What Is a Preliminary Hearing in CA? | Law Office of Brendan Barrett

What Is a Preliminary Hearing in California?

If you are charged with a felony in California, one of the major events in the case is the preliminary hearing (aka “The Prelim”). This hearing is not the trial. No jury decides guilt or innocence there. Instead, a live-testimony hearing is held and the judge decides whether the prosecution has shown enough evidence to keep the case moving forward and justify a jury trial.

A preliminary hearing can matter a great deal. It can expose weaknesses in the case, lock witnesses into testimony, narrow issues, support later motions, and sometimes result in charges being dismissed or reduced. It can also be a tactical trap if the defense gives away too much too early.

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The Purpose of a Preliminary Hearing

The basic purpose of the hearing is simple: the court decides whether there is probable cause to believe a felony was committed and that the defendant committed it.

Under Penal Code section 866(b), the hearing exists to determine whether there is probable cause, and it is not supposed to be used as a discovery device. If the magistrate finds sufficient cause, the defendant is “held to answer” under Penal Code section 872(a). If the showing is insufficient, the complaint should be dismissed under Penal Code section 871.

So the real question at a preliminary hearing is not whether the prosecution has proved the case beyond a reasonable doubt (that is the issue for the jury, if the case gets to that point). The question is whether the prosecution has shown enough to justify sending the case forward.

The Main Code Sections That Govern the Hearing

Several Penal Code sections control how preliminary hearings work in California:

Penal Code section 859b

timing and speedy preliminary hearing rules.

Penal Code section 865

the defendant must be present at the examination unless lawfully excused.

Penal Code section 866

order of proof and the defense right to present evidence, with limits.

Penal Code section 871

dismissal when there is not sufficient cause.

Penal Code section 872

holding order when sufficient cause exists.

Penal Code section 872(b)

allows certain qualified law enforcement hearsay at the preliminary hearing.

Penal Code section 872.5

relaxed proof rules concerning writings at the hearing.

Penal Code section 1538.5

suppression motions may sometimes be litigated at the preliminary hearing.

Penal Code section 995

after a defendant is held to answer, the defense can ask the superior court to set aside the information if the commitment was unlawful or unsupported.

Those statutes work together. The preliminary hearing is the event itself. The 995 motion is often the next major defense attack if the client is held to answer.

What are the time limits?

A defendant can elect to proceed to a preliminary hearing on (a) time-waived basis or (b) time-not-waived basis.

Time waived means that the defendant agrees to set the case for hearing at the court’s convenience. This can mean weeks or months out for the hearing. Sometimes this is in the clients best interest or is more convenient for the defense to get prepared.

Often times the best tactic is to proceed “time-not-waived”. This means that the defendant is exercising their speedy-prelim rights. A defendant can demand a prelim within 10 days, or within 60 days.

The 10-Day Speedy Preliminary Hearing Rule

The 10-day rule governs how quickly a felony defendant is entitled to a preliminary hearing.

Under Penal Code section 859b:

A defendant in custody has the right to a preliminary hearing within 10 court days of arraignment (or plea, if later).
“Court days” means business days—weekends and holidays do not count.

What Happens If the Deadline Is Not Met?

If the prosecution is not ready within that 10-day window:

The court must either:

dismiss the complaint, or
release the defendant from custody (depending on the circumstances).

In practice, this becomes a powerful pressure point. If the prosecution is not ready—missing witnesses, incomplete investigation, unavailable officers—the defense can force a decision: proceed now or risk dismissal/release.

Waiving the 10-Day Rule

Many felony cases involve a time waiver. When the defense “waives time”:

- The preliminary hearing is set beyond the 10-day window,

- Usually to allow for:

more discovery,
negotiation,
investigation,
or strategic preparation.

This is not necessarily a giveaway—it is a strategic choice. Sometimes you want the hearing immediately. Sometimes you want time to build the defense before locking in testimony. Context and strategy come into play when making this decision.

The 60-Day Speedy Preliminary Hearing Rule

The 60-day rule is completely different.

Under Penal Code section 1382 a felony defendant must be brought to prelim within 60 days of entry of plea of not guilty (if they have asserted the right to speedy prelim). If the Court or Prosecutor fails to meet that deadline the Court must dismiss the case.

What Happens at the Hearing?

In most cases, the prosecutor presents witnesses first. Often that includes an investigating officer, and because of Proposition 115 and section 872(b), the prosecutor may rely in part on hearsay through a qualified officer rather than calling every civilian witness in person. (This would not be allowed at a jury trial).

After the prosecution rests, the defense may:

cross-examine prosecution witnesses,
move to dismiss for lack of sufficient cause,
argue that certain counts or enhancements are unsupported,
sometimes ask that a wobbler be reduced,
and in some cases present defense evidence.

