What is a Preliminary Hearing? The differences between associate court division and circuit court divisions, grand juries, and the bindover process.

In Missouri, there are two types of trial courts in each county.  These divisions are called Associate Circuit Court (or just “associate court”) and Circuit Court.  Associate divisions are presided over by an Associate Judge, and circuit divisions are presided over by a Circuit Judge, although sometimes, especially in smaller counties, Associate Judges will sit as Circuit Judges by special rule.

For criminal cases, with the exception of cases that are filed as indictments, all criminal cases start in associate court.  Misdemeanor cases generally stay in associate court, and are resolved in circuit court. However, felony cases cannot be resolved in associate court.  This means that trials in felony cases and guilty pleas entered in felony cases can only take place in circuit court.

There are three ways for a case to be moved, or “bound over”, from associate court to circuit court:

First, a case can be bound over to circuit court after a preliminary hearing if the court (judge) finds that there is probable cause that a felony has been committed by the defendant. Felony cases are required to be set for a Preliminary Hearing within 30 days if the defendant is in custody, and 90 days if the defendant is not in custody.  At a preliminary hearing, the State will call a witness or witnesses, and may present other evidence, as well.  The defense does not typically call witnesses or present evidence in a preliminary hearing, although they are allowed to.

In a preliminary hearing, the state is free to present evidence without consideration of the rules of evidence, including hearsay.  This means that evidence that would not be admissible at trial are allowed to be presented to the court at preliminary hearing.  For example, a police officer can take the stand and testify as to what witnesses said to him, or other officers, and what other officers observed, where in a trial, these things are not allowed (with some exceptions).

In a preliminary hearing, the burden of proof is “probable cause”, in contrast to the burden of proof at trial, which is “beyond a reasonable doubt.”  Probable cause is a much lower standard than beyond a reasonable doubt.  This lesser burden of proof, along with the freedom of the state to put otherwise inadmissible evidence in front of the court, results in a high bindover rate for felony cases. 

If the judge determines that the state has not established probable cause that a felony has been committed by the defendant, then the judge will dismiss the case.  For some, this is the end of their case – the dismissal of the charge(s).  But not for all.  After a case is dismissed by a judge for a finding of no probable cause, the state is able to re-file charges – either the same or different ones, arising from the same set of facts – and seek a new preliminary hearing, or take the case through the grand jury process.  If you think that this is unfair or unjust, then you are paying attention.

The second way a case can be bound over from associate to circuit court is by a Waiver of Preliminary Hearing.  Lawyers advise their clients to waive preliminary hearing for different reasons.  Considering the high bindover rate, it may simply be a waste of time to conduct a preliminary hearing.  The most common reason to waive preliminary hearing, though, has to do with plea negotiations.  Many prosecutors do not want to unnecessarily expose their witnesses to cross examination, spend the time in court conducting a preliminary hearing, or inconvenience police officers or other witnesses by having them in the courtroom for a preliminary hearing.  To prevent preliminary hearings from taking place, prosecutors will threaten to revoke plea offers or refuse to negotiate if the preliminary hearing is not waived by the defense.  While none of these may seem like good reasons to not have a preliminary hearing in a system designed to administer justice, the fact is that most criminal cases are resolved through plea negotiations, and keeping open the possibility for a favorable plea bargain can be very important.  The decision to waive or not waive a preliminary hearing is often the first significant decision that needs to be made in a criminal case, and the advice of an experienced criminal defense attorney, utilizing their experience, research, and expertise, is critical at this important stage.

Sometimes, the defense isn’t offered an opportunity to make this choice, though.  The third way that a felony case is bound over to circuit court is by grand jury indictment.  On a regular basis, a county with a sitting grand jury will, behind closed doors, and “secretly”, put some kind of evidence in front of a grand jury, who makes the probable cause determination and certifies a “True Bill.”  Only nine of the 12 grand jurors need to agree to certify a true bill.  When this is done, the case is transferred to circuit court without a preliminary hearing, and notably, without the defense having the opportunity to be heard, to cross examine witnesses, to challenge evidence, or to tell the defendant’s side of the story. 

While the associate court plays a critical gatekeeper role in only binding over cases that can be supported by evidence, are actually a violation of the law, or have witnesses who can be located and will testify in the case, strategic planning as to whether or not and when to have a preliminary hearing can be complicated, and that decision is frequently thwarted by a grand jury indictment. 

At Faber Law Firm, we have handled thousands of criminal cases, and will put that experience to work for you in approaching the preliminary hearing process tactfully and appropriately, ensuring that you have the highest possible chance of obtaining the best possible outcome for your case.