What Is a Preliminary Hearing?
A preliminary hearing is a court proceeding held by a judge soon after an arrest, in which the court decides whether there is enough evidence to hold the defendant over for trial. A preliminary hearing occurs in felony and misdemeanor cases. In felony cases, preliminary hearings are scheduled after the arraignment (the initial court appearance where the defendant is informed of the charges against him) and after a preliminary plea is entered. In misdemeanor (aka "general") cases, hearings are scheduled after an infraction plea is entered and before the arraignment. If the evidence does not justify holding the defendant for trial, the case may be dismissed and the defendant freed . If there appears to be enough evidence, the case will be filed for trial. If key evidence is missing, the judge can dismiss the case with leave to refile the charges at a later date. However, if the preliminary hearing reveals that you do have a defense to the charges, then you should assert that defense at this point in time. And if the offense should be reduced, or dismissed completely, then your attorney may want to bring that up at the preliminary hearing. In many situations, the prosecutor, defendant and defense attorney may choose to have the preliminary hearing date continued.
The Purpose of a Preliminary Hearing
The purpose of most preliminary hearings is for the judge to make a determination whether there is probable cause to believe that the defendant committed the crime. In other words, is there is some evidence that a reasonable person would rely upon to believe the defendant, did, in fact, commit the crime that he is charged with. However, a preliminary hearing – even where the facts are not in dispute – can be an opportunity for both sides to get a preview of what lies ahead. In many cases, this is when the prosecution lays out its evidence for the first time and the defense has an opportunity to see if it can challenge or poke holes in that story. This could also be the first opportunity that the defendant has had to begin working on a plea deal – and the determination at preliminary hearings could be used to attempt to force the judge to bar that plea deal or eliminate options at future proceedings if the defense was caught off guard. Also, the preliminary hearing provides the prosecution with an opportunity to get defense witnesses on record. Getting witnesses on record as testifying on behalf of the defendant at the preliminary phase of the case may make them afraid to testify for the defense at trial for fear of incriminating themselves.
Whether the case moves forward to trial or the defendant reaches a plea deal with the prosecution, one thing is for sure – a defense attorney’s job is far from over.
Individuals Involved in a Preliminary Hearing
A preliminary hearing is an important step in the legal process, particularly in felony cases. In order to understand what will happen at the hearing, it is helpful to know who will be involved and their respective roles.
The Judge
The judge presiding over the preliminary hearing is responsible for determining whether there is sufficient evidence to justify holding the accused for trial. This is usually a district court judge. While court rules allow the judge to be a magistrate, it is generally a district court judge. The presence of a district court judge at the preliminary hearing will alleviate the magistrate’s responsibility, which is discussed below.
The Judge’s Role
The judge’s primary obligation is to protect the accused. The Commonwealth must present evidence and may request that the accused be held for trial. To do so, evidence must be presented that establishes a prima facie (minimal level of proof) case against the accused. A good judge will make sure that any evidence presented by the Commonwealth passes this threshold.
The judge will also be responsible for making sure that the rights of the accused are not violated.
In addition to ensuring that the rights of the accused are protected and that the Commonwealth has presented sufficient evidence, the judge will determine when the hearing will be held, and, for most individuals, secure the accused’s attendance at the preliminary hearing.
In some cases, the judge will make recommendations on bail. However, the magistrate may still recommend bail, which the judge ultimately approves. The magistrate’s recommendation will remain part of the record just like the judge’s recommendation will become part of the record.
Finally, the judge will schedule the case to return to a court, usually the one that arraigns the accused. The arraignment will occur about one week after the preliminary hearing.
The District Attorney
The district attorney represents the Commonwealth of Pennsylvania, and will be responsible for presenting evidence at the preliminary hearing.
The District Attorney’s Role
Most cases do not require the district attorney’s presence at a preliminary hearing. The district attorney usually participates by supervising the district magistrate, who may participate.
While most cases are handled at the district magistrate’s level, the district attorney will be involved the few cases that are not. Even with many felony cases occurring at the district magistrate’s level, the district attorney is not required to appear at the preliminary hearing. The following discussion addresses those cases that do require the district attorney to present evidence at the preliminary hearing.
The district attorney will have attorneys included in his or her staff prepare the case for the preliminary hearing. These attorneys will include a high ranking attorney who will supervise the case preparation and presentation.
The district attorney may appear at the preliminary hearing, but is not required to do so. The district attorney is also represented at the preliminary hearing by the district magistrate. The district magistrate is a district court appointee, in addition to a Magisterial District Judge who must meet certain qualifications.
While the district attorney may attend the preliminary hearing, in virtually all cases he or she will not. However, there are cases where the district attorney will appear. One area in which the district attorney will be involved is drug cases.
The Attorney For The Accused
The attorney for the accused prepares and presents a case for the accused at the preliminary hearing.
The attorney for the accused will:
An attorney who is not experienced with criminal cases may use these tactics. However, these approaches are not reliable or even common, when compared to using a thorough understanding of the relevant law and skill in questioning witnesses.
