New Limits on PA Civil Asset Forfeiture

In a unanimous 73-page opinion, the Pennsylvania Supreme Court has provided significantly increased protections for property-owners in civil forfeiture cases where the matter arises out of some sort of criminal wrongdoing for which there may not have been a prosecution. The Court’s opinion will particularly benefit property owners who face a civil forfeiture action due to wrongdoing committed by someone who uses or has access to the property but does not actually own it. In Commonwealth v. The Real Property and Improvements Known as 416 S. 62nd Street, Philadelphia, PA 19143 (Elizabeth Young), the Court found that the Excessive Fines Clause of the Eighth Amendment to the United States Constitution provides significant constitutional limitations on the government’s ability to seize property from someone who has not been convicted of a crime.

What is CIVIL ASSET Forfeiture? 

There have traditionally been two types of forfeiture which could relate to criminal wrongdoing. In general, criminal forfeiture is less problematic and controversial. Criminal forfeiture is the idea that someone who has been convicted of a crime may be ordered by the sentencing court to forfeit property related to the crime or profits generated through criminal activity. The criminal forfeiture is part of the defendant’s sentence, and it requires that the defendant have been convicted beyond a reasonable doubt. For example, if you are convicted of money laundering, you could be ordered by the sentencing court to forfeit the money.

Civil Forfeiture

The other type of property forfeiture, civil forfeiture, is much more problematic and controversial because it does not a criminal conviction or even a prosecution. Civil forfeiture involves the government filing a lawsuit against the property itself instead of a criminal defendant. Historically, if the government could show some sort of nexus between the property and some sort of criminal activity, then the government could seize the property even if the defendant had not committed the crime or even been involved in it. Thus, civil forfeiture at its worst allows the government to take your house if someone else in your house commits a crime while in the house even though you, as the property owner, had nothing to do with the crime. Civil forfeiture is also problematic because it disrupts law-enforcement incentives by providing cash-strapped cities and states with a financial incentive to focus on drug crime, where the police are likely to be able to seize cash, weapons, cars, and jewelry, instead of more serious crimes like rape and murders where law enforcement are not going to make any money through civil forfeiture. In an era of tight governmental budgets, civil forfeiture can be a real way for police and prosecutors to stave off cuts to their own departments. Thus, police and prosecutors could become more interested in arresting people for selling marijuana than solving violent crimes.     

Commonwealth v. Elizabeth Young

Commonwealth v. Elizabeth Young provides one of the clearest examples of civil forfeiture abuse and the need for increased protections. In Young, the Philadelphia District Attorney’s office attempted to use civil forfeiture to take the house of a 71-year-old grandmother who owned and resided in a property in West Philadelphia. She had owned the house since the 1970s, and in 2006, her health began to deteriorate. Her adult son and two grandchildren moved into the house, and her adult son began selling relatively small amounts of marijuana. On a number of occasions, her son sold marijuana to police officers or confidential informants. He also used her Chevrolet Minivan to meet with buyers during some of these drug transactions. On at least one occasion, police warned Ms. Young that her son was selling marijuana, but the marijuana sales apparently continued.

Eventually, Ms. Young’s son was convicted of Possession with the Intent to Deliver marijuana and sentenced to a short county jail sentence. Ms. Young was never charged with a crime, but the District Attorney’s Office filed a petition for forfeiture of her house and vehicle under the Controlled Substances Forfeiture Act. Although the Commonwealth never charged her with a crime, prosecutors sought to put a 71-year-old grandmother out on the street due to the fact that she was unable to prevent her adult son from selling small amounts of marijuana.

The trial court, finding that Ms. Young had not done enough to stop her son from selling marijuana, ordered the house and car forfeited to the Commonwealth. The trial court found a nexus between the marijuana sales and the home and vehicle in that both the house and the car were used to store and sell marijuana. Under Pennsylvania law, there is an “innocent owner” defense to civil forfeiture in that a defendant may retain the property if the defendant can show that he or she did not know about the illegal activity or did not consent to it. However, the court found that the innocent owner exception did not apply because police had warned Young of the sales and she had not done anything to stop her adult son from selling marijuana after that date. In other words, she was unable to convince her son to stop, and she was also not willing or able to throw him out of the house. The trial court further found that that the forfeiture did not constitute an excessive fine because the maximum financial penalty for the drug crimes would have been $80,000, and that amount exceeded the value of the home and automobile.

