Probable Cause Hearing: What to Expect and How to Prepare

You got arrested. Now you have a court date called a "probable cause hearing" or "preliminary hearing." You need to know what happens there and why it matters to your case.

Here's the reality: This hearing is your first chance to see the prosecution's evidence and possibly get your case dismissed before it reaches trial. About 23% of felony cases are dismissed at or before the preliminary hearing stage, according to Bureau of Justice Statistics data.

Sued for a Debt?

Don't let them win by default. Respond to your lawsuit today.

File Your Answer Now

What Is a Probable Cause Hearing?

A probable cause hearing is a court proceeding where prosecutors must prove they have enough evidence to charge you with a crime. It's a lower standard than "beyond a reasonable doubt," but prosecutors still need to convince the judge that:

A crime probably happened
You probably committed it

Think of it as a screening test. If the prosecution can't meet this basic threshold, your case gets dismissed. If they clear the bar, your case moves forward to trial.

The legal standard is "more likely than not." Prosecutors need to show it's 51% likely you committed the crime, not that they can prove it beyond all reasonable doubt.

When Do You Get a Probable Cause Hearing?

The timing depends on whether you're in custody and what state you're in.

If you're in jail: Most states require the hearing within 10 to 30 days of your arraignment. California gives prosecutors 10 court days. Texas allows up to 20 days. The faster timeline protects your constitutional right against unlawful detention.

If you're out on bail: The hearing typically happens within 60 to 90 days of arraignment. Courts have more flexibility when you're not locked up.

You generally get this hearing if you're charged with a felony. Misdemeanor cases rarely trigger preliminary hearings because the stakes are lower and the process moves faster.

You Can Waive This Hearing

Your attorney might recommend skipping the probable cause hearing. Why would you do that?

You're negotiating a plea deal
The evidence against you is strong, and you don't want to give prosecutors a practice run
You want to avoid having witnesses testify early (preserving testimony for trial)

About 60% of defendants waive their preliminary hearing, often as part of plea negotiations.

What Happens During the Hearing

The hearing is like a mini-trial, but simpler. Here's the typical sequence:

The Prosecution Presents Evidence

Prosecutors call witnesses to testify. They might bring police officers, victims, or other witnesses who saw what happened. They can also introduce physical evidence like photos, weapons, or documents.

The burden is on the prosecution. Your defense team doesn't have to present anything at this stage.

Your Attorney Cross-Examines Witnesses

Your lawyer gets to question every witness the prosecution calls. This is valuable for two reasons:

It might reveal weaknesses in the prosecution's case
It locks witnesses into their stories under oath (helpful if they change their testimony later)

Your attorney can also challenge the admissibility of physical evidence. If evidence was obtained illegally, now is the time to fight it.

The Defense Can Present Evidence (But Usually Doesn't)

You have the right to call witnesses and present evidence at a probable cause hearing. Most defense attorneys don't exercise this right. Here's why:

Showing your defense strategy early gives prosecutors time to counter it. You also risk creating a record of witness testimony that might contradict what they say at trial. The smart move is usually to stay quiet and watch the prosecution's case.

The Judge Decides

After hearing the evidence, the judge makes one of three decisions:

Bind the case over for trial: The judge finds probable cause. Your case proceeds to trial.
Dismiss the case: The judge finds insufficient evidence. You're free (unless prosecutors refile with better evidence).
Reduce the charges: The judge finds probable cause for a lesser offense. For example, felony assault might get reduced to misdemeanor assault.

The vast majority of probable cause hearings result in cases being bound over for trial. Judges set a low bar at this stage.

What the Prosecution Must Prove

The prosecution focuses on two core questions:

1. Was a Crime Committed in This Jurisdiction?

The prosecutor must show a crime occurred and that this court has the authority to hear the case. If you're accused of robbery in Cook County, Illinois, the state needs to prove the robbery happened in Cook County.

Jurisdiction matters. If the crime happened elsewhere, the case gets dismissed or transferred.

2. Did You Commit the Crime?

The prosecutor needs to connect you to the alleged crime. This might come from:

Eyewitness identification
Physical evidence (fingerprints, DNA, possessions)
Video or photos
Your own statements to police

The link doesn't have to be ironclad. Prosecutors only need to show it's more likely than not that you did it.

Other Issues Discussed at the Hearing

Probable cause isn't the only item on the agenda. Judges often address:

Bail adjustments: If new evidence makes you seem more or less dangerous, bail might change.
Additional charges: Prosecutors might add charges if new evidence surfaces.
Plea negotiations: This is often when plea deals get discussed seriously.

