What is a preliminary hearing? What happens after a preliminary hearing?

Preliminary Hearings

The Philadelphia criminal defense lawyers of Goldstein Mehta LLC represent clients who are facing all types of criminal charges in Pennsylvania and New Jersey. Our attorneys have a proven track record of successfully defending our clients in in criminal cases in jurisdictions throughout Pennsylvania and New Jersey. In Pennsylvania state court cases, our efforts on behalf of our clients often begin with the preliminary hearing.

This critical hearing occurs after preliminary arraignment, and it is the first substantive hearing in the criminal justice process. We have successfully represented clients in thousands of these important hearings. In many cases, we have been able to have some or all of the charges dismissed at this initial stage in the proceedings. Even in matters where the case proceeds to the Court of Common Pleas, we are often able to use our cross examination skills to obtain testimony which will be useful in defending the case at later proceedings such as a motion to suppress or trial. This article explains both what happens at a preliminary hearing and what will happen if a case is "held for court" following testimony and argument. If you are facing criminal charges, call 267-225-2545 to speak with one of our defense attorneys. We offer a free, 15-minute criminal defense strategy session.

What is a preliminary hearing?

Philadelphia criminal defense lawyer Zak T. Goldstein, Esq. explains what happens at a preliminary hearing in Pennsylvania.

The preliminary hearing is an extremely important step in the criminal justice process, and our criminal attorneys have successfully moved for dismissal of some or all of the charges at countless preliminary hearings. In most cases, it is the first opportunity for our criminal defense lawyers to challenge the evidence and charges against you. Although the hearing is a critical step in the process, it can also be frustrating and confusing for the defendant because the hearing differs significantly from the trial. 

The preliminary hearing sort of looks like a trial, but it is not the actual trial. A judge, prosecutor, defense attorney, court reporter, and court clerk are all likely to be there, making it look like a trial. However, despite the appearance of a trial, it is not the same thing. Instead, the hearing (sometimes called a probable cause hearing) is a relatively brief court appearance in which a Philadelphia Municipal Court judge or suburban Magisterial District Justice, depending on the venue of the case, will usually hear from one or two of the main Commonwealth witnesses in order to determine whether the prosecution can introduce enough evidence that the case should proceed to trial.

Under the current rules, which are in the process of being challenged in the Pennsylvania Supreme Court, the Commonwealth generally must put on some live testimony and typically will not proceed on hearsay alone. Even in the counties where prosecutors are more often allowed to use hearsay, the hearing still provides the defense with the opportunity to cross examine the lead detective or police officer in the case. Therefore, it is a critical step in the process because it provides the first chance for our defense attorneys to challenge the charges against you.

The Burden of Proof at a Preliminary Hearing

The prosecutor or affiant (main police officer) must produce enough evidence to prove a prima facie case for each charge. This standard requires the District Attorney to prove that it is more likely than not that a crime was committed and that the defendant did it. The prosecutor will try to do this by calling witnesses and presenting evidence in much the same manner as the prosecutor would at trial. The defense lawyer then has the opportunity to cross examine the witnesses. If the prosecution does not introduce enough evidence to prove a prima facie case for any given charge, then the defense may move for dismissal of that charge and that charge should be dismissed. It is important to remember that the prima facie case standard does not require the Commonwealth to prove the case beyond a reasonable doubt. Therefore, you should not assume that just because a case was held for court that you will be convicted at trial. 

Is hearsay admissible at a preliminary hearing?

Although there is a right to cross examine prosecution witnesses and present defense witnesses at a preliminary hearing, the rules are very different. For example, the rules of evidence do not apply with the same force as they do at trial. The evidence rules are much more loosely enforced, and it is clear under Pennsylvania law that at least some hearsay is permitted at the hearing pursuant to Pennsylvania Rule of Criminal Procedure 542(E). That rule 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, non-permitted use of, damage to, or value of property.”

The Supreme Court has held that the Commonwealth may not prove the charges against the defendant solely through the use of hearsay without violating a defendant's right to due process under the Pennsylvania Constitution, but a recent Superior Court opinion in Commonwealth v. Ricker called that holding into question. Although the Superior Court cannot overrule the Supreme Court, the Supreme Court refused to either affirm or overturn the Superior Court's holding in Ricker and dismissed the appeal as improvidently granted. Ricker, however, focused on whether the defendant has a confrontation clause right to cross examine the key witnesses against him or her at the preliminary hearing. It did not address whether a defendant has a due process right to a preliminary hearing at which the Commonwealth must present some non-hearsay testimony.  

