Clearing your name is our #1 priority.

meet the attorneys case results
  • What Happens at a Preliminary Hearing for Domestic Violence?

    Posted on by JACK MKHITARIAN

    What Happens at a Preliminary Hearing for Domestic ViolenceIf you have been charged with domestic violence and scheduled for a preliminary hearing, you may be wondering, What happens at a preliminary hearing for domestic violence?

    Another name for a preliminary hearing is a “probable cause hearing.” This term can help you remember that at a preliminary hearing, the prosecutor attempts to prove there is probable cause you committed a crime. The hearing works like a mini trial, where the State and the accused present arguments for and against finding probable cause.

    An experienced criminal defense attorney can help you through the preliminary hearing. Whether that means offering your airtight alibi or positioning you in the best place for a plea deal or successful trial, we can help. At the New Mexico Criminal Law Offices, we have over 20 years of experience defending people charged with crimes in New Mexico. Contact us today.

    The Road to the Preliminary Hearing

    Although the preliminary hearing happens early in the criminal process, a few things happen before it. An arrest begins the process to formal charges. With the arrest comes the complaint.

    The Complaint

    Every criminal case starts with a “complaint,” generally part of the paperwork the officer completes when they arrest someone. The complaint sets out what crime the officer believes you committed. When you are accused of domestic violence, the charge will often be a violation of sections 30-3-12 through 30-3-18 of New Mexico’s criminal code. The prosecutor, called the District Attorney, takes the case from there. They will review the complaint and file charges against you.

    The Type of Charge

    You will only be scheduled for a preliminary hearing if you have been charged with a felony, not if you have been charged with a misdemeanor. Many domestic violence charges are misdemeanors. However, accusations of serious harm or repeated offenses are felonies.

    Scheduling the Hearing

    The timing of the hearing depends on whether you are in custody. If you are in jail, the court must schedule a preliminary hearing within 10 days of arrest. If you are not in jail, the court must schedule a preliminary hearing within 60 days. 

    Your Rights

    You have the right to have counsel at the preliminary hearing, a right we strongly recommend you exercise as soon as possible. After your arrest, the prosecutor will begin building a case against you. At the same time, you and your criminal defense attorney can begin building your defense. A defense attorney can also help you decide whether it could benefit you to waive your preliminary hearing. 

    At the Preliminary Hearing

    What happens at a preliminary hearing for domestic violence looks a lot like what happens at a trial. The prosecution and defense present their arguments to a judge, who decides whether the case will proceed beyond the preliminary hearing.

    A preliminary hearing for domestic violence in New Mexico begins with the judge ensuring everyone knows their rights and is prepared. Then the prosecution presents the case against you. Next, the accused presents their defense. Finally, the judge decides if the prosecutor proved there was probable cause you committed a crime.

    Evidentiary rules are generally relaxed at preliminary hearings, especially rules forbidding hearsay and requirements on how evidence is authenticated. However, preliminary hearings are still subject to the rules of criminal procedure. An experienced criminal defense attorney can ensure the prosecutor follows the rules and does not trample on your rights.

    The Prosecution Makes Their Case

    At a domestic violence preliminary hearing, the prosecution’s case will often include witness testimony of the arresting officer and documentation of any alleged injuries, like photos or medical paperwork. The prosecution may call the alleged victim to testify, but they do not have to. The accused has the right to cross-examine state witnesses and can raise objections if the State goes beyond its role.

    The Defense Makes Their Case

    The defense then gets to offer documentary evidence and call witnesses to testify. This is a chance to show the judge you did not commit a crime. Like the defense during the prosecution’s case, the State can cross-examine witnesses and raise objections.

    The Judge Makes a Decision

    The next step at a domestic violence preliminary hearing is for the judge to determine whether there is probable cause you committed a crime. By design, probable cause is not that difficult to prove. It is a much lower standard than the beyond-a-reasonable-doubt standard required for conviction. The prosecutor needs only to convince the judge there is enough evidence that a trial has a genuine likelihood of resulting in conviction.

    If the State fails to prove probable cause for a charge, the judge will dismiss that charge. The judge might dismiss some charges but retain others if you were charged with multiple offenses. If the judge dismisses all charges, the State must drop the case against you. If the judge concludes the State proved probable cause, however, the judge will schedule a trial.

    Differences Between Preliminary Hearings and Criminal Trials

    Several things distinguish the preliminary hearing from a trial, including:

    • Timing—the preliminary hearing happens earlier;
    • Burden of proof—the prosecutor must show probable cause rather than proving the charge beyond a reasonable doubt;
    • Decision-maker—a judge will always make the decision, not a jury;
    • Rules of evidence—evidentiary rules are often relaxed at a preliminary hearing; and
    • Evidence—less evidence may be offered or required.

    Preliminary hearings function like mini trials. Having an experienced defense attorney by your side is crucial to protecting your rights at both the preliminary hearing and trial.

    The preliminary hearing allows each side to evaluate the other’s case. It can help your team identify what to investigate and how to design the best defense strategy. After the preliminary hearing, the prosecutor may even offer a new or better plea deal. 

    Our Criminal Defense Attorneys Can Help Protect Your Rights at a Preliminary Hearing

    Although a preliminary hearing is not as formal as a trial, having an experienced defense attorney by your side to fight for you is crucial. At the New Mexico Criminal Law Offices, we have spent two decades fighting for people in the criminal justice system. If you have been scheduled for a preliminary hearing for domestic violence in New Mexico, reach out today. We work with our clients to develop innovative and unique case strategies, and we will fight for you every step of the way.