What is an Evidentiary Hearing?

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  • Written By: Jessica Ellis
  • Edited By: Bronwyn Harris
  • Last Modified Date: 11 June 2019
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An evidentiary hearing is a form of judicial proceeding that has several different uses in legal systems. In some cases, the term is synonymous with a preliminary hearing, which allows a judge to decide if the prosecution has enough evidence to proceed to a trial. The term may also be used to describe a type of trial where evidence, such as witness or expert testimony and documentation is presented to the court in order to reach a decision on a civil matter.

Depending on the legal system of the region, a person who is arrested without a warrant may have a right to an evidentiary hearing. This step of the judicial process is meant to uphold laws against unlawful and unwarranted search and seizure. Laws that require an evidentiary preliminary hearing harken back to the concept of habeas corpus which suggests that no person should be detained without justifiable cause.

At a preliminary evidentiary hearing, a judge may be trying to ascertain two main criteria. First, the judge must be given evidence that the alleged crime took place in the jurisdiction of the court. This will not only deal with where, geographically, the crime occurred, but also if the crime is within the scope of the court's power. A regional court, for instance, would probably not be willing to prosecute a case that clearly involved a federal crime, as this would be beyond its jurisdiction.


The second part of a judge's job at an evidentiary hearing is to determine if the prosecution has enough evidence to prosecute. If the prosecution cannot produce credible evidence to suggest that the defendant committed a crime, the judge may order dismissal of the case and the immediate release of the detained defendant. Many legal experts recommend that a defendant, whether guilty or innocent, insist on counsel being present at the hearing.

In some civil cases, such as divorce proceedings, an evidentiary hearing may have a different purpose. When determining custody of children, such a hearing allows the judge to speak to the contesting guardians, the children, and any expert witnesses involved in the case. In addition, documentation and evidence supporting each side may be presented to the court. At the end of a child custody evidentiary hearing, the judge may determine all issues surrounding custody of any minor children.

Evidentiary hearings may also be called if parents or guardians are accused of abuse or neglect. These proceedings require evidence to be produced that confirms abusive or negligent behavior before children are allowed to be placed in foster care or the custody of another guardian. Oral testimony may also be allowed in these hearings, often from the children involved in the case.


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