What Is a Preliminary Hearing in Virginia?

A preliminary hearing is an important stage in a Virginia felony criminal case. It is a hearing where a judge determines whether the Commonwealth has presented sufficient evidence to establish probable cause to believe that the accused committed the charged offense.

Unlike a criminal trial, a preliminary hearing is not a determination of guilt or innocence. The question is whether there is sufficient evidence for the felony charge to proceed.

Virginia law specifically protects the right to a preliminary hearing for a person arrested on a felony charge. Under Virginia Code § 19.2-218, a person arrested on a felony charge generally cannot be denied a preliminary hearing concerning whether there is “reasonable ground” to believe that the person committed the offense. The statute also provides that an indictment generally cannot be returned before the preliminary hearing unless the accused waives the hearing in writing.

For anyone facing a felony charge in Virginia, understanding how a preliminary hearing works—and how it can affect the rest of the case—is extremely important.

What Is the Purpose of a Preliminary Hearing?

The primary purpose of a Virginia preliminary hearing is to determine whether there is sufficient evidence to continue prosecuting the accused for the felony.

The Virginia Judicial System defines a preliminary hearing as a hearing used to determine whether there is evidence sufficient to warrant binding the accused over to the circuit court for further proceedings.

The judge is not deciding whether the defendant is guilty beyond a reasonable doubt. Instead, the Commonwealth must establish the required level of probable cause.

If the judge finds sufficient cause, the felony charge can proceed toward the circuit court. If the judge finds insufficient cause, Virginia Code § 19.2-186 provides that the accused shall be discharged when the judge determines there is not sufficient cause for charging the accused with the offense.

Is a Preliminary Hearing Required in Every Virginia Criminal Case?

No.

The statutory right to a preliminary hearing under Virginia Code § 19.2-218 applies to a person who has been arrested on a felony charge.

Misdemeanor cases generally do not involve a preliminary hearing in the same manner as felony prosecutions.

Importantly, a defendant may waive the preliminary hearing. Under § 19.2-218, the waiver must be in writing before an indictment can ordinarily be returned in a court of record.

Whether a defendant should waive a preliminary hearing is a case-specific strategic decision. There is no universal rule that a defendant should always have the hearing or always waive it.

What Happens at a Preliminary Hearing?

Virginia Code § 19.2-183 establishes important procedures governing preliminary hearings.

The statute requires the judge to examine witnesses under oath and requires the accused to be present. Before conducting the hearing or accepting a waiver, the judge must advise the accused of the right to counsel. If the accused is indigent and the offense is punishable by confinement in jail or the state correctional facility, the court is required to appoint counsel as provided by law.

In a felony preliminary hearing, the Commonwealth presents evidence intended to establish probable cause.

The defense has important rights at the hearing as well.

Under Virginia Code § 19.2-183(B), the accused may:

• Cross-examine Commonwealth witnesses;
• Introduce witnesses on the accused’s behalf;
• Testify on the accused’s own behalf; and
• Challenge the Commonwealth’s evidence.

The statute also provides that, in felony cases, the accused is not required to enter a plea at the preliminary hearing.

What Is the Probable Cause Standard?

One of the most important concepts in a preliminary hearing is probable cause.

Probable cause is a substantially lower standard than the beyond-a-reasonable-doubt standard required for a criminal conviction at trial.

The preliminary hearing asks whether the evidence provides a reasonable basis to believe that the accused committed the offense. Virginia Code § 19.2-218 describes the preliminary-hearing inquiry as whether there is “reasonable ground” to believe that the accused committed the offense.

This distinction is critical.

The Commonwealth does not have to prove the defendant’s guilt beyond a reasonable doubt at the preliminary hearing. Instead, the judge determines whether the case has sufficient evidentiary support to continue.

Consequently, a judge finding probable cause does not mean that the defendant has been found guilty.

Can the Defense Cross-Examine Witnesses?

Yes.

