Preliminary Hearings

After police file criminal charges against someone, the first critical stage of the proceedings against them is a preliminary hearing before a magisterial district judge. In Lancaster County, there are two types of cases that have preliminary hearings in specialized central courts—domestic violence and driving under the influence—those central courts will be discussed in a separate blog. The defendant’s decisions on the day of the preliminary hearing can profoundly affect the trajectory of their case going forward, and those decisions should be guided by a skilled, diligent, and experienced lawyer.

What is a preliminary hearing?

A preliminary hearing is the first time the police case against a defendant faces judicial scrutiny. The Commonwealth has the burden of proving that a crime happened and that the defendant was involved to a prima facie level. Prima facie is a term of art meaning that the prosecutor can provide some evidence to support every element of the crime and the defendant’s identity.

Credibility, or believability, is not an issue at preliminary hearings. The magisterial district judge should not decide whether the Commonwealth’s witnesses are worthy of belief. He or she must take the Commonwealth’s testimony and evidence as true. He or she must also grant the Commonwealth the benefit of any reasonable inferences based on the testimony and evidence.

Affirmative Defense

Affirmative defenses are irrelevant at a preliminary hearing. The preliminary hearing is a test of whether the Commonwealth has enough evidence to go to trial. It is not a trial. Affirmative defenses necessarily concede that potentially criminal actions happened, but they present an exception from criminal liability. Whether the defense can prove an affirmative defense, therefore, is an issue for trial. Because the focus of the preliminary hearing is the Commonwealth’s evidence, evidence supporting the potential application of affirmative defenses is usually inadmissible.

The rules of evidence do not apply as strictly at a preliminary hearing as they would at trial. The Rules of Criminal Procedure allow the Commonwealth to, for example, use hearsay to prove certain parts of a case. This means that the Commonwealth can use testimony that it could not use at trial to get a case through the preliminary hearing.

What are a defendant’s options at a preliminary hearing?

Generally, a defendant has two options at preliminary hearings. He can opt to waive his hearing or he can decline to waive the hearing.

If a defendant waives his preliminary hearing, he concedes that there is enough evidence for the case to proceed to trial. He is not found guilty and he has not committed to pleading guilty at a later date. The magisterial district court will send the case to the Court of Common Pleas for the defense to obtain discovery, litigate pretrial motions, and dispose of the case in one way or another.

Prima Facie

If a defendant opts to have a preliminary hearing, the Commonwealth will attempt to prove its prima facie case. It will call witnesses and present evidence. The defendant or his attorney has the right to examine the evidence and cross-examine the Commonwealth’s witnesses. The defense has the right to present evidence if it wants to, but it does not have to. If the Commonwealth succeeds, the magisterial district court will send the charges to the Court of Common Pleas as described above. If the Commonwealth does not prove its case, the magisterial district court will dismiss the case.

In limited circumstances, a defendant can enter a guilty plea to the charges before a magisterial district court. Such cases are the exception and not the rule, though.

What happens if the defendant wins the preliminary hearing?

If the Commonwealth does not meet its burden, the magisterial district court dismisses the case. But that does not mean the Commonwealth’s efforts to prosecute are over. The Commonwealth may refile the charges against the defendant. Because jeopardy attaches at trial, the Double Jeopardy Clause does not prohibit the Commonwealth from refiling charges that a magisterial district court dismissed. If that happens, the police could rearrest the defendant, bail would be reassessed, and a new preliminary hearing would be ordered.

Why is a preliminary hearing important to the defense?

Preliminary hearings are valuable to the defense for a number of reasons. A defendant might use the hearing to preview the Commonwealth’s discovery—materials that it would not get until the Commonwealth provides discovery weeks down the road. A defendant might use a preliminary hearing to secure sworn testimony from certain witnesses, and that testimony could be useful at trial as, for example, prior sworn statements for impeachment. A defendant could use the preliminary hearing to find cracks in the Commonwealth’s case to exploit either at that hearing or later. Whether those purposes suit any particular case, however, is a case and fact sensitive decision that a defendant and his lawyer should carefully consider; there is no one-size-fits-all answer.

Preparing for Preliminary Hearings

There are numerous strategic and tactical decisions that a defendant should weigh when he or she decides what to do at a preliminary hearing. The best way to navigate that maze is to have an experienced and skilled defense attorney by the defendant’s side to assess his or her strategic goals. If you or a loved one is facing criminal charges, you need experienced and diligent representation. Call 717.299.7342 to schedule a consultation with Dan Bardo.