If you’ve been charged with a felony in West Virginia, one of the first significant decisions you’ll face is whether to proceed with a preliminary hearing or waive it. Many people assume the answer is obvious. It isn’t.
The decision can affect your defense strategy, your bond, the information you obtain about the State’s case, and even the timing of your prosecution. There is no universal answer. What is best for one defendant may not be best for another.
As a West Virginia criminal defense attorney, I discuss this decision with every felony client before recommending a course of action.
What Is a Preliminary Hearing?
In West Virginia, a preliminary hearing is typically held before a magistrate after a person has been charged with a felony. The purpose of the hearing is not to determine whether the defendant is guilty or innocent.
Instead, the magistrate decides whether there is probable cause to believe that:
- A felony was committed; and
- The defendant committed that felony.
This is a much lower standard than proof beyond a reasonable doubt, which is required for a criminal conviction at trial.
If the magistrate finds probable cause, the case proceeds to the circuit court. If probable cause is not established, the complaint may be dismissed, although the prosecution may still pursue the matter through other lawful procedures.
What Happens During the Hearing?
At the preliminary hearing, the prosecutor presents evidence supporting the criminal charge. This often includes testimony from investigating officers, alleged victims, or other witnesses.
The defense has the opportunity to:
- Cross-examine the State’s witnesses;
- Challenge weaknesses in the State’s evidence;
- Preserve witness testimony for future use;
- Begin evaluating the strengths and weaknesses of the prosecution’s case.
Although the hearing is limited in scope, it can provide valuable information early in the case.
Why Would Someone Want a Preliminary Hearing?
There are several strategic advantages.
Learn More About the State’s Case
A preliminary hearing often provides one of the earliest opportunities to hear witnesses testify under oath. Although prosecutors generally present only enough evidence to establish probable cause, the hearing can still reveal important details about the allegations.
Cross-Examine Witnesses
Defense counsel may question the State’s witnesses. Their testimony becomes part of the record and may later prove useful if their version of events changes.
Evaluate the Strength of the Evidence
Sometimes a hearing confirms that the State has a strong case. Other times, it exposes inconsistencies, missing evidence, or credibility concerns that may become important later in the litigation.
Why Would Someone Waive a Preliminary Hearing?
Despite these advantages, there are situations where waiving the hearing may better serve a client’s interests.
For example, prosecutors may agree to:
- Recommend a reduction in bond;
- Provide discovery earlier than required;
- Resolve scheduling issues; or
- Reach other agreements that benefit the client.
In other cases, counsel may determine that conducting the hearing would provide little strategic benefit.
Every case requires an individualized analysis.
There Is No One-Size-Fits-All Answer
People often ask me whether they should always request a preliminary hearing.
My answer is simple:
Usually—but not always.
My default position is often to proceed with the hearing because it gives the defense an opportunity to gather information and evaluate the State’s evidence.
However, I never recommend a hearing simply because it is available. Every decision should advance the client’s overall defense strategy. If waiving the hearing better serves the client’s interests, then that may be the appropriate course of action.
Talk With an Experienced West Virginia Criminal Defense Attorney
If you have been charged with a felony in West Virginia, you should understand the advantages and disadvantages of both options before making a decision.
At Sayre Law Services, PLLC, I represent individuals charged with felony offenses throughout Wood, Calhoun, Doddridge, Gilmer, Harrison, Jackson, Kanawha, Lewis, Marion, Mason, Pleasants, Putnam, Ritchie, Roane, Taylor, Tyler, Wetzel, and Wirt Counties, and I accept serious felony cases throughout West Virginia.
Every case is different. Before deciding whether to proceed with or waive a preliminary hearing, it is important to understand how that decision fits into your overall defense strategy.
If you or someone you care about has been charged with a felony, contact Sayre Law Services, PLLC to discuss your case.