One of the most significant features of a Virginia preliminary hearing is the defense’s ability to cross-examine witnesses.

Under Virginia Code § 19.2-183(B), the accused may cross-examine witnesses who testify on behalf of the Commonwealth or another defendant. The accused may also present witnesses and testify.

This can make a preliminary hearing strategically important.

A defense attorney may use cross-examination to explore:

• Whether the witness actually observed the alleged crime;
• Inconsistencies in the witness’s account;
• Identification issues;
• The circumstances surrounding an alleged confession;
• The reliability of statements made to police;
• Whether the witness has personal knowledge of the alleged offense;
• Weaknesses in the Commonwealth’s evidence; and
• Whether the evidence actually establishes each required element of the offense.

The preliminary hearing can therefore provide the defense with an early opportunity to test the Commonwealth’s evidence.

Are the Rules of Evidence Used at a Preliminary Hearing?

Yes.

Virginia Code § 19.2-183(B) specifically provides that the judge hears testimony in accordance with the rules of evidence applicable to criminal trials in Virginia.

There are, however, statutory provisions governing the admissibility of particular types of evidence at preliminary hearings.

For example, Virginia Code § 19.2-183(D) provides that certificates of analysis and certain reports prepared pursuant to §§ 19.2-187 and 19.2-188 may be admitted at a preliminary hearing without testimony from the person who prepared the certificate or report.

Virginia Code § 19.2-187 also contains specific requirements concerning certificates of analysis, including filing requirements when the Commonwealth intends to use a certificate at a preliminary hearing.

These provisions can be particularly important in cases involving drugs, controlled substances, blood alcohol testing, forensic evidence, and other laboratory analysis.

What Happens If the Judge Finds Probable Cause?

If the judge finds sufficient cause to proceed with the felony charge, the case continues toward the circuit court.

The preliminary hearing itself is not a trial and does not result in a finding of guilt.

Virginia Code § 19.2-186 addresses what happens following the preliminary hearing. If the judge determines that there is not sufficient cause to charge the accused with the offense, the accused shall be discharged. If sufficient cause exists, the case can proceed as provided by law.

In practical terms, a finding of probable cause means that the Commonwealth has cleared the preliminary evidentiary hurdle necessary for the felony prosecution to continue.

What Happens If the Judge Finds No Probable Cause?

If the Commonwealth fails to establish sufficient cause, the judge can discharge the accused from the charge.

This can be a significant result for the defense.

However, defendants should understand that a dismissal or discharge at a preliminary hearing does not necessarily mean that the entire matter can never be prosecuted again. The precise consequences depend upon the circumstances of the case, including the nature of the charge, subsequent prosecutorial action, and applicable constitutional and statutory rules.

For that reason, a defense attorney should evaluate what happens after a preliminary hearing rather than assuming that the case is necessarily over.

Can a Preliminary Hearing Be Waived?

Yes.

Virginia Code § 19.2-218 expressly permits the accused to waive the preliminary hearing in writing.

Whether to waive the hearing is an important strategic decision.

There can be legitimate reasons for either proceeding with a preliminary hearing or waiving it. For example, a hearing may provide an opportunity to cross-examine an important witness and obtain sworn testimony. On the other hand, there may be strategic reasons to avoid conducting an early evidentiary hearing, particularly when the defense does not believe the potential benefits outweigh the risks.

The decision should be based on the particular facts, witnesses, evidence, and defense strategy in the case.

Can Multiple Defendants Have the Same Preliminary Hearing?

Sometimes.

Virginia Code § 19.2-183.1 permits joint preliminary hearings when defendants are alleged to have participated in contemporaneous and related acts or occurrences, or a series of related acts constituting an offense or offenses, and jurisdiction lies in the same court.

However, if the court determines that a joint hearing would prejudice a defendant, the court must order a separate preliminary hearing for that defendant.

This can be particularly important in cases involving multiple defendants, such as conspiracy, robbery, drug distribution, or other alleged group criminal activity.

