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WHAT EXACTLY IS A PRELIMINARY HEARING?

If you have been charged with a crime in Pennsylvania the first major step in the process is called a preliminary hearing. All cases (except for summary offenses)-whether a person is charged with first degree murder or shoplifting-commence with what you will often hear attorneys refer to as a "prelim." But what is it? How does it work? Why is it important?

Understanding the purpose and procedure surrounding the preliminary hearing requires some understanding of how the court system in most Pennsylvania counties works. The trial court of general jurisdiction in any county in Pennsylvania is called the Court of Common Pleas. In the criminal context, only the Court of Common Pleas can hear DUI cases, drug cases, and any other case graded higher than a third degree misdemeanor. (You can learn more about how criminal cases are "graded" in Pennsylvania here). There is only one Court of Common Pleas in any given PA county. Here in Centre County, Pennsylvania, the Court of Common Please is located in the town of Bellefonte. However, just as in all other counties throughout the Commonwealth, there are several minor courts called District Magistrates in Centre County as well. These courts are spread throughout the county and they each cover a small geographic region. In Centre County there are six such "district" courts.

Whenever a crime is committed, the police file a complaint with the district court covering the geographic area in which the offense occurred. This starts the case.

In the vast majority of criminal cases, the individual being charged with a crime or crimes will receive a summons in the mail to appear before the district court for a preliminary hearing. In certain, more serious cases, an individual may be arrested, incarcerated in lieu of bail, and then transported to the preliminary hearing by the county Sheriffs. For the most part, however, an individual will have an encounter with law enforcement-a roadside stop in a DUI case, for instance-and then several weeks after the encounter with the police they will receive a complaint in the mail charging them with criminal offenses and requiring them to appear for their preliminary hearing.

Just what is the function of a preliminary hearing? I often tell my clients that the preliminary hearing before a magisterial district judge acts as a "gatekeeper." At the prelim, the job of the district court is to determine whether the evidence set forth in the complaint drafted by the police officer who is charging you with a crime (called the "affiant") is sufficient for the case to move forward. In order to make this determination, the district judge must decide two specific things:

  1. Whether the evidence presented at the preliminary hearing is sufficient to form probable cause to believe a crime was committed, and;
  2. Whether the evidence presented at the preliminary hearing is sufficient to form probable cause to believe that the person charged committed the crime.

In all criminal cases, the attorneys for the Commonwealth of Pennsylvania-usually an assistant district attorney with the county District Attorney's office-bear the "burden" of demonstrating that a crime was committed and that the individual charged committed the crime. This means that it is their job to put on evidence to prove these two things to the district judge. For this reason, I often tell my clients that a preliminary hearing can feel very much like a trial. If a hearing is held (I'll get to that a little later), the Assistant District Attorney will call witnesses to put on evidence. Witnesses are sworn, and testimony is taken. You have a right to counsel at a preliminary hearing and to have your counsel cross examine these witnesses. There may also be physical evidence presented at the prelim. Under Pennsylvania law, you have a right to inspect this physical evidence. You also have a right to call witnesses on your own behalf and to testify on your own behalf (though as a rule, defendants never testify at thre prelim). The court will hear argument following the close of evidence prior to making a determination. For all these reasons, a preliminary hearing can feel very much like a trial. However, is very important to remember that there are some major differences.

Firstly, and most importantly, the goal of a preliminary hearing is not to determine guilt or innocence. The goal, as I said earlier, is to determine 1) whether or not the evidence presented is sufficient to show that a crime was committed, and; 2) whether the evidence presented is sufficient to show that the person charged more likely than not committed the crime. This is vastly different than the "reasonable doubt" standard used to determine guilt or innocence at trial. The purpose is merely to show a Magisterial District Judge that there is enough evidence to support each of the elements of the offense charged and that the case should move forward.