The testing effectiveness of the witness is an example of a substitute for cross-examination. These substitutes are ineffective because the examiner is frequently not available, and the questions are rarely effective.
By delaying the hearing, your attorney can sometimes convince the district magistrate to lower bail. Many attorneys attempt to achieve this. However, requesting a lower bail can result in having a higher bail being imposed.
One of the most important aspects of having an attorney represent you is the comfort that is achieved by knowing that your case is being handled appropriately.
How Does a Preliminary Hearing Differ from a Trial?
Whereas a trial is the final disposition of the case in which witnesses are called to testify in open court, and they are subject to cross-examination by whoever retained them to testify for their side, there is no jury trial for a preliminary hearing. Strictly speaking, they are held on the authority of the judge. The judge listens to the evidence, and makes a decision whether or not there is enough evidence to charge the defendant with a crime. Often, if the defendant agrees the evidence is sufficient to bind him over to the grand jury, the charges go to the grand jury anyway. The defendant may waive his right to challenge the evidence at a preliminary hearing, and have the charges go directly to the grand jury.
Again, a preliminary hearing, by definition, is not a trial. It is a judicial proceeding conducted by a magistrate, with many features similar to a district court criminal proceeding. At a preliminary hearing, testimony may be given under oath, and documentary evidence may be introduced as part of the record. Both sides may present evidence and cross-examine witnesses. Evidence may be offered by the state on an audio or video tape used instead of live testimony.
The defendant’s attorney has the right to examine the evidence for the purpose of determining if the state has met the burden of proof. The term "burden of proof" refers to the necessity that a burden of proof rests on whoever seeks some change in the status quo. For example, the burden of proof is on the prosecutor to establish the defendant’s guilt, and prove the charges beyond a reasonable doubt. In a civil proceeding, the burden of proof is usually "preponderance of the evidence", meaning that the greater weight of the evidence makes it more likely than not that the proposition is true. To meet the burden of proof for a preliminary hearing, the prosecutor only needs probably cause that a crime was committed, not proof beyond a reasonable doubt. If the state meets its burden of proof at preliminary hearing, the case continues toward trial. Note that the defendant can still challenge the state’s evidence later in U.S. District Court.
In many states, a defendant has the right to a preliminary hearing when he is charged with a felony offense, but only if the offense charged is a felony. A preliminary hearing must be held within thirty days of the initial bond hearing. Sometimes the preliminary hearing is held at the same time as the initial hearing.
What Happens During a Preliminary Hearing?
Suppose that the judge determines that a defendant has waived his right to preliminary hearing and there is sufficient evidence that the defendant committed the crime. In that case, the defendant must be bound over for trial and you will have been successful in representing your client during the preliminary hearing. Suppose that the judge does not bind the case and refuses to send the defendant to trial. The Commonwealth cannot appeal this ruling, and charges against your client will have been dismissed. However, charges against a defendant can be amended without the necessity of holding a preliminary hearing. Consequently, a defendant can be sent to trial later after the Commonwealth files an amended complaint that corrects deficiencies in the original charges. If charges are amended, the preliminary hearing will be held.
The burden of proof at a preliminary hearing is on the district attorney. He has to show that the crime charged was committed and that the defendant committed it. If the district attorney cannot show that either of these facts are true, the charges may be dismissed. If he is successful, the charges are bound over for trial in a court of common pleas.
The case is bound over for trial if the defendant is not held for any reason. A private criminal complaint that was originally filed by a private citizen may be withdrawn by the complainant. The status of the case will be "pending" in a court of common pleas. A criminal case against a defendant who has not yet been arrested will not be bound over for trial.
Charges will be held for court if the judge determines that the crime charged was committed and that the defendant committed it or charges are not held for court and the defendant is later charged with the same crime as a result of an amended complaint. Some charges will be held for court and charges in a case that arise out of the same incident are not. The court of common pleas will determine if the parties should be tried together. Other charges that may be severed are minor criminal charges such as harassment. If the charges were brought by a private citizen , the private criminal complaint would have to be amended in order to add charges to the original set.
A criminal complaint that the district attorney amends does not have to be denied by the judge before the amended complaint can be filed. However, a private criminal complaint must be denied by a judge before an amended complaint can be filed. Once the Commonwealth files the criminal complaint with the court of common pleas, the case is part of the common pleas court record. The defendant should make sure that court papers are going to meet his or her needs or be returned using appropriate legal remedies which may include a motion to quash the complaint.
If the additional charge is severed, the district attorney can try the defendant separately later on the severed charges. If a released defendant does win a preliminary hearing, he will continue his release. If the defendant also posted bail, he will receive the bond money from the clerk of courts after presenting proof that he was not arrested on the charges for which the bail was posted.
