defendant held with or without bond restrictions.  The case will then go to the Grand Jury for further determination.  If the Grand Jury returns a "true bill," then the case will be set in Circuit Court for a Jury Trial.  

Preliminary Hearings and Grand Juries 

The Preliminary Hearing is a fantastic opportunity for the Defendant and his attorney to gain valuable information about the charge and evidence being alleged.  It is very rare that a felony suspect should ever waive a Preliminary Hearing and the accused defendant must only do so after careful consideration with his experienced criminal lawyer.  The hearing could be a valuable source of discovery for the defendant in a future trial, lead to evidence, or in some cases even lead to the State's case being dismissed outright.  If an indictment is returned prior to a Preliminary Hearing being held, the defendant loses his right to the Preliminary Hearing because the case will now be in Circuit Court, and the Grand Jury has found probable cause to indict.  The court has 21 days after a request for a Preliminary Hearing or the defendant must be released and charges dismissed, WITHOUT PREJUDICE, meaning that the defendant can in fact be re-arrested for the offense if further more conclusive evidence is discovered at a later time.  This is NOT a violation of the constitutional prohibition against Double Jeopardy (6th Amendment of the U.S. Constitution) because the defendant has not yet been placed in jeopardy of losing his freedom.  The only caveat to this rule is that the Court may find cause to delay the hearing under the Rules of Criminal Procedure (Alabama Title 15) by motion of either the defendant or prosecution.  While the defendant loses his right to a preliminary hearing after an indictment, and loses his absolute right to discovery at the District Court level, other rules of evidence, pre-trial motions, and the like, still preserve the defendant's discovery rights in Circuit Court.  

It is very unlikely that a preliminary hearing will lead to a case being dismissed because the prosecutor must only prove probable cause during the hearing.  Likewise, the State of Alabama may introduce hearsay and other evidence that would not be admissible at trial as well.  The Defendant's attorney will seldom present evidence during a preliminary hearing but use the hearing as a fact finding mission and to test the validity of the charges.  In Alabama, if your attorney does not file for a hearing, and does not demand the hearing within 21 days, there is a presumption that the hearing was postponed by leave of court and/or the parties.  So it is imperative that your criminal attorney discuss the preliminary hearing process with defendant's at an early stage of the process.  Amazingly enough, a judge could dismiss your case in District Court upon a preliminary hearing, and a criminal defendant could later be charged by a Grand Jury or even charged again for the same crime under the same facts.  As stated above, jeopardy does not attach or protect a felony defendant at the District Court level.

If the 30 day time limit has expired for requesting a preliminary hearing has come and gone, some jurisdictions, such as Jefferson County, will still grant the defendant a preliminary hearing, even if the defendant is no longer being held in jail.  This is far and away an extremely fair and just way of addressing the preliminary hearing issue and protecting the rights of a defendant.  However, not all jurisdictions will be as accommodating!

A Criminal Complaint is Not Enough to Hold a Defendant for a Crime

In Alabama, a criminal complaint or felony charge will not support the prosecution of a defendant charged with a crime.  The charging document in a felony criminal matter requires either a Preliminary Hearing, where the judge decides if there is enough probable cause to bind the case over to the Grand Jury, and/or a Grand Jury must return a true-bill for the crimes alleged.  

Here are the Rule for an Alabama Preliminary Hearing Below

Alabama Preliminary Hearing Rules

If you or a loved one have been charged with a crime in Alabama, please contact me, an experienced criminal defense lawyer immediately.  Your rights to a preliminary hearing can significantly be impacted by a delay in hiring an attorney.  I have represented clients in numerous criminal matters throughout the State of Alabama successfully for many years.  Call me today to protect your rights, livelihood and future.  If you call me, you'll get to speak with me, not a junior lawyer, paralegal or receptionist.  I will walk you through this troubling time personally, and we will struggle together.  


About the Author

Erik Fine

Attorney Erik D. Fine, A.A., B.S., J.D. Mr. Fine, an Alabama native, is a graduate of Mountain Brook Public Schools. He received an athletic scholarship to play baseball at Kansas City Kansas Community College from which he graduated with an Associates Degree in Law Enforcement in 1989. It was i...


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