What is a Preliminary Hearing in Maryland?

If you are reading this article, you or a loved one likely has a preliminary hearing set sometime in the near future.   The information below provides our perspective on Maryland state court preliminary hearings.  Although this article describes the preliminary hearing process for most cases, there are exceptions, and some cases may proceed differently.   It is intended to provide background information, and should not be relied upon for legal advice about a specific legal situation.   We highly recommend that you or the prospective client consult with legal counsel about your matter.

SYNOPSIS: An actual preliminary hearing is rarely ever conducted in Maryland state Courts and rarely is of meaningful benefit to a defendant.  However, very important decisions about a case are made by prosecutors at a preliminary hearing court date.  Therefore, it is often extremely valuable to have a defense attorney investigate a case and negotiate with prosecutors prior to the preliminary hearing court date.

A preliminary hearing in Maryland is a hearing to determine if probable cause exists to continue to hold a defendant in jail for a pending felony criminal case.  However, preliminary hearings are rarely ever conducted because rarely do they serve a useful purpose.  Therefore, in most cases a preliminary hearing court date is usually transformed into a “status hearing” whereby the parties advise the Court about the status of a criminal case.  Nevertheless, decisions made about the “status” of a case can have important implications for a defendant.  The procedures for preliminary hearing dates varies a bit for each county.  

To understand the function of a preliminary hearing date, it is useful to understand how criminal cases are charged in Maryland.   Most criminal cases are charged by a police officer or citizen filing an application for charges with a District Court commissioner.   A District Court commissioner can approve the issuance of charges for a wide range of offenses; from disturbing the peace, to first degree murder, and everything in between.   A commissioner can issue the requested charges if the commissioner believes that the application describes probable cause to support the charges.  Probable cause generally means that the police officer or citizen described facts in the written application that, if believed, make it more likely than not that the offenses actually occurred.   The commissioner does not need to review actual evidence or hear from witnesses although, sometimes the police officer or citizen submitting the application for charges will have witnessed some are all of the events described in the application. 

If the commissioner approves the charges, the commissioner will then decide how the defendant is notified of the charges.  For relatively non-serious allegations, a commissioner will often issue a summons that will be mailed to the defendant to notify the defendant that he or she must come to the courthouse by a certain date to be served with the charges.  Once served, a court date will be set to have a trial or otherwise resolve the case in the District Court.   No preliminary hearing date is set for these relatively minor cases because a trial date will soon be held, and hopefully, the case will be resolved in some manner on that trial date.

For more serious allegations (often felonies), the commissioner will issue a warrant for the defendant’s arrest.   If the defendant is already in police custody, the police will serve the defendant with the warrant that day.  Otherwise, the police will have to go out to find the defendant and serve him or her with the warrant.  Once served, the defendant will have a bond review, first in front of a commissioner.  If the defendant is not released by the commissioner, the defendant will have a bond review in front of a District Court judge on the following day that the courthouse is open for business.   At that bond review, a judge might release the defendant, or order that the defendant be held.  The judge will then set the next court date.   The nature of the charges will determine what type of hearing is set by the judge in the District Court.   

If the alleged charges are limited to misdemeanors (and a few select list of minor felonies, like felony theft) the judge will set a trial date for the defendant in the District Court.    For most felonies, however, the District Court does not have authority (or “jurisdiction”) to decide the outcome of the case.   This is because most felonies must be prosecuted only in the Circuit Court, where jury trials are held.  Therefore, the State prosecutors are usually given approximately 30 days after the arrest of the defendant to review the case and determine if the case should be transferred from the District Court to the Circuit Court by way of a new charging document called an “indictment” or “information.”  To give the prosecutors time to do that, the judge or commissioner will set a “preliminary hearing.”    This is a largely a safeguard to make sure citizens do not languish in jail while prosecutors take their time deciding what to do with a case.