A preliminary hearing is the first step in a criminal proceeding. A preliminary hearing will almost always be held after a suspect is arrested when the defendant is not released on his own recognizance or a written authorization from the District Attorney’s office is not obtained permitting the defendant to waive his right to a preliminary hearing in a simple assault or summary offense case. However, defendants who are charged with complex criminal offenses may waive their right to a preliminary hearing especially when they feel that the charge or charges are based on weak evidence and can be defeated at trial.
What Rights Do the Accused Have During a Preliminary Hearing?
The accused has certain rights during a preliminary hearing. Just because individuals give up these rights during a preliminary hearing, does not mean that they forever relinquish them. In fact, the right to a full trial is something that cannot be waved so easily, as it requires a conscious and voluntary waiver.
The right to confront and cross-examine witnesses is an important one. At a preliminary hearing, the accused does have the right to confront witnesses against him and cross-examine those witnesses. The Sixth Amendment protects this right and the accused must be given the opportunity to cross-examine witnesses who appear against him at a preliminary hearing.
Unlike the full trial, the rules of evidence and hearsay do apply to preliminary hearings. Hearsay is defined as an out of court statement made by a witness, in person or via deposition transcript, which is offered to prove the truth or falsity of what it asserts. Hearsay statements are usually not admissible in court at a full trial, as they may be prejudicial and misleading. However, hearsay is admissible at a preliminary hearing. Important exceptions to hearsay include police reports, videotape dat tapes from surveillance cameras, and other reliable forms of hearsay evidence that the Court may allow the Commonwealth to put into evidence to show probable cause to charge the defendant with a crime. In general, the Court does not require the Commonwealth to give the defendant any discovery (i.e., police reports, witness statements, etc.) at the preliminary hearing, but allows the defendant to confront his accuser under penalty of perjury.
What Are the Possible Outcomes of a Preliminary Hearing?
If the court finds enough probable cause to bind the case over the defendant will be bound over to Circuit Court. This is a very difficult situation as the defendant can and will be charged with the offense that is in question. There is no finding of guilt at a preliminary hearing, the court just makes a finding that there is probable cause. A person charged with a criminal offense may be arrested for that crime; however, they are not yet guilty. If the court finds there is not probable cause for the case to go to court the offense will be dismissed and the defendant will have another addition to the criminal record. The most common result of a preliminary hearing is the case being continued to a later date to determine that it is not in the interest of the defendant or in the interest of justice to require that the defendant stand trial. Although there are several outcomes possible there are only two general results. Either the court dismisses the case or the defendant is bound over to the Circuit Court to face criminal charges.
How to Prepare for a Preliminary Hearing
As soon as a defendant or his attorney is aware that a preliminary hearing is to be held, they should begin to prepare for the hearing. In some cases, a preliminary hearing is not held until many months after the arrest – in those cases, the defendant should occasionally check with their defense attorney to determine what, if anything, is going to be required of them well in advance of the preliminary hearing. In the case of a waiver, often times the paperwork related to the waiver must be forth coming before the preliminary hearing date, so, if it appears that the hearing is going to be waived, the defense attorney will need to know when they will have to inform the court and the prosecutor of such a waiver. If the client is in custody, the timing of the waiver must also coincide with the client being released from jail. In other words, if s/he waives the preliminary hearing on Monday but fails to make bail until Thursday, the waiver must be timed accordingly so that it is not accepted by the judge until the defendant is free (on bail) and can be released if he/she is still in custody. If there are witnesses that need to be called to testify on behalf of the defendant, those witnesses must be contacted well in advance of the preliminary hearing date to assure their presence. If the court date is within a week or two of the scheduled preliminary hearing date, that may be impossible, however, most often, there is a lead time of several weeks which allows the investigation team time to locate witnesses. Further, if the charges in question are charges that allow for a preliminary hearing to be held on the basis of some type of hearsay testimony (preliminary hearings based on a police report), the investigation team can begin speaking with witnesses and preparing to testify one way or the other . Finally, if a witness is going to be subpoenaed to appear in person, a subpoena should be issued to that witness with the caveat that they must appear even if the preliminary hearing is eventually waived. Failure to issue such a subpoena as early as possible could result in a witness that was once going to testify failing to appear because of a waiver or other reason. In addition to interviewing witnesses, other work must be performed, including investigating any witnesses’ previous record (to go to the question of bias), whether there are other witnesses who have not yet been contacted, whether there is documentation that is missing from the police report that needs to be gathered and/or whether experts need to be involved. Further, the investigation team should speak with the prosecutor with regard to the case to try to come to an agreement. If this is done well in advance of the preliminary hearing, there is a chance a mutually acceptable resolution can be arrived at. If the defendant is not in custody and therefore able to assist in the investigation and preparation of the defense at any time the defense attorney requests, it is often a good idea to have the defense attorney write down what they would like the investigation team to do. In addition, the defense attorney may be able to look at the case (police report) before the defendant does – in that case, they will likely be able to have their assistant place calls to experts and begin to investigate the scene, if such is warranted. If the defendant has accessed his/her case, they may also be able to engage in an independent investigation that also bears fruit.