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What happens at a Preliminary Hearing in Oklahoma?

Posted by E. W. Childers | Sep 03, 2019 | 0 Comments

What is a preliminary hearing? There are a lot of terms thrown around regarding the first stage of the Oklahoma felony trial process. Below are some of them.

Preliminary Hearing  

Preliminary Hearings are a part of felony proceedings in Oklahoma.  If a defendant is only charged with misdemeanors then preliminary hearings don't happen and if the charges are a mix of felonies and misdemeanors, the misdemeanors are not usually much discussed in preliminary hearing before a magistrate (usually, but not always a Special Judge).  At the preliminary hearing the state has the burden to provide evidence to the judge that probable cause exists to believe that the defendant committed a felony crime.  This is a very low burden of proof as the magistrate is required to consider all the evidence presented in the light most favorable to the State. The judge can then do a couple of different things.

(1) The judge can bind the defendant over for trial on the charges as filed;

(2) The judge can bind the defendant over on different charges, depending on what he believes the evidence actually shows;

(3) The judge can find that probable cause does not exist to bind the defendant over on felony charges and dismiss those charges.

At the preliminary hearing the defendant does not present evidence, instead the defendant, through counsel, objects to testimony as appropriate, cross-examines the witnesses, and makes arguments to the judge about the sufficiency of the evidence.  If the judge declines to dismiss all the felony charges then the next court hearing will be a formal arraignment held in front of the assigned District or Associate District Judge (who is different from the magistrate who decided the preliminary hearing). At that setting the Defendant will re-assert their plea of not guilty.

Preliminary Hearing Conference 

There is usually a set of court dates prior to actually having a preliminary hearing and these court settings go by different names; the ones I've heard of are (1) preliminary hearing conference (most common to us); (2) pre-preliminary hearing; (3) bond appearance; and (4) preliminary announcement.  (I have no doubt that there are other names for this court setting floating out there.) At these settings your attorney and the prosecutor will discuss your case including the evidence and the state's recommendation as to the punishment if the defendant pleads guilty.  If it becomes apparent that the case will not be resolved by plea prior to preliminary hearing then the case is set for a preliminary hearing or the defendant waives his preliminary hearing.  In most instances cases will not be continued beyond a certain point. Some magistrates (preliminary hearing judges) require extremely speedy resolution of preliminary proceedings.

Waiver of Preliminary Hearing

Sometimes it is in the defendant's best interest to skip the preliminary hearing process.  The most common reason for this is that a revocation on a prior crime is pending.  The transcript from a preliminary hearing is admissible in proceedings to revoke a suspended sentence or accelerate a deferred sentence and can result in imprisonment for a prior offense.  In such situations the defendant and his attorney will have to weigh the risks and act appropriately.

If you need an Oklahoma criminal defense attorney you know where to call.

About the Author

E. W. Childers

I am a husband, father, Army veteran, and attorney here in Norman, Oklahoma. I've been practicing law throughout Central Oklahoma since 2006 shortly after I graduated from the OU College of Law. In my practice I have emphasized Family Law, Criminal Defense, and Personal Injury. I like to help peo...


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