What Is An Evidentiary Hearing?

Last Updated on May 11, 2022 by Fair Punishment Team

If you are ever involved in any type of legal case – either criminal or civil – there is a chance that the court will ask for an evidentiary hearing. 

What Is An Evidentiary Hearing

An evidentiary hearing is any type of court proceeding that involves the submission of evidence before a judge.

This evidence may be in the form of documents, written communication, or could call for witnesses providing statements and testimonies under oath.

Criminal cases tend to have an evidentiary hearing as standard. A felony trial will most certainly be preceded by an evidentiary hearing as the crime is very serious. 

In civil matters, evidentiary hearings are still fairly common. They are often used in divorce proceedings or for personal injury lawsuits.

Criminal Proceedings And Evidentiary Hearings

It is more common for an evidentiary hearing to be called a preliminary hearing in a criminal case.

The two terms may be interchangeable but they do mean the same thing – a court hearing before the trial to go through the evidence. 

Preliminary hearings will be heard quite early on in the criminal proceedings as what is decided at this stage will impact what happens in the future of this specific case. 

As a general rule, a criminal case will be initiated by the state by either the prosecutor’s office or the district attorney filing a complaint against the defendant.

The specified defendant will then have to appear before arraignment to enter their plea against the charges brought to court, and during this process they will be informed of their legal rights.

If it is a felony crime, it is now that there will be an evidentiary hearing.

Probable Cause

The purpose of an evidentiary hearing for felonies is to determine how likely it is that the accused did commit the crime.

In all criminal cases, felony or not, the burden of proof is on the state – the state or prosecution must provide enough evidence to persuade the jury that the accused committed the crime.

In an evidentiary hearing, the state must establish that there is at least a reasonable chance that the accused committed the crime before a judge. 

If the judge does find probable cause, they will allow the case to proceed to trial. If probable cause is not found then the judge will dismiss the case.

Dismissing the case means that all charges are dropped because the state could not provide sufficient evidence to justify moving forward with criminal proceedings. 

Remember that the accused will not be found guilty at the evidentiary hearing or preliminary hearing.

The hearing is just an opportunity for the court to be satisfied that there is enough evidence for a jury to make an informed decision about the defendant’s guilt should the case go to trial.

Testimony In Criminal Cases

The prosecution is usually the side to present witness testimonies and other evidence in an evidentiary hearing for a criminal case.

This is primarily because the defendant is not given an opportunity at this stage to protest their innocence.

There is more than enough opportunity for defense should the case go to trial. The defense will not even be necessary if the case is thrown out at this step. 

Defending themselves now will not be of any benefit to the defendant at this point and is more likely to hinder their case.

If a defendant argued their innocence now, it gives the prosecution ample time to work on counterarguments to rebut any possibility of a not guilty verdict at the actual trial. 

While the defendant cannot submit evidence, the defense team can cross-examine any state witnesses.

This is done to demonstrate that the state has not met its burden of proof and has failed to adequately prove probable cause.

Civil Cases

For civil cases, it is more common for motions to be filed prior to the main trial. This is done to try to compel the opposing side to cooperate in return for information or to seek a summary judgment. 

Some motions in a civil case will need a judge to review the evidence – especially if the case is part of family court proceedings. Other motions – like a summary judgment – just comprises of oral argumentation. 

If the motions in a civil case need any type of testimony, the court will require an evidentiary hearing. It may be that the evidentiary hearing is part of a mixture of court proceedings that all pertain to the same case.


If it is found that there is a genuine dispute about the relevance of evidence, each party will be allowed to argue their side at the evidentiary hearing.

Any evidence that is found to be not material, relevant, or valuable to the case will not be allowed to be admitted for consideration at the trial.

Any evidence that is found to be unreliable will also not be permitted for use at trial.


Do I Need An Evidentiary Hearing For A Felony?

An evidentiary or preliminary hearing is an essential component of securing a felony conviction.

If you have been accused of a felony but you believe that the state will not be able to provide enough proof that you did commit the crime, you will still have to have a preliminary hearing.

Remember that this hearing is not the chance for you to defend yourself but is a chance for the state to demonstrate what evidence they have against you.

If the judge finds it insufficient and cannot establish a probable cause, the charges against you will be dismissed. This may not happen until the formal trial has begun.

What Is Probable Cause?

Probable cause just means that there must be grounds to believe that the defendant did commit the crime.

This is the threshold that must be surpassed to justify law enforcement making a search, as well as at the evidentiary hearing.

What Is A Summary Judgment?

A summary judgment is a procedure that allows any party to a civil case to dismiss part or all of a claim without the need for a trial.

This is done either where there is no real prospect of success or no compelling reason for a trial.