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What Is a Preliminary Hearing in a Nevada Criminal Case?

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At Goodman Law Group, we receive calls from clients at all stages of the criminal process, and find that many of the processes and terminology used by courts can cause confusion. That’s especially true in cases that are in the earliest stages and for matters like preliminary hearings, which commonly get mixed up with other early-stage proceedings like arraignments, even when they’re quite different.

To make it all clear:

  • A preliminary hearing, sometimes called a preliminary examination or probable cause hearing, is a type of evidentiary proceeding that takes place before an arraignment as a means to determine if a case will even happen. In Nevada, only felony and gross misdemeanor charges can go through a preliminary hearing. There's no preliminary hearing for misdemeanors, and there's no preliminary hearing at all if the case was already indicted.
  • An arraignment, as we’ve covered, is a procedural step that occurs at the beginning of nearly every case. It’s held in open court and defendants are required to appear so they can hear the charges against them and enter their plea.

If you or someone you love is embarking on a criminal case and feel confused, you’re certainly not alone. However, now is the time to educate yourself and make sense of what’s happening so you can protect your rights and prepare for the process ahead.

Two Paths to a Felony Case: Indictment or Preliminary Hearing

Before any felony or gross misdemeanor case can reach district court in Nevada, the State (prosecutors) need to show that there’s probable cause. They can do this through one of two pathways:

  • The first is a grand jury indictment. The prosecutor presents evidence to a 17-person grand jury in a closed proceeding under NRS Chapter 172. Because this is a closed proceeding, the defendant isn’t present and doesn’t get to cross examine anyone. In some cases, a defendant may not even know a grand jury proceeding is happening until it’s over. If 12 or more grand jurors agree, they return an indictment.
  • The second is a criminal complaint followed by a preliminary hearing. The prosecutor files a complaint and the case proceeds to an open hearing before a magistrate in justice court. The defendant can be present for this and may cross examine witnesses.

Under NRS 171.196, a defendant already been indicted by a grand jury isn't entitled to a preliminary hearing, since the grand jury's finding of probable cause already serves that function.

Ultimately, it is the prosecutor who decides which path to pursue. Most felony cases in Nevada move through the preliminary hearing route, since it's more straightforward to initiate. Grand juries are often used for more complex or sensitive cases, or when prosecutors want to lock in testimony before a defendant becomes aware of an investigation.

Where Arraignment Fits In

Arraignment isn't a substitute for a grand jury or preliminary hearing, and it isn’t optional. It happens after, regardless of which of those two evidentiary proceedings took place.

Once a case is bound over following a preliminary hearing, or a grand jury returns an indictment, the defendant is arraigned in district court. This is where charges are formally read and a plea is entered. The only difference is what's being read. For example, it may be:

  • A criminal information after a bind over / preliminary hearing; or
  • An indictment after a grand jury proceeding.

Arraignment itself doesn't involve evidence or a probable cause finding. That already happened at the preliminary hearing or grand jury stage.

The Goal: Probable Cause, Not Guilt

Preliminary hearings have a narrow purpose. When they happen, the magistrate focuses solely on deciding whether there’s probable cause that a crime was committed by the defendant, which is a significantly lower burden of proof than “beyond a reasonable doubt,” which is what’s required for a conviction at trial.

This means that losing a preliminary hearing doesn’t necessarily mean that prosecutors have a strong case against you. Instead, it only means the evidence they have cleared a low threshold to proceed.

Who Decides, and When It Happens

Because there’s no jury at a preliminary hearing, a judge decides the outcome. The district attorney's office prosecutes the hearing, under NRS 171.202, and the defendant has the right to have an attorney present, with reasonable time allowed for counsel to appear if needed.

Timing is set by statute. Under NRS 171.196(2), the hearing must happen within 15 days of the defendant's initial appearance, unless the magistrate extends that window for good cause. Any delay needs to have a justification on the record.

What Happens During the Preliminary Hearing

The prosecutor presents evidence first, usually through live witnesses such as the arresting officer or the alleged victim. The defense has the right to cross examine all witnesses called by the state.