At the end, the magistrate (judge) decides whether the defendant is held to answer on some or all charges.

What Is the Burden of Proof?

The prosecution’s burden at a preliminary hearing is low.

The standard is called “probable cause”. The prosecutor only has to show enough evidence to create a strong suspicion that (1) a crime was committed and (2) that the defendant committed the crime.

That matters because many clients hear “we have a good defense” and assume the case should be dismissed at prelim. Sometimes it should. But many weak or disputed cases still get held to answer because the standard is much lower than the trial standard.

A preliminary hearing judge is not deciding whether the defense will ultimately win at trial. The judge is deciding whether the prosecution has barely cleared the threshold to continue.

Why the Hearing Still Matters If the Burden Is So Low

Even with a low standard, the hearing is often the first real chance to test the case under oath. A good preliminary hearing can do several things for the defense:

1. Lock Witnesses Into Testimony

If a witness gives a version of events at the preliminary hearing and later changes it at trial, the prior testimony can become a major impeachment tool. That is often the most valuable goal of the hearing.

2. Expose Gaps in Proof

Sometimes a charge looks stronger on paper than it does in live testimony. A missing identification, shaky timeline, weak ownership proof, poor chain of custody, or vague intent evidence can all matter when the two sides are staring each other down before the jury trial.

3. Challenge Enhancements and Special Allegations

Even if the core count survives, an enhancement may not. The defense can argue that the prosecution has not shown enough for great bodily injury allegations, strike allegations, bail enhancements, or other add-ons.

4. Set Up Later Motions

A preliminary hearing record can become the foundation for a later Penal Code section 995 motion, suppression litigation, or trial impeachment.

5. Pressure Better Negotiation

Once the testimony is on the record, the prosecutor may become more realistic about weaknesses in the case.

Defense Strategies at a Preliminary Hearing

There is no one-size-fits-all strategy; this is a very tactical and nuanced stage of the defense case and tactics are context-driven. The right approach depends on the charge, the witness issues, whether the client may testify later, whether there is a suppression issue, and whether the defense theory is already developed.

Common defense strategies include the following.

Cross-Examination Without Showing Your Whole Hand

In many felony cases, the defense goal is to do controlled damage:

test the witness,
expose contradictions,
pin down facts (aka “marry the witness to their statement”)
avoid unnecessary disclosure of trial strategy,
and preserve arguments for a 995 motion or trial.

That often means asking pointed questions but not overtrying the case. Sometimes less is more.

Attacking an Element of the Offense

A preliminary hearing can be the right place to argue that an essential element is missing. For example:

identity is weak,
intent is speculative,
force or fear is not shown,
possession is not established,
the alleged victim’s testimony does not match the charged theory,
or the enhancement facts are missing.

If an element is not supported even under the lenient prelim standard, the magistrate should not hold the defendant to answer on that charge.

Challenging Hearsay Use Under Section 872(b)

The prosecution often tries to streamline prelims by using qualified officers to relay out-of-court statements. That can make the hearing more efficient for the state, but it also creates defense complications and opportunities.

The defense can challenge:

whether the officer is properly qualified under section 872(b),
whether the hearsay goes beyond what the statute allows,
whether there is multiple hearsay,
whether the testimony actually establishes each required element,
and whether the prosecution is using this hearsay in order to hide the problems they have with their witness’ testimony.

In some cases, forcing the prosecution into a cleaner record can matter.

Litigating a Search and Seizure Issue

In some felony cases, the defense may bring a suppression motion under Penal Code section 1538.5 at the preliminary hearing. That can be a strong move where the case depends heavily on seized evidence.

But it has to be evaluated carefully. Filing early may help. It may also reveal the defense theory sooner than necessary.

Seeking Dismissal or Reduction

At the end of the prosecution’s case, the defense can argue there is no sufficient cause under Penal Code section 871. In the right case, defense counsel may also ask the magistrate to reduce a wobbler where the facts justify that result.

That is not cosmetic. A felony-to-misdemeanor reduction can change exposure, custody consequences, immigration implications, and settlement posture.

Should the Defense Present Evidence at the Preliminary Hearing?

This is one of the most important tactical decisions in felony practice.

Under Penal Code section 866(a), the defense may present witnesses after the prosecution rests. But the magistrate can require an offer of proof, and the defense witness will generally not be permitted unless the proposed testimony would be reasonably likely to do one of three things:

establish an affirmative defense,
negate an element of the charged crime,
or impeach a prosecution witness or declarant.