What Is the Difference Between a Preliminary Hearing and a Trial?

A preliminary hearing and a criminal trial serve very different purposes.

The most important distinction is the burden of proof.

A preliminary hearing does not require the Commonwealth to prove the defendant guilty beyond a reasonable doubt. It determines whether the Commonwealth has enough evidence to move the felony prosecution forward.

Why Is a Preliminary Hearing Important?

A preliminary hearing can be one of the most important early stages of a Virginia felony case.

It may provide the defense with an opportunity to:

1. Test the Commonwealth’s evidence.
2. Cross-examine witnesses under oath.
3. Identify weaknesses or inconsistencies in testimony.
4. Preserve potentially important testimony.
5. Determine what witnesses may say at later proceedings.
6. Challenge whether probable cause exists.
7. Obtain a dismissal or discharge when the Commonwealth’s evidence is insufficient.
8. Develop information that may affect later plea negotiations or trial strategy.

The importance of the hearing varies considerably from case to case. An experienced Virginia criminal defense attorney should evaluate the evidence and the potential benefits and risks before deciding how to approach the hearing.

Does Winning a Preliminary Hearing Mean the Case Is Over?

Not necessarily.

If the judge finds insufficient cause and discharges the defendant, the immediate felony charge may not proceed in the ordinary manner. However, the Commonwealth’s ability to take additional action depends upon the specific circumstances and applicable law.

Likewise, if probable cause is found, the defendant has not been convicted. The case continues, and the Commonwealth still bears the burden required for a conviction at trial.

A preliminary hearing is therefore best understood as an important checkpoint in the criminal process, rather than the final determination of the case.

What Should You Do Before a Virginia Preliminary Hearing?

If you have been charged with a felony in Virginia, you should speak with a criminal defense attorney as early as possible.

Before a preliminary hearing, your attorney should evaluate the allegations, the warrant or charging documents, available discovery, potential witnesses, physical and forensic evidence, and the potential consequences of presenting or waiving the hearing.

The decision whether to proceed with a preliminary hearing can have strategic consequences for the remainder of the case.

Virginia Preliminary Hearing Laws: Key Code Sections

The primary Virginia statutes governing preliminary hearings include:

• Va. Code § 19.2-183 — Examination of witnesses, right to counsel, evidentiary matters, and the accused’s ability to cross-examine witnesses.
• Va. Code § 19.2-183.1 — Joint preliminary hearings.
• Va. Code § 19.2-184 — Separation of witnesses.
• Va. Code § 19.2-185 — Reduction of testimony to writing.
• Va. Code § 19.2-186 — Discharge and further proceedings following the preliminary hearing.
• Va. Code § 19.2-187 — Admission of certain certificates of analysis.
• Va. Code § 19.2-187.1 — Procedures concerning certificates of analysis.
• Va. Code § 19.2-188 — Reports of the Chief Medical Examiner.
• Va. Code § 19.2-218 — Right to a preliminary hearing following an arrest for a felony and waiver of that hearing.

Final Thoughts

A Virginia preliminary hearing is much more than a routine court appearance. It is an evidentiary proceeding in which the Commonwealth must establish sufficient cause to continue a felony prosecution.

Under Virginia Code § 19.2-183, the defense has the right to counsel, to cross-examine Commonwealth witnesses, and to present evidence. Under § 19.2-218, a person arrested on a felony charge generally has a statutory right to a preliminary hearing unless that right is waived in writing.

Because testimony and evidence presented at this stage can have strategic importance later in the case, anyone facing a felony charge should carefully discuss the advantages and disadvantages of a preliminary hearing with experienced Virginia criminal defense counsel.

Disclaimer: This article is intended for general informational and educational purposes and does not constitute legal advice. Virginia criminal procedure can vary depending on the specific charge, court, facts, and procedural posture of the case. Laws may also change, so readers should consult a Virginia criminal defense attorney regarding their individual circumstances.