Preliminary Hearings

The purpose of a preliminary hearing is for a magistrate court judge to determine whether there is sufficient probable cause to support the warrant against the defendant. The State has the burden of proving that there was, in fact, probable cause for the arrest of the defendant. Typically, evidence is presented through a witness (usually the arresting officer or case detective) regarding the facts that led to the defendant’s arrest. The defense attorney then cross-examines that witness regarding matters relevant to this issue of probable cause. If the judge concludes that there is sufficient probable cause to sustain the warrant, he then transfers jurisdiction of the case to superior court (or state court on misdemeanors) by ‘binding’ it over. If the court rules that there is not sufficient probable cause then he/she will dismiss the warrant and the defendant will be released unless there are other charges holding him. In more conservative/rural counties around Atlanta, charges rarely get dismissed even when the evidence seems razor thin. In other counties, such as DeKalb and Fulton, the magistrate court judges routinely dismiss weak cases and bind over ones that stand a chance of succeeding later at trial.

Judges Gavel


After the issue of probable cause has been determined, defense counsel will typically request bond assuming the charge is one that doesn’t require bond to be set only by a superior court judge (charges like murder, rape, armed robbery and aggravated child molestation among others). Often times, prior to the hearing prosecutors will consent to a bond in a case but only in exchange for the defendant agreeing to waive his right to the hearing. The defendant essentially agrees that there is sufficient probable cause for the charge and the matter is, by agreement, bound over to superior court. The primary benefit of the hearing for the defense is that it presents the first opportunity to hear the state’s evidence and allows the defense counsel to question the state’s main witness and pin down certain answers that could be useful later in the case like at a motion to suppress or at trial. Of course, most defendants would prefer to have the opportunity to get out of jail rather than hear the evidence if they have a choice and so many of them agree to waive the hearing in exchange for the bond.


It’s important to have an attorney present to help during a preliminary hearing. I have handled scores of preliminary hearings in my career both as a prosecutor and as defense counsel. If you or a loved one have been arrested and are facing a preliminary hearing in the near future, please feel free to give me a call today for a free and confidential consultation. 404-474-2531.

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