Preliminary Hearing

Discussion in 'Legal Terminology' started by GMR, May 3, 2006.

  1. GMR Member

    English, USA
    Field and topic:
    Please help me to translate this. Thanks!

    Sample sentence:
    The Preliminary Hearing is a hearing to determine if the defendant has probably committed a crime.
  2. Natalia_Arg New Member

    Buenos Aires
    En Argentina tenemos la "declaración indagatoria", en la cual el juez le recibe declaración al imputado cuando hubiere motivo bastante para sospechar que la persona participó en la comisión de un delito; luego de este interrogatorio, si se encuentran elementos de convicción suficientes, se ordena el procesamiento del imputado.
    Hope this helps in some way!
  3. tillymarigold Senior Member

    Yo lo interpreto «audiencia preliminar».
  4. Natalia_Arg New Member

    Buenos Aires
    La razón por la que no elegí "audiencia preliminar" es porque es un término utilizado en derecho civil, es una conferencia para acercar a las partes y que logren un acuerdo antes de ir a juicio, y si se utiliza ese término en derecho penal carece de sentido y puede llevar a confusión ya que en un proceso civil no hay delito!!!
  5. Venezuelan Girl Member

    Pittsburgh, PA, USA
    Venezuela - Spanish
    En Venezuela la "Audiencia Preliminar" es una figura del Derecho Penal.
  6. dauda98 Senior Member

    United States
    Since you put es-mx, I'm assuming you want to know how they say it in Mexico. There they call it "declaracion preparatoria". That is the name of the hearing (I find the part declaracion can throw one off a bit). It functions like an arraignment.

    I, on the other hand, prefer to say "vista de primera instancia".
  7. tillymarigold Senior Member

    Two questions here: a "preliminary hearing" in the US federal system does *not* function like an arraignment, so I wonder if that's a bit misleading (depending, of course, on what type of preliminary hearing GMR is referring to, but a "preliminary hearing" in the federal system is indeed the hearing that is held to determine if there is probable cause to believe the defendant has committed a crime, so I assume that's the context GMR means). I mean, the Mexican equivalent of what a preliminary hearing means to you (ah, how I wish for a unified legal system!) may be "declaración preparatoria" but it sounds like your understanding of a "preliminary hearing" is not the same as mine. I'm not sure what GMR's understanding of the term is, though!

    Second question is that based on that, it's *not* a "vista de primera instancia". I use "vista de primera instancia" for the "initial hearing" or "first appearance," which precedes the preliminary hearing. The "initial hearing" is also what I'd call the "arraignment on the complaint" (as opposed to "arraignment on the indictment"). If you were to say to me "declaración preparatoria" I would understand it as an arraignment on the complaint/first appearance/initial hearing, i.e. where the defendant has the first chance to respond to the charges in a preliminary way. Unfortunately we're having massive problems getting any bilingual legal dictionaries around here for some reason, so I can't look it up. (It's not in the 30-year-old one I inherited when I started this job and I've been waiting three months on newer ones.)

    The preliminary hearing (in federal court) comes between the two arraignments and is a preliminary determination on whether there's enough probable cause to continue with the case. (I say it's a preliminary determination, because the grand jury's function is to make the final determination on probable cause.) If someone is arrested on an indictment and not a complaint, they may have an initial hearing and then an arraignment, or they may just have the arraignment, but there is no preliminary hearing because the grand jury has already determined probable cause.

    For example, a defendant was arrested on the 13th, had his initial hearing (vista de primera instancia) on the 15th, and is scheduled for his preliminary hearing (audiencia preliminar) today. He'll probably have his arraignment (instrucción de cargos) in a month or two, after the grand jury hearing, assuming he doesn't plead before then.

    So I guess I'm wondering what a "preliminary hearing" is wherever you are? It sounds like it's the same thing as a "first appearance" in New Jersey or an "initial hearing" in federal court.

    And perhaps GMR could clarify what context he's asking in, since your suggestion would be right for where you are [I'm not disputing that!] but wrong for federal court since the preliminary hearing is *not* a primera instancia.
  8. dauda98 Senior Member

    United States
    Your right, I shouldn't assume anything. I automatically thought she was referring to county/circuit court. I didn't think about federal court.

    As for you question, we don't use the term preliminary hearing in the circuit I work. We start with IA's, then arraignments, then pretrials, then trial. The term is not used here. However, it is used in other circuits here in FL and it would be the equivalent to initial appearances. By the brief definition GMR, it seemed to me that she was referring to that.

    And yes, unfortunately we are comparing apples with oranges (mexican and american judicial systems). All I was trying to state was that the first proceeding that they have is the declaracion preparatoria. By all means, correct me if I am wrong.

  9. tillymarigold Senior Member

    Actually, I was thinking about it, and you're absolutely right and I remembered a Mexican colleague who used to call the first appearance "declaración preparatoria." So if GMR is referring to the first appearance (which can be called the "preliminary hearing" in some places) then it would be "declaración preparatoria" in Mexican Spanish, or vista de primera instancia more generically. (Since at least 90% of my clients are Mexican, I wonder if I should start saying that instead of "vista/audiencia de primera instancia.")

    So, if you were confronted with the term "preliminary hearing" in the federal sense (also called "probable cause hearing"), what would you do with it? I quite like "audiencia/vista preliminar" despite its apparently being a settlement conference in Argentina and possibly elsewhere (especially since I haven't seen an Argentinean since I left New Jersey), but I'm open to suggestions.
  10. dauda98 Senior Member

    United States
    I was taught: audiencia/vista de averiguacion sumaria.
  11. leoxyz Member

    Austin, TX
    Audiencia de indicios

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