Increased Protections in Civil Forfeiture Cases

On appeal, the Commonwealth Court reversed the trial court’s ruling, and last week, the Pennsylvania Supreme Court upheld the decision of the Commonwealth Court. The Court traced the history of both civil and criminal forfeiture and the Excessive Fines Clause of the Eighth Amendment and ultimately concluded that the trial court erred in ordering that the property be forfeited. The Court found that a trial court must consider two issues in a challenge to a civil forfeiture under the Excessive Fines Clause.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

— The Eighth Amendment to the United States Constitution

First, the trial court must determine whether the property sought to be forfeited is an instrumentality of the underlying criminal offense. If the property is not an instrumentality, then the forfeiture is unconstitutional and the property may not be forfeited. If the trial court finds that the property is in fact an instrumentality, then the court must still determine whether the value of the property sought to be forfeited is grossly disproportional to the gravity of the underlying offense.

In making the decision on the threshold instrumentality issue, the court should consider at least the following factors: 

(1) whether the property was uniquely important to the success of the illegal activity;

(2) whether the use of the property was deliberate and planned or was merely incidental and fortuitous to the illegal enterprise;

(3) whether the illegal use of the property was an isolated event or repeated;

(4) whether the purpose of acquiring, maintaining or using the property was to carry out the offense;

(5) whether the illegal use of the property was extensive spatially and/or temporally; and

(6) whether the property is divisible with respect to the subject of forfeiture, allowing forfeiture of only that discrete property which has a significant relationship to the underlying offense.

If the property is an instrumentality of the crime, the court must weigh the value of the property against the gravity of the offense. In evaluating value, the court must consider the following factors: 

(1) the fair market value of the property;

(2) the subjective value of the property taking into account whether the property is a family residence or if the property is essential to the owner’s livelihood;

(3) the harm forfeiture would bring to the owner or innocent third parties; and

(4) whether the forfeiture would deprive the property owner of his or her livelihood.

Once the court has determined the value of the property, the court must then weigh the value of the property under the above four factors against the gravity of the offense, considering factors such as:

(1) the nature of the underlying offense;

(2) the relation of the violation of the offense to any other illegal activity and whether the offender fit into the class of persons for whom the offense was designed should be considered;

(3) the maximum authorized penalty as compared to the actual penalty imposed upon the criminal offender;

(4) the regularity of the criminal conduct — whether the illegal acts were isolated or frequent, constituting a pattern of misbehavior;

(5) the actual harm resulting from the crime charged, beyond a generalized harm to society; and

(6) the culpability of the property owner.

Clearly, the court must now consider a large number of factors when making a civil forfeiture decision, and the majority of the factors are going to weigh against taking a 71-year-old grandmother’s home due to a limited number of marijuana sales by a non-owner of the property. Thus, the Pennsylvania Supreme Court remanded the case to the trial court to reconsider its findings in light of the new guidance provided by the decision. Additionally, the Supreme Court rejected the trial court’s relatively cursory analysis of the issue under the innocent owner defense. The Court noted that the innocent owner defense can be shown through two ways: either a lack of knowledge or lack of consent. Thus, simply having knowledge of illegal activity may not be enough. If the defendant ordered her son to stop selling drugs and believed he had done so, then that may have been enough to show a lack of consent even if she did originally have knowledge.

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The Court’s ruling greatly strengthens the protections for people who are facing civil forfeiture actions but have not been found guilty of any criminal wrongdoing themselves. It also should not really limit the Commonwealth’s ability to take property which his truly being used for criminal activity. In the case of a house which has really become a drug house, or property which has been used to commit a crime, then prosecutors should still be able to show that the factors weigh in favor of forfeiture. But in cases like Young, the Commonwealth will have a much more difficult time putting grandmothers out on the street because they have difficulty stopping adult children from selling marijuana.

As always, if you are facing criminal charges, under investigation, or dealing with a forfeiture action, you should speak with one of our Philadelphia criminal defense lawyers today. We can help with state and federal charges in Pennsylvania and New Jersey. Call 267-225-2545 for a free criminal defense strategy session with an award-winning defense attorney.

What Happens If The Police Don't Give Miranda Warnings?

Understanding Your Miranda Rights

Miranda warnings are an incredibly important procedural protection for people who are the subject of a police investigation or police questioning. However, there are limitations to the protections provided by Miranda warnings and the remedies available to a criminal defendant who has his or her Miranda rights violated. In the case of Miranda v. Arizona, the United States Supreme Court held that any time a person is subjected to custodial interrogation, the prosecution may not use any statements made by the defendant in court unless the police first provided certain warnings to the defendant prior to questioning. If you have ever watched a police procedural TV show, then you are probably familiar with the warnings. Prior to a custodial interrogation, the police must provide the following warnings: 

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

— Miranda Warnings

When Do The Police Have To Give Miranda Warnings? 

