The Preliminary Hearing
If you are arrested in Tennessee on a criminal warrant, you are entitled to a preliminary hearing. All people charged
with a crime that carries a possibility of a jail sentence are entitled to a preliminary hearing whether the charge
be a DUI, drug charge or murder. Not all cases have a preliminary hearing. The case may be one that can be worked
out or negotiated in General Sessions Court. If the case is worked out in General Sessions Court, the most usual
occurrence is a plea and sentence. The preliminary hearing is a test to determine whether or not there is probable
cause or, in other words, enough evidence for the State to continue to charge you with the offense. In most circumstances,
the preliminary hearing is where the State, represented by prosecutors or assistant attorney generals, will present
evidence to the General Sessions Court Judge. After the Judge hears the evidence, the Judge is required to determine
whether the State has shown by preponderance of the evidence that a charge has been committed and you are the one
who committed it. In other words, the State must prove probable cause or prove that it is more likely than not
that you committed the offense. The amount of proof that is necessary is just enough to make it a 51% chance or
better that you committed the offense. Typically, the prosecutor calls witnesses to the witness stand who are sworn
under oath to tell the truth and they testify about what happened. You have a right as a defendant to cross-examine
or ask these witnesses questions on your own. It is usually a good idea to have an attorney do this questioning
for you. You also have a right as a defendant to testify at a preliminary hearing and tell your side of the story.
However, many attorneys believe that it is not a good idea to have a defendant testify at a preliminary hearing.
This is true because the defendant would be subject to cross-examination and would have to answer questions under
oath about the offense.
After the State presents evidence on probable cause, and the defendant presents any evidence he may wish to present
to show that there is not probable cause, the Judge will make a decision. If the Judge is not convinced that there
is at least a 51% chance that the defendant committed the offense, the Judge is required by law to dismiss the
charge. On the other hand, if the Judge believes there is at a 51% chance that the defendant committed the offense,
then the Judge would bind the case to a grand jury.
The grand jury is not the same type of jury as a trial jury. A grand jury is a group of individuals who sit in
a room without a Judge and hear evidence about a case to determine whether there is enough evidence to continue
charging the person with the offense. If the grand jury believes that there is probable cause, they will hand down
an indictment. If you are indicted by a grand jury, you will then be directed to appear in criminal court to face
the charge.
Criminal court is a court of record and if you are to have a jury trial, it will take place in criminal court.
At the arraignment, the Judge will determine whether you understand the nature of the charge against you and, most
likely, set your case for a motion day or a trial setting. It is after this arraignment that you may file motions
with the court and also seek discovery. A motion is a request to the Judge. Discovery is your right to obtain certain
information that the State may have about your case. As a defendant, you are not entitled to all types of information
that the State may have, but there are certain types of information that you are absolutely entitled to receive.
If the State, through its prosecutors is reluctant to give you this information, your attorney may file a motion
with the court telling the Judge that you are entitled to it. If a motion is filed, the Judge will make a decision
and answer the motion and rule one way or the other.
If your case was neither dismissed in General Sessions Court, nor have you been able to negotiate an agreement,
you have the option of going to trial. You always have an absolute right to go to trial on a criminal charge. You
have a right to have the witnesses that accused you come forward and testify and you have a right to cross-examine
those witnesses. You have a right to subpoena and call your own witnesses in your defense. You have a right to
testify on your own behalf, if you so desire. You also have an absolute right not to testify if you so choose.
No one can force you to testify and no one can mention to a jury the fact that you are not testifying if you decide
you do not want to testify.
If you go to trial, you may waive a right to a jury if you and the State, through its prosecutors, can agree. If
you ask for a jury trial, you will have the right to choose twelve people from the community to sit as your jury.
This jury is different from a grand jury. A trial jury will decide whether or not you are guilty beyond all reasonable
doubt. If you go to trial in front of a jury, you do not have to prove your innocence. The State must prove your
guilt. You are presumed innocent and that presumption of innocence must remain with you unless and until the State
can prove that you are guilty beyond all reasonable doubt. All twelve members of the jury must be convinced of
your guilt beyond all reasonable doubt to find you "guilty." All twelve members of the jury must be convinced
of your innocence to find you "not guilty."
If the jury cannot all decide whether you are guilty or innocent, in other words, if some of the jurors think you
are guilty and some of the jurors think you are innocent, then you have a "hung" jury. If the Judge declares
that the jury is hung, he will declare a mistrial. If a mistrial is declared in your case, the State can choose
to try you again in front of another jury. If the jury says you are not guilty, then that is the end of the charge.
The State can do nothing further to you on that particular charge.
If the jury determines you are guilty, you will be sentenced by the trial Judge. A jury may set a fine but the
Judge sets the amount of time that you may be incarcerated or placed in jail.
If you are found guilty by a jury, you have an absolute right to appeal your case to the Tennessee Court of Criminal
Appeals. You must file your appeal within a sort period of time or you will lose your right to appeal. If you appeal
your case, in most situations, you will be complaining about something that was not done properly at your trial.
You may also be complaining about a ruling that the Judge had made on one of your motions prior to trial. If you
can convince the Court of Appeals that there was a problem with the Judge's decision or the jury trial, you may
be entitled to a new trial or other relief that the Court of Appeals deems necessary and proper.
If the Court of Appeals rules against you on your appeal, you can ask the Tennessee Supreme Court to hear your
appeal. This appeal is not an appeal of right and therefore the Tennessee Supreme Court can decide to hear your
appeal or not hear your appeal. If the Tennessee Supreme Court declines to hear your appeal, the Court of Criminal
Appeals decision becomes final.
Provided by the law offices of:
A. Philip Lomonaco
800 s. Gay St., Suite 2610
Knoxville, TN 37929
(865) 521-7422
www.knox-law.com
izyglty@usit.net