Secondly, there are very relaxed evidentiary rules at a preliminary hearing: "Hearsay" is allowed to come into evidence. The Commonwealth can introduce documents (such as autopsy reports) even if the author of the report is not available to testify. It is perfectly acceptable for police officers to testify to what witnesses told them, something that would not be permitted ordinarily at trial. Additionally, the judge cannot make credibility determinations at a preliminary hearing, meaning that if a witness for the prosecution testifies "the light was red" and a witness for the defense testifies "the light was green", the judge at a preliminary hearing cannot decide who to believe and who not to believe, i.e. who is credible and who is not. In that example, if it was relevant for the prosecution to demonstrate that the light was red and an eyewitness for the prosecution testified the light was red, the judge would have heard sufficient evidence to show that the light was red even if a defense witness testified otherwise. Issues of credibility-- who to believe and who not to believe-- are to be decided at trial.

If after a preliminary hearing, the Magisterial District Judge determines that the evidence presented by the prosecution is sufficient to show that a crime was committed and that the defendant committed the crime, the case is then "bound over" for trial. This means that the judge at the prelim, acting as a gatekeeper, has determined that there is enough evidence for the case to move forward. If the determination is made to bind the case over for trial, paperwork called a "criminal information" is filed with the Court of Common Pleas in that county charging the defendant with the crimes that were bound over. The defendant will then be arraigned in the Court of Common Pleas and the case will move forward towards trial or other resolution.

From a strategic standpoint, the Preliminary Hearing is a very important event for the defense. It is typically your attorney's first opportunity to meet with police and prosecutors to discuss your case and get a better understanding of what the prosecution is thinking in terms of resolving a case. In many cases, an experienced criminal defense attorney can work out a plea agreement at the preliminary hearing that is very favorable. In other cases where the charges are serious and no deal is likely, or where the evidence is very favorable to the defense, an experienced criminal defense attorney can get some or all of the charges dropped by the court following a hearing by demonstrating that the prosecution lacks sufficient evidence. Deciding how to advise a client at the preliminary hearing takes experience and a thorough understanding applicalbe law as well as the strengths and weaknesses of the case as presented in the complaint.

To Waive or not to Waive


In many cases, people will chose not to move forward with an actual hearing on the date of the prelim. Often, people are appearing at preliminary hearing on their first ever criminal charges and will likely be eligible for programs such as Accelerated Rehabilitative Disposition (ARD). In other cases, your attorney may be able to work out a favorable plea recommendation at the prelim. In those cases, the Commonwealth will require you to "waive" the hearing. Waiving the preliminary hearing means that you are acknowledging that the evidence is sufficient to demonstrate that a crime was committed and that you committed it. As you can imagine, this is often the case in DUI's or drug possession cases. I.e., a police officer will testify that they pulled you over, that you were the one driving the car, and that preliminary results showed that your blood alcohol was 0.145%. In such a case, the evidence is absolutely sufficient to bind the case over for trial (however, as discussed earlier, it does not mean that you are guilty. Just that there is enough evidence for the case to move forward). Accordingly, from a strategic standpoint, it may not be wise to move forward with an actual preliminary hearing if the prosecutor thinks your case is suitable for ARD. Why? Because invariably, the prosecutor's position is this: "If you hold a preliminary hearing and make me call witnesses, you are not accepting responsibility and you are trying to fight the case. Fighting the case is inconsistent with plea negotiations. Therefore, if you hold the preliminary hearing, we will not accept your case for ARD and we will pull all deals off the table." Is this a scare tactic? Sure. But is it wise to play chicken with the prosecutors in certain cases? Absolutely not. If your case is suitable for ARD or the prosecution has offered a very favorable agreement, it would be foolish to hold a preliminary hearing and close doors that should be left open, particularly in cases where the defense does not have much to work with.

On the other hand, in certain cases a preliminary hearing is an absolute necessity. Where no plea would be acceptable to the client, where the client maintains that they have been wrongly accused, or where the charges are so significant that any outcome is a bad outcome, fighting the case aggressively from the very outset is often the best approach.

Only an experienced criminal defense attorney can advise you on how to proceed at a preliminary hearing. At Rehmeyer & Allatt, we have represented countless clients at preliminary hearings on charges ranging from minor offenses to major felonies. Every case requires careful attention, planning and strategizing. If you have been charged with an offense and are scheduled for a preliminary hearing, we invite you to contact the law offices of Rehmeyer & Allatt at the earliest available opportunity so we can begin to prepare.

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