When the preliminary hearing is convened, the defendant in the case might already be held at the local jail.  If so, the defendant will usually not be brought to the courthouse.   Instead, he or she will participate in the hearing remotely by video from the jail.   If the defendant is not detained, he or she must come to the courthouse to appear in person.    The purpose of an actual preliminary hearing is to allow a judge to determine if there is probable cause to continue to hold a defendant in jail for the case.  If the defendant is not being held in jail, there is no purpose in having a preliminary hearing.   If the defendant is being held, his or her attorney may elect to go forward with the hearing.  At a preliminary hearing, hearsay is admissible.   This means that one police officer or detective can testify about the entire case and all the evidence might later be presented at a trial.  Actual witnesses to the crime do not need to testify.  No physical evidence needs to be presented.  No videos need to be played.   Most preliminary hearings that are conducted involve nothing more than the police officer reciting the same application for charges that he or she filed with the commissioner to get the original warrant.  If the defendant and his attorney wish, they can present evidence as well.  If the judge believes there is probable cause to support the charges, the defendant will then continue to be held while the case continues to be investigated or reviewed.  Probable cause is a very low standardand judges will find that probable cause exists in most cases.   However, preliminary hearings can be useful in certain situations – especially when the defense attorney wants to point out that the facts alleged — even if true — do not constitute a crime.    For example, imagine  a divorced husband is charged by his ex-wife with kidnapping for picking up their son at school on a Friday that technically was not his day for visitation with his son.   A preliminary hearing may be useful to get a ruling from the judge that the event, although possibly a reason to file a contempt motion in the civil custody case,  cannot be a basis for a criminal kidnapping allegation. 

Winning a preliminary hearing does not result in a dismissal of the case.  Nor does it end the prosecution of the case.  It simply wins the release of the defendant.  This does not stop the State from later issuing an indictment for the same charge the following week in the Circuit Court – which would then result in the issuance of a new warrant, new arrest of the defendant, and new bond hearings.    Therefore, winning a preliminary hearing often only ends up getting the defendant arrested a second time.   Because of this, if a prosecutor is not ready to make a decision about a case on the first preliminary hearing date, defense attorneys will often agree to a postponement to give the prosecutor more time.  That is often a better alternative than exposing the client to the risk of a second arrest for the same event.

Nevertheless, the preliminary hearing court date is an important date, and we think it is very important to have experienced counsel representing the defendant in the days and weeks before the preliminary hearing date.   During the time between an arrest and the preliminary hearing date, the case will usually be assigned to a prosecutor for review or further investigation.   The prosecutor may choose to indict the case, which transfers the case to the Circuit Court where a lengthy prosecution process – often taking at least six months – will begin.   The issuance of an indictment often means that the prosecutor’s office intends to seek significant penalties and substantial incarceration for the defendant.  

The prosecutor can also choose to not issue an indictment.  The prosecutor could elect to dismiss all the charges at the preliminary hearing date.   This is obviously a very favorable resolution.  Or the prosecutor could elect to dismiss just the felonies, and allow the case to be resolved as misdemeanors at a future District Court date.   This is also a favorable resolution, and still leaves open the possibility that all the remaining charges can be favorably resolved on that future court date.  If the felonies are dismissed, judges at a preliminary hearing date are sometimes willing to review the defendant’s bond and release the defendant.   

During the time that the State is reviewing the case, and prior to the preliminary hearing, a defense attorney can advocate for the dismissal of some or all of the charges.   The defense attorney can bring favorable evidence to the attention of the prosecutor.   The defense attorney can also collect the State’s evidence from the prosecutor’s office, and review it with his or her client.   This may allow the defendant and defense attorney to find new and favorable evidence that explains why aspects of the original allegations are not true, or should not be believed. 

Even if there is strong evidence that the defendant is guilty of some or all of the alleged charges, the time before a preliminary hearing can be important time to negotiate a “pre-indictment plea agreement.”   Such an agreement can involve important compromises regarding the charges, potential incarceration, and conditions of probation. 

David Martella and Raquel Smith attend preliminary hearing court dates almost every week in many counties across Maryland.   If you or someone you know has a case that is being charged and investigated feel free to call our office at 301-251-9001.