Additional litigation is still ongoing in the Supreme Court in the hopes of resolving the issue. There are also proposed changes to the rules which are still being considered by the Court. Therefore, the amount of hearsay that the judge will permit the Commonwealth to introduce really depends on the judge. In some counties, many of the magistrates will let the Commonwealth proceed entirely or almost entirely on hearsay by allowing the assigned detective to testify to what the other witnesses told him or her. In Philadelphia, the judges typically require the prosecution to introduce live witness testimony from the complaining witness or actual eyewitnesses to the alleged crime. This split between the procedures in the counties and in Philadelphia will likely continue until the Pennsylvania Supreme Court decides the case of Commonwealth v. McClelland. That case is still pending on appeal.

Even in Philadelphia, the rules permit the prosecution to introduce ownership and non-permission testimony through the use of an "ONP Form" or through testimony from one of the investigating officers. For example, if the defendant is pulled over in a stolen car, the Commonwealth may proceed at the ensuing Receiving Stolen Property preliminary hearing by calling only the arresting officers to testify. The Commonwealth is not required to produce the owner of the car to testify that that person owned the car and did not give the defendant permission to drive it. This is a relatively limited exception to the rule against hearsay, and at trial, the Commonwealth must still call the owner of the car to testify that the car was stolen. 

Additionally, because of the relatively brief nature of the hearing and its limited scope, cross examination is much more limited than it would be at trial. For example, when it becomes clear that the defense is really seeking to establish the grounds for a motion to suppress, the judge will likely rein in the questioning because the motion to suppress cannot be litigated until later. Whether the police illegally stopped and searched the defendant is not relevant to whether the defendant committed a crime. Instead, that issue must typically be litigated at the motion to suppress hearing. However, in many cases, it is possible to ask some questions of the officers about the reasons for the stop which could be helpful for the motion if the case makes it to the Court of Common Pleas. The extent to which the judge will allow defense counsel to explore the reasons for the search or the stop varies from judge to judge.

Finally, the defense may not argue that the case should be dismissed because witnesses are lying. Credibility is not an issue at a preliminary hearing. Instead, the judge is instructed by law to accept the testimony of Commonwealth witnesses as true because the judge is simply evaluating whether there is enough evidence for the Commonwealth to proceed to trial. The judge is not permitted to make a credibility decision as to whether the witnesses are telling the truth or the Commonwealth will win at trial. Nonetheless, there are many defenses which can still be argued and may result in the dismissal of charges. Finally, in some cases in which a video directly contradicts an eyewitness, the judge may be willing to consider credibility arguments.

Defenses at a Preliminary Hearing

Zak T. Goldstein, Esq. - Criminal Defense Lawyer in Philadelphia

Zak T. Goldstein, Esq. - Criminal Defense Lawyer in Philadelphia

Despite the fact that many of the differences between a preliminary hearing and a trial favor the prosecution, these hearings are still a critical stage in the criminal justice process for the defense. The defense may not argue that a witness is lying, but the defense may argue that the case should be dismissed for legal reasons. For example, a case could be dismissed or charges could be downgraded if the prosecutor fails to establish all of the elements of the statute in question. In a case involving Possession with the Intent to Deliver charges, it could be possible to argue that the felony charge should be dismissed if the police failed to stop any alleged buyers because the Commonwealth will not be able to prove that the defendant was actually selling drugs. Likewise, in a circumstantial case in which there were no eyewitnesses to the crime, it may be possible to argue that there is simply not enough evidence that the police got the right guy and that the court should dismiss all of the charges. Thus, the hearing is a critical tool to challenge cases in which the prosecution has overcharged the defendant or in which the evidence is circumstantial and weak.

Finally, the defense has the right to present evidence or witnesses, but it is very uncommon for the defense to do so. It is usually better to wait and see what the evidence looks like before presenting potential defense witnesses. This is because the defense typically will not have access to the discovery until the case reaches the Court of Common Pleas. 

