A preliminary hearing, also called a "prelim," determines whether there is probable cause to keep a defendant incarcerated. These hearings are designed to prevent someone from being held indefinitely on false charges.
A preliminary hearing is generally scheduled within thirty days of a person's arrest. In Houston County, preliminary hearings occur every other Tuesday, opposite the Tuesdays that the grand jury convenes. A magistrate judge presides over preliminary hearings. Generally, the person testifying on behalf of the State is either the responding officer or the investigator on the case. The State presents its case by having the officer testify as to what happened. Preliminary hearings are less formal than trials in that certain evidentiary rules are relaxed, for instance, some types of hearsay are allowed. After the State presents its case, the defense has an opportunity to cross-examine the officer and present witnesses of their own. Generally, the defense will subpoena the victim or the witnesses to the crime. The judge then determines whether there is probable cause to bind the case over. There are three things the court may do: bind the case over as charged, bind some of the charges over, or dismiss the case. At times, the court will find there is probable cause for certain misdemeanors but not for the felonies as charged. In this instance, the case is bound over to State Court instead of Superior Court. State Court cases are prosecuted by the Solicitor-General of Houston County and his staff.
Burden of Proof
The burden of proof in a preliminary hearing is "probable cause." This standard is distinct from "preponderance of evidence" and "beyond a reasonable doubt." It is the same standard used by a grand jury. In laymen's terms, the definition of probable cause is a reasonable belief that the person committed the crime.
Bill of Accusation
In Georgia, certain types of cases do not require a grand jury to return an indictment. Instead, they may be "accused." The prosecutor prepares a Bill of Accusation and swears to its accuracy before a Superior Court judge. However, before a case may be accused, it must have been bound over after a preliminary hearing or the defendant must have been released on bond.
Generally, most theft crimes and most drug crimes may be prosecuted through a Bill of Accusation.
Preliminary hearings are scheduled at the behest of the Public Defender's Office. Defendants with private counsel may also request a preliminary hearing but in those limited cases, the hearing is scheduled separate from the regular preliminary hearing calendar that occurs every other Tuesday.