The hearing gives both sides a clearer picture of the case's strength. That clarity often drives settlement.

After the Probable Cause Hearing

If your case wasn't dismissed, you move to the next stage: pretrial motions and eventually trial. Your attorney can file motions to suppress evidence, dismiss charges on legal grounds, or negotiate a plea deal.

If the judge dismissed your case, you're not necessarily in the clear. Prosecutors can sometimes refile charges if they gather more evidence. The statute of limitations clock is still running.

Can You Appeal the Judge's Decision?

You generally can't appeal a judge's decision to bind your case over for trial. The probable cause determination isn't considered a final judgment. You can challenge it later through pretrial motions or at trial.

If the judge dismissed your case, prosecutors can appeal that decision in some states, though they rarely do.

How to Prepare for Your Hearing

If you have a probable cause hearing coming up, take these steps:

Hire an Attorney Immediately

Public defenders handle probable cause hearings competently, but they're overloaded. If you can afford private counsel, this is the time. A sharp attorney can spot weaknesses in the prosecution's case early and possibly get charges reduced or dismissed.

If you're facing financial issues that make hiring an attorney difficult, you might be eligible for bankruptcy protection or debt relief. Learn more about filing for bankruptcy if overwhelming debt is part of your situation.

Gather Any Evidence That Helps Your Case

Even if your attorney won't present evidence at the hearing, you should collect anything that might help:

Alibi witnesses
Photos or videos
Receipts or documents showing you were elsewhere
Text messages or emails

Give everything to your attorney. Let them decide what to use and when.

Don't Talk to Anyone About Your Case

Anything you say can be used against you. Don't discuss your case with friends, family, cellmates, or anyone except your attorney. Prosecutors subpoena people. Jailhouse informants are real.

Show Up and Dress Appropriately

Judges notice everything. Arrive early, dress like you're going to a job interview, and be respectful. Turn off your phone. Don't chew gum. Small things matter.

Common Mistakes Defendants Make

Avoid these errors that weaken your position:

Talking to police without a lawyer: You have the right to remain silent. Use it.
Assuming the case will be dismissed: It rarely is. Prepare for the case to continue.
Ignoring court dates: Missing a probable cause hearing results in a bench warrant for your arrest.
Posting about your case on social media: Prosecutors check Facebook, Instagram, and Twitter. Delete nothing; just stop posting.

What If You Can't Afford Legal Help?

If you're facing criminal charges and can't afford an attorney, you're entitled to a public defender. Request one at your arraignment. Public defenders are experienced attorneys who handle hundreds of cases like yours.

If financial stress is overwhelming and you're dealing with debt alongside criminal charges, explore whether bankruptcy might give you breathing room. Our bankruptcy screener takes two minutes and shows you whether filing makes sense for your situation.

The Bottom Line

A probable cause hearing is your first opportunity to force the prosecution to prove their case. It's a low bar, but it's not automatic. About one in four felony cases don't make it past this stage. Get an attorney, stay quiet, and take the process seriously.

If you're dealing with debt or financial issues that complicate your legal situation, you have options. Talk About Debt helps people navigate bankruptcy, debt relief, and financial recovery. Start by understanding your rights and your options.

Frequently Asked Questions

Can I represent myself at a probable cause hearing?

You have the right to represent yourself, but it's a terrible idea. Prosecutors are trained attorneys who know the rules of evidence and procedure. Even if you're innocent, you can harm your case by not knowing what objections to make or how to cross-examine witnesses effectively.

What happens if the judge finds no probable cause?

Your case gets dismissed and you're released if you're in custody. However, prosecutors can sometimes refile charges if they gather more evidence, depending on your state's laws and the statute of limitations.

Do I have to testify at my probable cause hearing?

No. You have the Fifth Amendment right against self-incrimination. Most defense attorneys strongly advise against testifying at this stage because it gives prosecutors free discovery and locks you into a story before you've seen their full case.

How long does a probable cause hearing take?

Most hearings last 30 minutes to two hours, depending on how many witnesses the prosecution calls and how complex the evidence is. Simple cases with one or two witnesses might wrap up in 20 minutes.

What's the difference between a probable cause hearing and an arraignment?

An arraignment is when you're formally charged and enter a plea. A probable cause hearing happens later and determines whether there's enough evidence to proceed to trial. The arraignment takes minutes; the probable cause hearing involves witness testimony and evidence.

Probable Cause Hearing: What Happens and How to Prepare