Adversarial Preliminary Hearings


What is an adversarial preliminary hearing?

An adversarial preliminary hearing is rarely used, but can be an effective tool. 

A person is entitled to an Adversarial Preliminary Hearing when:
  • arrested on a felony,
  • it has been 21 days since the arrest, and
  • the State has not filed an Information (formal charging document).

Witnesses can be called and cross examined by the defense attorney and the judge shall make a probable cause determination.  If the judge determines that there is probable cause, the person would continue to be held in custody.  If the court determines that there is no probable cause, the person shall be released unless an Information is filed, in which case, the person shall be released on their own recognizance.  

The State shall file formal charges on a person who is in custody within 30 days of arrest.  If charges are not filed, the court shall notice the state, and order the person released on the 33rd day, or if good cause is shown, order the person released on their own recognizance on the 40th day, unless the Defendant is formally charged.  A person shall not remain in custody beyond 40 days if that person has not been formally charged.  

As a practical matter, a person is rarely released based on these rules.  State Attorney's Offices have internal procedures that ensure that charges are filed within their deadlines.  However, there have been times when charges have not been filed within 40 days and a person is released from custody.  If you have questions about yourself or a loved one who is in custody and has not been released or formally charged, call the experienced Jacksonville criminal defense lawyers at LGL for a free consultation.  

Why would I want an adversarial preliminary hearing?

If the State hasn't filed an Information within 21 days, and you aren't interested in negotiating or communicating with the State to try to convince them not file charges, to file lesser charges, or to negotiate a disposition, then it may be to your advantage to file an Adversarial Preliminary Hearing motion.  The benefit is that your attorney will be able to cross examine state witnesses and obtain sworn testimony that can be used in your defense.  You also could be released, if in custody. 

Why wouldn't I want an adversarial preliminary hearing?  

An Adversarial Preliminary Hearing can be an effective tool, but filing the motion could also have unintended negative consequences.  Between the arrest date and the time the prosecutor files an Information, the defense attorney is often able to discuss the case with a prosecutor and often can convince the prosecutor to drop the charges or can negotiate a beneficial deal with the prosecutor.  When a defense attorney files an Adversarial Preliminary Hearing motion, the prosecutor may be less willing to negotiate or to discuss the case and may file formal charges in response to the Adversarial Preliminary Hearing motion.  Filing the motion could be a bad strategy if the criminal defense attorney believes the case may be dropped or resolved with little to no jail time through communication with the prosecutor.  Once the prosecutor files formal charges, that prosecutor is usually less likely to drop the case.  So whether an Adversarial Preliminary Hearing motion is filed should depend on the strength of the evidence and whether the person intends to go to trial or whether the person wants to negotiate with the State.  

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