In West Virginia, a preliminary hearing occurs in criminal cases in which the defendant is charged with a felony offense and in juvenile proceedings. A preliminary hearing must be held within 10 days after the initial appearance in front of the magistrate if the defendant is incarcerated or 20 days after the initial appearance if the defendant is not incarcerated or otherwise has been released on bond. Similarly, a juvenile must be granted a preliminary hearing within 10 days after service of the juvenile petition if the juvenile is detained and 20 days after service of the petition if the juvenile is not detained.
Both a preliminary hearing and the time period in which a preliminary hearing occurs can be waived. In West Virginia, a preliminary hearing is not constitutionally required. However, when a preliminary hearing is held it is regarded as a “critical stage” at which a defendant has the right to counsel under the Sixth Amendment.
Preliminary hearings take place in front of a magistrate. The primary purpose of a preliminary hearing is to determine whether probable cause exists to hold the accused for trial. Preliminary hearings also serve to screen out cases in which prosecution is unwarranted. There are two questions that a magistrate must answer at the preliminary hearing: 1) whether there is probable cause to believe that an offense was committed and 2) that the defendant or juvenile committed it. The State of West Virginia, acting through its prosecuting attorney, must prove both of these elements. Typically, a law enforcement officer will testify regarding his or her investigation. Occasionally, alleged victims and other witnesses will also testify, depending on the nature of the case.
Any witness who testifies on behalf of the State of West Virginia is subject to cross-examination by defense counsel. An experienced criminal defense attorney will use this opportunity to “lock-in” testimony of the State’s witnesses. A witness is under oath when he or she testifies at a preliminary hearing, and their testimony can be utilized in later proceedings.
A defendant and a juvenile both have an absolute right to testify at a preliminary hearing and also have a right to call witnesses on their behalf. However, they will be subject to cross-examination by the prosecuting attorney. If the magistrate answers both of the above questions in the affirmative, then the case is transferred to the Circuit Court.
In practice, a preliminary hearing is the first real adversarial step in the criminal process. A prosecutor often gauges the case by the defense attorney’s actions at the preliminary hearing. An effective criminal defense attorney can set the pace for the remainder of the criminal proceedings by displaying a strong presence at the preliminary hearing.
The attorneys at The Moore Law Firm frequently resolve criminal cases at the preliminary hearing for a favorable plea agreement or an outright dismissal of the criminal charge.