WHAT IS A PRELIMINARY HEARING?


 

So you or someone you know has been charged with a crime in Pennsylvania.  You’ll notice that your first major event is a preliminary hearing which is usually held in front of a district judge or magistrate.  This could be and often is the single most important event in any criminal case except for a possible jury trial.

 

Many defendants assume that the preliminary hearing is just that, a preliminary matter which can be waived or managed without the assistance of counsel.  We have seen this mistake repeated to the client’s detriment many, many times.  The best advice is to always have an attorney represent you at your preliminary hearing and never waive your preliminary hearing unless your attorney advises you to do so.

 

A  preliminary hearing is a hearing designed to determine whether or not the government has enough evidence to “hold your case for court”.  Basically the government must come forward with sufficient witnesses and information to convince a neutral judge that there is some evidence a crime occurred and there is some evidence linking you to that crime.  If not the case, or at least the charge(s) not so proven, is supposed to be dismissed.

 

If you waive your preliminary hearing you will never force the government to come forward with this evidence, and you will never get an earlier opportunity to test the same.  Additionally, having done thousands of these hearings over the years I can tell you that the transcripts that they produce are often very valuable both in winning trials later in a case, and in negotiating guilty pleas with district attorneys.  That’s not even to mention the fact that the charges are often dismissed after a preliminary hearing because the government is unable to come forward with sufficient evidence.

 

I think that this concept is lost on many defendants.  Just because a police officer has sworn out an affidavit saying that there is “probable cause” to arrest you and charge you, that does not mean that those same facts or information will translate into court at the time of a preliminary hearing.  So just because the police affidavit makes you sound guilty (and that’s how they write them) it doesn’t mean that same evidence will come to light in a preliminary hearing.  When that happens some or all of the charges can be dismissed.

 

Additionally, witnesses often lock themselves into various statements and stories at a well conducted preliminary hearing.  By a well conducted preliminary hearing I mean one where a skilled attorney cross-examines the government’s witnesses against you and employs the services of a court reporter.  If your attorney appears at a preliminary hearing without a court reporter you should question why.  That’s not to say there aren’t times when we don’t bring a court reporter, and that’s a perfectly valid way to conduct a preliminary hearing if you’re not intending to take testimony.  I make it a policy to bring a court reporter even when I’m not planning on taking testimony so that in the event the hearing does happen we can record and lock each witness into their exact statement.

 

Why is that so important?  Later in the case when the district attorney has had time to evaluate his or her presentation, and when the witnesses have been adequately prepped for trial they may shape their testimony to fit what they believe they need to say to help the government prove their case.  Remember quite often witnesses are either outright hostile, or at least want to seem friendly to the Commonwealth.  They are not always going to tell the truth.  Additionally, they often will simply shape their recollections unconsciously to help the party they believe they need to support (which in most cases is the Commonwealth).  Further even witnesses who believe they are being helpful to you may later be very damaging in trial.

 

So by locking the witnesses into their early statements before they’ve had time to be coached, and at a time when they may not be aware of what the actual best testimony is in a light most favorable to the Commonwealth, we can lock them into a story and/or series of facts which you may be later able to disprove.  This is how we generate reasonable doubt in some cases.  Additionally, the witness may change his or her statement and recall details differently at trial and without a preliminary hearing transcript you cannot adequately cross examine on that.

 

Imagine you are a juror and you are listening to a defense attorney cross examine a witness and the defense attorney says “But at the time of the preliminary hearing you said the sky was blue, now today you’re saying it was red.”  And the witness reports “No.  That’s not what I said at the preliminary hearing.  I said it’s red.”  But the defense attorney has to simply argue with the witness and then sit back down.  The jury is not likely to be impressed, and the jury thinking that the defense attorney represents the defendant may think perhaps the defense attorney is the one coloring the testimony so to speak.

 

Now imaging the defense attorney confronts the witness with his earlier statement and walks him through the fact that he was under oath on a previous date at a previous time and shows him Lines 12 and 13 of Page 22 of the transcript where he previously said the sky is red and then asks the witness to explain why he’s changing his testimony.  I think you can see how that transcript changes the possible outcome of the jury trial.

 

At the preliminary hearing in Pennsylvania, if your lawyer has prepared adequately they will do one of several things.  Either waive your hearing in exchange for some benefits, or take the hearing and require the Commonwealth to prove their case on a prima facie basis.  That prima facie basis is basically that there was a crime committed and then you could be the person who committed it.  It is not a trial about your guilt or innocence.  This is a common mistake for many defendants, who believe that the preliminary hearing is an opportunity to be found not guilty.  At bestthe case is dismissed, but jeopardy does not attach, so the charges can come back.

 

If your attorney chooses to waive the hearing he or she will waive it based upon the fact that the government has offered something in exchange for a waiver.  The number one thing traded in exchange for a waiver is often bail.  If the person is in jail on $50,000.00 and is unable to post, often the hearing can be waived and the bail could be lowered to a more affordable amount such as $5,000.00 or even released on your own recognizance.  While this is not preferable, offering to free a defendant from jail can be a great benefit, as they can now further assist in the preparation of a case, are more accessible to the attorney, and frankly may end up spending more time in jail if they are unable to bail themselves that the charge would carry even if they are found guilty.

 

At a preliminary hearing the witnesses are sworn just like they would be in a trial and the judge takes the testimony of each witness.  However the areas that are relevant are much more limited than would be in a full blown jury trial, as ancillary issues such as constitutional matters, as well as matters like self defense are not in issue at a preliminary hearing.  All that is at issue is whether or not that magical prima facie case can be established for purposes of binding the case over.  Keep in mind that is a very low standard because this hearing is just designed to protect people against being detained when there are absolutely no basis to believe that they are guilty of anything.

 

So in summation, the most important hearing in Pennsylvania is often the first hearing, the preliminary hearing. Waiting until after a prelim in Pennsylvania to get a lawyer is a common, and easily preventable mistake.

 

 

 

-Karl Rominger