Following the testimony, the defense attorney and prosecutor may make argument about whether the charges should be dismissed or whether the defendant should be held for court. It is very common for prosecutors to overcharge defendants, particularly in cases where the defendant has been arrested before. Therefore, we are often able to have some charges or even entire cases dismissed at the preliminary hearing.

Bail Motions at the Preliminary Hearing

If the defendant has not been able to make bail, then our criminal defense attorneys may make a motion for a bail reduction at the preliminary hearing. This motion may be made regardless of whether the case gets continued or the charges get held for court, and judges are often inclined to reduce bail when the Commonwealth requests a continuance. Other cases may also be dismissed at the preliminary level because witnesses fail to appear. In Philadelphia, the Commonwealth typically has three listings to get ready for the hearing. If the Commonwealth is not ready after three listings, most judges will dismiss the case. If the court dismisses the case, then the defendant should be released the same day if there is nothing else holding him or her in custody. The Commonwealth may, however, re-file the case and proceed even after a case has been dismissed, and in some cases, the Commonwealth may obtain an arrest warrant for their witnesses so that the police can bring the witnesses to court by force. There are limits on the prosecution’s ability to endlessly re-file cases at this lower level, but it is clear that the Commonwealth can re-file at least once and sometimes twice.

How many times can the prosecution re-file charges in Pennsylvania?

Although the Commonwealth may re-file the charges following dismissal, the Commonwealth’s ability to re-file has limits. Pennsylvania appellate courts have held that where the charges are repeatedly dismissed by the magistrate or Municipal Court judge, the successive re-filing of the charges could eventually reach the point of prosecutorial harassment. If the re-filing of the charges reaches the level of prosecutorial harassment, then the prosecutor’s decision could begin to impact the defendant’s right to due process. This type of due process violation can be used to move for the dismissal of the charges with prejudice - meaning the Commonwealth cannot re-file them. The prosecution would then be required to appeal the dismissal of the charges to the Pennsylvania Superior Court (or initially the Court of Common Pleas in Philadelphia), and the Superior Court would be responsible for determining whether prosecutors actually made out their case or whether the charges should be dismissed forever.

Success at the Preliminary Hearing Level

Although it may not seem like it at the time, some of the most successful hearings for the defense are hearings in which none of the charges are fully dismissed. This is because even if the charges do not get dismissed at the hearing, some of the main witnesses may have testified at the hearing and said things which can be extremely useful later in the process. For example, the police officer may testify to something which can be helpful at a later motion to suppress the physical evidence, or the complainant may say something wildly different from what the complainant said in a statement to detectives. Many of our winning motion to suppress and trial strategies are built through effective cross examination at the preliminary hearing even in cases where the charges are held for court. Further, even a slight change in gradation from an F1 felony to an F2 felony can make an enormous difference as the case proceeds as F1 felonies may carry significant mandatory minimum sentences that no longer exist for F2s. Therefore, the preliminary hearing is an extremely important step in the process.

What happens if the case is held for court at the preliminary hearing?

If the judge who hears the case finds that the Commonwealth has met its burden, then the judge will hold the defendant for court. This does not mean that the defendant is taken into custody. It simply means that the Commonwealth has met the relatively low burden that it must meet and that the case may proceed to the Court of Common Pleas.

If you are held for court, the next step in the process is arraignment. In most counties and in Philadelphia, very little happens at arraignment, and most private lawyers will waive arraignment so that you do not have to appear. Formal arraignment is a hearing in which a judge or commissioner will advise the defendant of the charges that have survived the preliminary hearing and ask the defendant how he or she pleads. Assuming the defendant pleads not guilty, the case will then be listed for a pre-trial conference before a judge. In some counties, the arraignment is used as an informal pre-trial conference at which plea negotiations may occur or discovery may be exchanged. But in the majority of counties, the arraignment is typically waived for a client who is free on bail and represented by private counsel. Following arraignment, the case will usually proceed to a pre-trial conference in which plea negotiations will be discussed and discovery exchanged. Once discovery is complete and any plea offers have been rejected, the case will be listed for trial. In Philadelphia, a trial before a judge could take place in roughly three to six months after the preliminary hearing. If the defendant wishes to proceed by way of jury trial, it may be a year or more before the case goes to trial. 

Should I waive the preliminary hearing?

