A preliminary examination in California is a pretrial hearing in a felony case where a judge reviews the prosecution’s evidence and decides whether there is enough reason to send the case forward toward trial. The standard the judge applies is probable cause, which is far lower than the beyond-a-reasonable-doubt standard a jury would later use to convict.1California Legislative Information. California Code PEN 872 The judge is not deciding guilt. The judge is deciding whether a reasonable person, looking at the evidence presented, would believe the defendant probably committed the charged offense.
Lawyers call this hearing a “prelim.” It functions as a filter: cases built on suspicion alone are supposed to get stopped here before a defendant ever faces a jury.
When a Preliminary Examination Applies
Only felony cases initiated by a criminal complaint go through a prelim. Misdemeanors do not. Neither do felony cases brought by grand jury indictment, because the indictment itself serves as the probable cause finding and takes the place of the hearing.
At the arraignment on the complaint, the court must tell you that you have a right to a preliminary examination and a right to an attorney. If you cannot afford one, the court appoints counsel before the hearing goes forward.
How Soon the Hearing Must Happen
If you are in custody, the preliminary examination must take place within 10 court days of your arraignment or plea, whichever comes later.2California Legislative Information. California Code Penal Code 859b Court days skip weekends and holidays, so 10 court days runs roughly two calendar weeks.
Miss that window without a personal waiver from the defendant and the complaint must be dismissed.2California Legislative Information. California Code Penal Code 859b The prosecution can escape dismissal by showing good cause for a delay, but even then a continuance adds no more than three extra court days. If the hearing slips past the deadline and none of the exceptions apply, you must be released from custody even if the case has not been formally dismissed yet.
If you are out on bail or your own recognizance, the 10-day target still applies to scheduling, but the automatic dismissal remedy is written for in-custody defendants.
What Happens Inside the Courtroom
The hearing is adversarial. It takes place in front of a judge acting as a magistrate, with the prosecutor, defense attorney, and defendant all present. It looks like a stripped-down trial, with looser rules and a different question in front of the judge.
The prosecution goes first. It calls witnesses and introduces evidence to show probable cause, usually through investigating officers, victims, and eyewitnesses. The defense cross-examines each witness, looking for weaknesses, inconsistencies, and constitutional problems in how evidence was collected. This cross-examination is one of the most valuable parts of the prelim from the defense side, because the testimony is given under oath and gets locked in for later use.
A big difference from trial is hearsay. Normally a witness cannot repeat what someone else told them to prove the truth of that statement. At a preliminary examination, California allows a qualified law enforcement officer to relay out-of-court statements from victims, witnesses, and other declarants, and the judge can rely on that hearsay to find probable cause.1California Legislative Information. California Code PEN 872 In practice this often lets the prosecution present an entire case through a single experienced detective rather than calling every witness.
The defense can call its own witnesses, but with a limit. If the prosecutor asks, your attorney must make an offer of proof explaining what the witness will say. The judge will allow the testimony only if it would reasonably establish a defense such as self-defense or alibi, disprove an element of the charged crime, or undermine a prosecution witness’s credibility. You cannot call witnesses just to find out what the prosecution has. The statute is explicit that the hearing is for determining probable cause, not for discovery.3California Legislative Information. California Penal Code 866
Challenging Evidence at the Prelim
If key evidence came from what your attorney believes was an illegal search, seizure, or arrest, you can file a motion to suppress it at the preliminary examination under Penal Code Section 1538.5. If the suppressed evidence was the backbone of probable cause, the prosecution may not be able to meet its burden.
The deadline is strict. You must file a written motion with supporting legal arguments and personally serve it on the prosecution at least five court days before the hearing.4California Legislative Information. California Code PEN 1538.5 The prosecution then has until two court days before the hearing to respond in writing. If you did not know about the evidence or the grounds for suppression in time, the judge can grant a continuance so the motion can be filed.
A suppression motion at the prelim reaches only the evidence the prosecution is trying to introduce at that hearing. You get a second, broader shot at suppression after the information is filed in Superior Court.4California Legislative Information. California Code PEN 1538.5
How the Hearing Can End
Held to Answer
If the judge finds probable cause, the judge issues an order holding you to answer.1California Legislative Information. California Code PEN 872 This is the most common result. The probable cause standard is deliberately low, and dismissals at this stage are less frequent than defendants often hope.
Once you are held to answer, the prosecutor has 15 days to file a new charging document called an information in Superior Court.5Judicial Branch of California. California Rules of Court 4.110 The information can include only those charges the judge found probable cause for. You will be arraigned again on the information, and the case moves toward trial. If the prosecution misses the 15-day deadline, the case must be dismissed.
Charges Dismissed
If the judge concludes no crime was committed or that there is not enough evidence linking you to one, the judge must dismiss the complaint and order you released.6California Legislative Information. California Code PEN 871 That is a real win, but it is not always the end of the matter.
For felony charges, the prosecution generally gets one chance to refile. A second dismissal bars further prosecution for the same offense unless the court finds substantial new evidence, direct witness intimidation, or certain other narrow exceptions.7California Legislative Information. California Penal Code 1387 For violent felonies, the prosecution may get one additional refiling opportunity beyond the normal limit if a prior dismissal came from excusable neglect rather than bad faith.
Waiver
You can waive the preliminary examination at any time after your initial appearance, as long as you have a lawyer. If you waive, the magistrate immediately enters an order holding you to answer and the district attorney has 15 days to file the information. No hearing, no testimony, no judicial finding that probable cause actually exists.
People waive for tactical reasons. Sometimes the evidence is overwhelming and there is nothing to gain from previewing the prosecution’s case in open court. A waiver can speed up a plea negotiation already underway. It can also keep damaging testimony off the public record early.
The trade-offs are serious. You give up cross-examination of prosecution witnesses under oath. You give up the chance to challenge evidence through a suppression motion at the prelim. You give up any possibility, however small, that the judge dismisses the charges outright. And you lose locked-in testimony your attorney could later use to impeach a witness who changes their story at trial. Waiving is a specific tactical choice, not a default.
Challenging the Holdover After the Fact
Being held to answer is not the last chance to avoid trial. After the information is filed in Superior Court, your attorney can file a motion under Penal Code Section 995 asking the court to set it aside. The motion argues that you were committed without reasonable or probable cause, or that you were not legally committed by the magistrate.8California Legislative Information. California Code PEN 995
A 995 motion puts a Superior Court judge in front of the prelim record with fresh eyes. If that judge agrees the evidence did not actually support probable cause, the information is set aside. Experienced defense attorneys sometimes recover ground here, especially when the magistrate leaned on hearsay or gave the prosecution the benefit of the doubt on thin evidence. The prosecution can still refile after a successful 995 motion, subject to the same refiling limits under Section 1387.