What is a Preliminary Hearing?

            The preliminary hearing is one of the most important pre-trial criminal proceedings because it is an invaluable tool to learn what the Commonwealth’s case is, what the police officers will say and what they want, along with what witnesses will say against you.

            The preliminary hearings main purpose is to make sure that you are not improperly detained. A preliminary hearing is not a full trial, it does not determine guilt or innocence. It is a test of the sufficiency of the Commonwealth’s evidence.

A Magisterial District Judge (“MDJ”)  must determine from the evidence presented by the Commonwealth, whether there is a prima facie case that (1) an offense has been committed and (2) the defendant committed the offense. Pa. R. Crim. P. 542 (D).

In order for the Commonwealth, whether by a District Attorney-intern or actual District Attorney—or in some counties a police officer, to get past a preliminary hearing, as stated above, is that there is a prima facie case that (1) an offense has been committed and (2) the defendant has committed the offense. Pa. R. Crim. P. 542 (D).

Simply put, all the Commonwealth must prove is whether more likely than not: (1) a crime occurred and (2) the alleged defendant committed the crime, and all or some the charges that survive the preliminary hearing will be Held for Court (HFC), which means that the charges remaining will continue forward to the Court of Common Pleas and a date will be set for formal arraignment. Depending on what the alleged offender would like to accomplish, the case will either go to trial, plea, plea and be sentenced to some type of sentence alternative, or may even be dismissed with a Habeas Corpus or evidence suppressed with a Suppression hearing and dismissed. What happens after a preliminary hearing depends on the facts of the case, evidence gathered (discovery) the alleged defendants prior record, if any, and the rapport with the Police Officers involved and District Attorney. Also, in what county the alleged crime occurred will can also determine the outcome of the case because some counties are more stringent than others.

Under Pennsylvania’s Rule of Criminal Procedure, the alleged offender has: “a right to an attorney; cross-examine witnesses and inspect physical evidence offered against the defendant; call witnesses on the defendant’s behalf, other than witnesses to the defendant’s good reputation only; offer evidence on the defendant’s own behalf, and testify; and make written notes of the proceedings, or have counsel do so, or make a stenographic, mechanical, or electronic record of the proceedings”. See Pa. R. Crim. P. 542.

Witnesses can be used to negate the Commonwealth’s evidence, not to discover the Commonwealth’s case, and credibility is not an issue for a preliminary hearing since the preliminary hearing is not a full trial, not about guilty or innocence, it is only about the prima facie case, whether: (1) a crime occurred and (2) the alleged defendant committed the crime.

Hearsay can be used at the preliminary hearing.

Hearsay is an out of court statement, not under oath, offered to prove the truth of the matter asserted. The statement can oral, written, or non-verbal as long as the one who made the statement intends it as an assertion. See Pa.R.E. 801.

Hearsay is allowed to establish a prima facie case. “Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.” Pa. R. Crim. P. 542 (E). However, a prima facie case, at a preliminary hearing cannot be used as the sole basis for establishing a prima facie case. Cited in the comments of Rule 542 is “Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (Pa. 1990) (plurality) (disapproving reliance on hearsay testimony as the sole basis for establishing a prima facie case).” Moreover, an alleged defendant does have the right to confront witnesses and inspect evidence at a preliminary hearing, whether this affects the outcome of the case depends on the MDJ.

Most MDJ’S and Common Plea Judges will most likely state that the Confrontation Clauses—Sixth Amendment and Pennsylvania Constitution Article I, Section 9—are for trial, however, in dicta, not binding, but persuasive, the US Supreme Court stated otherwise in Pugh. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975),

Under the Sixth Amendment of the United States Constitution

“Rights of the accused.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

USCS Const. Amend. 6.

Under Pennsylvania’s Constitution:

“§ 9.  Rights of accused in criminal prosecutions.

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.

Pa. Const. Art. I, § 9.”

Several things happen at a preliminary hearing either: charges are dismissed at the hearing; charges are withdrawn per agreement; stipulating to the Commonwealth’s evidence to withdraw charges and preserve a Habeas Corpus motion, or the alleged defendant waives his right to a preliminary hearing, possibly to withdraw charges and/or for a sentence alternative—ARD, Drug Court, Behavioral Health Court, etc.

It must also be noted that most counties require the defendant waive their preliminary hearing in order to get into sentence alternative programs, and for pleas. When one does not want to fight, or not go to trial, District Attorneys usually favor waiver.

No matter you remember of this blog, remember: (1) a preliminary hearings prima facie burden is easy to meet; (2) hearsay evidence cannot be used solely to prove the prima facie case; and (3) most importantly a preliminary hearing is an invaluable tool to learn what the Commonwealth case is all about.

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