If you are charged with a crime, the preliminary hearing is a critical step in the proceedings against you. In Philadelphia, it is very uncommon to waive the hearing, and there is very little benefit in doing so. We will typically waive the hearing only when the defendant has already been approved for some sort of diversionary program such as ARD or treatment court. The Philadelphia District Attorney’s Office currently has a policy of not considering ARD applications until after the preliminary hearing, and so it usually does not make sense to waive it unless ARD is going to be a very close call and the defense wants to be able to argue that the defendant has been fully cooperative.

In the suburban counties, it is much more common for the defendant to waive the preliminary hearing as the prosecutors and police officers often make offers to resolve the case or dismiss some of the charges in exchange for a waiver of the hearing. Once the hearing is waived, however, it becomes much more difficult to fight the case because a valuable opportunity to challenge the prosecution's evidence and cross examine witnesses under oath has been lost. Further, if you waive the hearing in exchange for a reduction in the charges, the prosecution often reserves the right to re-instate the withdrawn charges without a new hearing if you choose to go to trial instead of pleading guilty. Therefore, whether you should waive the hearing depends on the jurisdiction and the offer made by the government. It usually does not make sense to waive it unless there is some sort of firm offer on the table which the defendant wishes to accept or unless there is a requirement in that county that the hearing be waived in exchange for ARD consideration.

Each case is different, and whether you should waive the hearing depends on the facts of your case. Generally, a waiver of the hearing means that the case is headed for some kind of negotiated or open guilty plea or diversionary program. Alternatively, refusing to waive the hearing sends a message to the prosecution to that the defendant plans on fighting the case. Both options have pros and cons which depend on the circumstances of the case and the evidence against the defendant. Therefore, whether you should waive your right to a hearing is an extremely important decision that should be made only with the advice of experienced criminal defense counsel. 

Can I get my preliminary hearing back if I waived it?

It depends. In some cases in the suburban counties, it is possible to waive the preliminary hearing at the magisterial district justice level but still reserve the right to litigate the issue of whether prosecutors can prove a prima facie case prior to trial. This would be accomplished by agreeing with the Commonwealth to a waiver of the hearing with the right to file a petition for writ of habeas corpus in the Common Pleas Court. That would give the parties time to engage in negotiations, exchange discovery, and discuss the possibilities for resolving the case. If the case cannot be resolved, then the defendant may still file the petition for writ of habeas corpus, and the Common Pleas judge would then hold a preliminary hearing in much the same manner as would occur in the magisterial district court. Click here to learn more about habeas corpus petitions.

Could I go to jail at the preliminary hearing?

It is very unlikely that you would go to jail at the preliminary hearing. The court's job is not to find the defendant guilty or not guilty. Instead, the judge's role is to determine whether there is enough evidence for the charges to proceed to the Court of Common Pleas for trial. Even if the Commonwealth presents enough evidence for the case to continue, there would not be a sentencing hearing because the defendant has not been found guilty. The only reason that a defendant would be taken into custody at a preliminary hearing is if the prosecution were to move to have the defendant's bail increased or revoked. In that case, the Municipal Court judge or magistrate would hear arguments on bail and could increase bail or leave bail the same. If the judge increases bail, the defendant could be taken into custody until the new bail amount is paid. The defendant would then be released. It is relatively rare for this to happen, so it is unlikely that you would go to jail at the preliminary hearing even if the prosecution presents sufficient evidence. 

The Philadelphia Criminal Lawyers of Goldstein Mehta LLC Can Help 

Our Philadelphia Criminal Defense Lawyers offer a 15-minute, complimentary criminal defense strategy session. We know that picking up the phone and calling an attorney can be intimidating, so in this video, I explain what you can expect when you call us. Call 267-225-2545 to speak with one of our criminal defense lawyers.

If you have an upcoming preliminary hearing, you need representation from one of our experienced criminal defense lawyers immediately. We have successfully moved for the dismissal of entire cases and some of the most serious charges on countless occasions. We also use this initial hearing to begin building a defense to the charges by getting the witnesses on the record. And in other cases, we have successfully been able to work out the case for a favorable resolution for the defendant. If you are facing criminal charges or under investigation, call 267-225-2545 for a free 15-minute criminal defense strategy session.  

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