Why the Defense Often Chooses Not to Present Evidence

In many cases, the smarter move is to refrain from putting on defense evidence. The reasons are practical:

it may preview the defense theory too early,
it may lock the defense witness into testimony before trial preparation is complete,
it may give the prosecutor time to repair a weak case,
it may expose impeachment material that is best kept in our pocket,
and it may help the state more than the defense if the hearing standard is so low that the case will likely be certified for trial anyway.

This is especially true where the defense has a viable trial theory but does not need to reveal it yet. The defense has no obligation to reveal their defense evidence or jury trial strategy at the prelim. Doing so is often foolish and wasteful–this all depends on the context of the case.

Why the Defense Sometimes Should Present Evidence

There are cases where presenting evidence at prelim is absolutely the right call. That may happen when:

a clean alibi witness can destroy identity,
a civilian witness can negate a required element,
a defense witness can directly contradict a key prosecution statement,
the case is built on a misunderstanding that can be corrected immediately,
or the defense can realistically win a dismissal or major narrowing of charges right there.

In those cases, holding back just for the sake of secrecy can be a mistake.

The Real Tactical Question

The real question is not “Can the defense call a witness?” The question is whether putting on this evidence will help enough at the preliminary hearing to justify revealing it now? That is a strategic decision, not a mechanical one–experienced defense lawyers make that call case by case and remain flexible until the decision time is at hand.

What Happens If the Defendant Is Held to Answer?

If the magistrate finds sufficient cause, the defendant is held to answer under Penal Code section 872, and the prosecution then files an information in superior court. The defendant then appears at a second “arraignment” and the case is scheduled for jury trial.

From there, the defense may file a Penal Code section 995 motion asking the superior court to set aside the information. A 995 motion can challenge whether the defendant was legally committed, whether a count lacked probable cause, or whether a substantial right was violated at the preliminary hearing.

That is one reason the preliminary hearing record matters so much. What happens there does not stay there.

What Happens If the Prosecution Fails?

If the magistrate finds that no public offense was shown, or that there is not sufficient cause to believe the defendant committed it, the complaint should be dismissed under Penal Code section 871.

That does not always mean the case is dead forever. In some situations the prosecution may refile, depending on the reason for the dismissal and the procedural posture. But a prelim dismissal is still be a significant defense win.

Why Early Defense Work Matters Before the Preliminary Hearing

By the time the preliminary hearing date arrives, many of the most important strategic decisions should already have been made:

whether to waive time,
whether to subpoena witnesses,
whether to litigate suppression,
whether to preserve testimony,
whether to reveal a defense witness,
whether to push for reduction,
and whether the hearing should be used mainly as attack, discovery-by-cross, or leverage for settlement.

A preliminary hearing is not just another setting on the calendar. In the right case, it is the first real test of the prosecution’s theory.

Next Step

If you or a family member is facing a felony case–an early defense strategy around the preliminary hearing can make a real difference. If you’d like to have me discuss the case, contact me below to arrange a meeting.

To get started, you can send your information here:

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Featured Content

The Lifecycle of a Criminal Case

Criminal Defense Overview

A California criminal case does not move in one straight line. Cases begin with an investigation or arrest, but many never reach trial. Some are rejected before filing. Some resolve at arraignment. Some felony cases are narrowed or dismissed at the preliminary hearing. Others proceed all the way through jury trial.

Still, there is a classic path. If you understand that path, it becomes much easier to understand what is happening in your own case and why timing, charging decisions, and defense strategy matter so much for the fate of a case.

This page is my attempt to illustrate the usual lifecycle of a California criminal case from arrest through jury trial and to highlight the major differences between misdemeanor and felony procedure.

What Is an Arraignment in California?

An arraignment is the first formal court appearance after criminal charges are filed. It is the stage where:

Charges are formally read or acknowledged
The defendant enters a plea (usually “not guilty”; this is not necessarily done in every case)
Bail is addressed
Protective orders may be issued
Future court dates are set

Preliminary Hearing in California

A preliminary hearing (often called a “prelim”) is a court proceeding in felony cases where a judge determines whether there is enough evidence to require the defendant to stand trial.

It is not a trial. It is a screening mechanism to weed out baseless charges or narrow the scope of a future jury trial.

What Is a Jury Trial in California?

A jury trial is the stage of a criminal case where the prosecution must finally prove its case beyond a reasonable doubt to a group of citizens. It is the highest burden in the legal system—and the one that actually decides guilt or innocence.

Everything that comes before it—arrest, charging, arraignment, pretrial motions, and even the preliminary hearing—is about whether the case can proceed to this stage. The jury trial is where the case is won or lost.

If you are facing criminal charges in California, understanding how a jury trial actually works—and how it is different from everything leading up to it is critical.