Hearsay is treated differently here than at trial. In most cases, hearsay evidence is admissible, meaning an officer can testify about what a witness told them without that witness needing to appear. There's a narrow exception: hearsay from an alleged victim is restricted in certain felony cases involving child sexual offenses, child abuse, or domestic violence causing substantial bodily harm.

The defense can present evidence or call witnesses, but it’s not very common. Rather than showing their hand at this stage, most defense attorneys will hold their case in the event it goes to trial. Once both sides are heard, the magistrate rules.

Possible Outcomes

There are a few ways a preliminary hearing can end:

  • The case is bound over. If the magistrate finds that there’s probable cause, the case moves from justice court to district court, where a formal arraignment follows.
  • Charges are dismissed. If the state fails to establish probable cause on a given charge, that charge has to be dismissed. This can happen to some counts and not others in a multi-charge case.
  • Charges are amended. Based on what comes out during testimony, the magistrate may allow charges to be adjusted to match the evidence.

A dismissal here doesn't always end things permanently. Depending on the charge, the state may still pursue the case through a grand jury indictment.

Why a Preliminary Hearing Is a Valuable Tool

Given the low bar, most preliminary hearings end in a bind over but that doesn’t mean a hearing is unimportant or just a procedural step.

For us on the defense, it provides an opportunity to see what the state has in terms of evidence and to hear the state’s witnesses testify under oath. At this stage, cross examining witnesses can lock them into a specific version of events, which can come into play later should their story shift. It also allows defense attorneys like myself to get a read on the true strength of a case, which can shape game plans, plea negotiations, and trial strategies.

And this, perhaps, is probably one of the most powerful differences between the two paths to a felony charge. An indictment doesn’t give the defense any of this. Because it comes from a closed grand jury proceeding, there’s no cross examination or chance to test witnesses early, and often no notice at all that a grand jury is even considering a case.

Because a preliminary hearing carries this kind of value, defendants can waive it but generally shouldn't without a clear strategic reason, such as an already-negotiated plea agreement that makes the hearing unnecessary.

Frequently Asked Questions

Is a Preliminary Hearing the Same as an Arraignment?

No.

  • An arraignment is where charges are formally read and a plea is entered.
  • A preliminary hearing is a separate evidentiary proceeding, held earlier, where the prosecution has to present evidence and a magistrate decides whether there's probable cause to proceed.

Why Would a Prosecutor Choose a Grand Jury Over a Preliminary Hearing?

Because they’re closed proceedings, grand juries offer secrecy. A prosecutor might prefer them to protect a witness's identity, avoid tipping off a defendant before an arrest, or to move a complex or sensitive case without public proceedings along the way.

What Happens if I'm Indicted by a Grand Jury Instead?

There's no preliminary hearing, since the grand jury's finding of probable cause already serves that purpose. The case moves directly to a district court arraignment on the indictment.

Is a Preliminary Hearing the Same as a Trial?

No. There's no jury, the standard of proof is far lower, and the defense isn't required to present a case. It only determines whether the case can move forward, not guilt.

Can a Preliminary Hearing Get My Charges Dismissed?

Yes, though it's uncommon given how low the standard is. If the state can't establish probable cause on a specific charge, that charge must be dismissed, even if others in the case move forward.

Should I Waive My Preliminary Hearing?

Only with a specific strategic reason, usually tied to an existing plea negotiation. Otherwise, the hearing provides real information and leverage that's hard to get any other way.

About the Author

Ross Goodman is Founder of Goodman Law Group. He is one of only two attorneys in Nevada dual-certified by the State Bar of Nevada as a Certified Specialist in Criminal Trial Advocacy and by the National Board of Trial Advocacy as a Board-Certified Criminal Trial Law Specialist. A lifelong Las Vegas resident and retired U.S. Marine Corps Major, Ross has cross-examined witnesses at preliminary hearings throughout Nevada for nearly three decades.

If you're facing a felony charge and have a preliminary hearing coming up, call (702) 825-7854 or reach out online. We're available 24/7 to help.