Does a Preliminary Hearing Based Entirely on Hearsay Violate Due Process?
The Pennsylvania Superior Court has just held that constitutional due process requirements do not prevent a magistrate or Municipal Court judge from holding a defendant for court following a preliminary hearing at which the Commonwealth introduces only hearsay evidence. The issue of how much hearsay is permitted at a preliminary hearing has been heavily contested. For many years, the Commonwealth has been permitted to introduce some hearsay at a preliminary hearing. For example, where the defendant has been pulled over in a stolen car, the owner of the car is typically not required to come to court to testify that the defendant did not have permission to steal the car. However, courts have generally held that the Commonwealth may not make out its case at the preliminary hearing based on hearsay alone.
Preliminary Hearing Hearsay Litigation in the Pennsylvania Supreme Court
More recently, in Commonwealth v. Ricker, the Pennsylvania Superior Court held that it does not violate the confrontation clauses of the Pennsylvania or United States Constitutions for a defendant to be held for court and ordered to stand trial at a preliminary hearing based on hearsay alone. However, the Ricker court did not reach the issue of whether a pure hearsay preliminary hearing would violate a criminal defendant’s right to due process. Although Ricker is still on appeal in the Pennsylvania Supreme Court, the Superior Court has now addressed the due process issue, as well.
Commonwealth v. McClelland
In Commonwealth v. McClelland, a three-judge panel of the Superior Court held that it does not violate due process rights for a defendant to be held for court at a preliminary hearing based on hearsay alone. In McClelland, the defendant was charged by a Pennsylvania State Trooper with various sex offenses allegedly committed against an eight-year-old child. The charges included indecent assault, indecent exposure, and corruption of minors. The child’s parents made a complaint to the State Police, and the Police arranged for the child to be interviewed by a “specialist” from the Children’s Advocacy Center. The Trooper observed the interview and then filed charges against the defendant.
At the preliminary hearing, the prosecution did not call the complainant to testify or even play the video-taped interview. Instead, the prosecution called the State Trooper as its only witness. The Trooper testified entirely to hearsay. He testified that he personally witnessed, through video, the interview of the child. He told the magistrate what the child said in the interview, and the magisterial district justice held the case for court and ordered the defendant to stand trial.
The defendant filed a Petition for Writ of Habeas Corpus (commonly referred to as a Motion to Quash in Philadelphia) in the Court of Common Pleas asking the trial court to dismiss the charges. The defendant argued that holding the charges for court based on pure hearsay violated both the defendant’s confrontation rights and right to due process under both the Pennsylvania and United States Constitutions. The trial court denied the Petition, and the defendant filed an interlocutory appeal to the Superior Court.
The Exceptional Circumstances Doctrine for Interlocutory Appeal
A criminal defendant may not ordinarily appeal the denial of a Motion to Quash (or Petition for Writ of Habeas Corpus) prior to trial. In this case, however, the Superior Court permitted the pre-trial, interlocutory appeal under the exceptional circumstances doctrine. The exceptional circumstances doctrine permits an interlocutory appeal when the appellate court finds that appeal is warranted due to the important constitutional questions raised therein. Because the Superior Court permitted an interlocutory appeal in Ricker under similar circumstances, the court found it appropriate to address the unresolved issues from that case before trial.
The McClelland court then found that the admission of hearsay at a preliminary hearing does not violate a defendant’s right to due process. The court noted that the admissibility of hearsay at a preliminary hearing is governed by Pennsylvania Rule of Criminal Procedure 542. Rule 542(E) provides: “Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, nonpermitted use of, damage to, or value of property.” Thus, the rule explicitly applies to the stolen car example above, but it does not really suggest that an entire case of child abuse may be made out through hearsay alone.
Because Ricker already held that introducing hearsay alone at a preliminary hearing does not violate confrontation clause rights, McCllelland addressed only the issue of whether the same procedure would violate the defendant’s right to due process. The court found that there is no constitutional right to a preliminary hearing at all, and so there is essentially no right to have the preliminary hearing conducted in any particular manner. Thus, the prosecution does not violate the defendant’s right to due process by asking a police witness to testify to someone else’s statements.
Problems with Preliminary Hearings Based Entirely on Hearsay
This opinion leaves few procedural safeguards in place for a criminal defendant prior to trial. If the decision is upheld, prosecutors will essentially be able to dispense with the preliminary hearing altogether by doing little more than asking a police officer to read a police report into evidence. If the police report alleges the elements of a crime, then the defendant will be held for court and ordered to stand trial. This is problematic due to the fact that if a defendant cannot make bail, the defendant could be held in custody for years without a trial or even a live witness being required to appear for a preliminary hearing. Unfortunately, the Superior Court has simply found that there is no right to pre-trial cross examination of a complaining witness despite the fact that such cross-examination is critical both in making sure that there will ever be actual witnesses against the defendant and in developing inconsistencies which could affect the witness's credibility at trial.
Remaining Restrictions on the Use of Hearsay
The Superior Court did note some minor limitations on the use of hearsay at a preliminary hearing. First, the court suggested that its opinion should not be read to say that hearsay-within-hearsay should be freely admitted. The court noted, “[a]s an extreme application, the Commonwealth could sustain its burden by presenting the testimony of a fellow prosecutor who spoke to a police officer, who had read a report, which stated that an anonymous citizen called to report that a defendant committed a series of acts that met the material elements of some charged crime.” Apparently, that situation would present too much hearsay for the court.
Second, the Superior Court suggested that magistrates and Municipal Court judges should consider whether the offered hearsay is reliable. Of course, cross-examination is the normal method for testing whether testimony is reliable, so it is unclear exactly what the Superior Court is suggesting. Further, judges are required by law to accept the Commonwealth’s evidence as true at a preliminary hearing. Nonetheless, the court seems to suggest that defense counsel may argue that too much hearsay is simply unreliable.
Third, the court suggested in a foot note that these hearsay exceptions at the preliminary hearing should not really apply to run-of-the-mill cases involving police officer testimony. Instead, magistrates should limit cross-examination of the complainant only in cases of domestic violence, witness intimidation, and child abuse.
McClelland is unlikely to have much impact in the short term as the Pennsylvania Supreme Court has not yet ruled on the appeal in Commonwealth v. Ricker. Prior Pennsylvania Supreme Court opinions have held that prosecutions may not be based entirely on hearsay without violating due process, and the Superior Court simply cannot overrule the Supreme Court. Therefore, most prosecutors continue to call live witnesses at preliminary hearings, particularly in Philadelphia, and McClelland seems unlikely to change that fact until the Supreme Court has ruled. However, the potential impact of the decision as it stands is tremendous as the preliminary hearing is an absolutely critical opportunity for the defense to get some or all of the witnesses on the record and evaluate whether they are telling the truth. Certainly, the amount of hearsay permitted at a preliminary hearing will continue to be an issue until the Pennsylvania Supreme Court rules, and even then, the litigation will likely continue.
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