Miranda warnings are required whenever the police subject a person to a custodial interrogation. Custodial interrogation requires that two elements be present: first, the defendant must be in custody, and second the defendant must be interrogated.

A defendant is in custody for Miranda purposes when the defendant is deprived of his physical freedom in a significant way, or when the defendant reasonably believes that his or her freedom of action is restricted by the interrogation. In some cases, it is obvious that the defendant is in custody. If the defendant is placed in handcuffs, transported to the station in a patrol car, and then questioned in a holding cell or interrogation room, then a court is likely to find that the defendant was in custody for Miranda purposes.

However, there are more difficult cases in which the defendant is not free to leave or has been subjected to some display of police authority, but the defendant may not be in custody for Miranda purposes. Miranda custody requires the equivalent of a formal arrest. Therefore, Miranda does not typically apply during a routine traffic stop or in situations where the defendant is merely being detained for a Terry stop and frisk. Thus, if the defendant tells a state trooper that he has drugs in the car after being pulled over for speeding, Miranda is likely not going to keep that type of confession out of evidence. 

Ultimately, a court will look at the totality of the circumstances in determining whether a reasonable person would have believed themselves to be under arrest. Factors which the courts will consider could include the location of the questioning, the number of officers involved, the statements made by the officers as to whether the defendant is free to leave or under arrest, the degree to which the questioning involves confronting the suspect with incriminating evidence or contradictions in previous statements, the use of handcuffs, and whether officers transport the defendant to another location. If questioning occurs while the defendant is not in custody, then the police are not required to first provide Miranda warnings.    

Police are also only required to provide Miranda warnings when the defendant is subjected to an interrogation. An interrogation means that the police tried to obtain incriminating information form the defendant. If the police do not ask any questions or say anything to the defendant, then the police are not required to provide Miranda warnings. For example, if police arrest a criminal defendant and the defendant blurts out something incriminating, then the statement may be used in court despite the absence of Miranda warnings.  

Whether questioning constitutes an interrogation does not depend on the subjective intent of the law enforcement officer. Instead, an interrogation occurs when the police ask questions or make statements which are reasonably likely to, calculated to, or expected to evoke incriminating admissions and develop contradictions. Further, appellate courts have held that Miranda warnings may be required even when the officer does not ask an actual question. If an officer makes a statement that is reasonably likely to get the defendant talking or to respond in some incriminating way, then the officer's statement could qualify as an interrogation despite the absence of an actual question. However, it is clear that the officer must actually do something that leads to the defendant's statement in order for the Miranda rule to apply. 

What Happens If The Police Don't Give You Your Miranda Warnings? 

The remedy for a Miranda violation is simple: if the police do not provide Miranda warnings prior to a custodial interrogation, then any statements made by the defendant during that interrogation may not be used in court against the defendant. There are limitations to this protection, however, because the police may still use derivative evidence that they find as a result of the statement. For example, if the police violate Miranda and question the defendant, and the defendant provides the location of incriminating physical evidence, the incriminating physical evidence may be introduced at trial against the defendant, but the defendant's statement may not be used. This can still be problematic because the evidence may have the defendant's fingerprints or DNA on it. Likewise, a Miranda violation does not lead to an automatic dismissal of a criminal case. It simply means that the prosecutor cannot use the statement against the defendant in court. If the prosecution has other evidence, then the prosecution can still proceed to trial. 

There is one major exception to the rule that derivative evidence obtained through Miranda violations may be introduced at trial. Detectives may not obtain a confession in violation of Miranda, immediately provide Miranda warnings, and re-interrogate the defendant to obtain the same incriminating statement. In cases where an un-Mirandized confession leads to a subsequent Mirandized confession, even the subsequent, Mirandized confession often may not be used in court because of the prior illegality.

However, there are limitations to this rule. If the prosecution can show a break in the chain between the first and second confession, then it may be possible to use the subsequent confession. Again, a court will employ a totality of the circumstances case which looks at factors such as the amount of time between confessions, the locations of the confessions, whether the same officers are involved, and whether the defendant has the opportunity to consult with an attorney or friends and family.  

How Is Miranda Enforced?

If you believe that your Miranda rights have been violated, then your criminal defense lawyer can file a motion to suppress the resulting statement in the trial court. The court will then conduct a hearing on the motion. At the hearing, the Commonwealth will have to prove that the statement was legally obtained by a preponderance of the evidence. This means that the prosecution must call the witnesses who were involved in the taking of the statement to testify. Likewise, the defense may call either third-party eyewitnesses or the defendant to testify. If the court concludes that the defendant was subjected to custodial interrogation without Miranda warnings, then the court will issue an order suppressing the statement and forbidding the prosecution from introducing it at trial.  

Facing Criminal Charges? We Can Help

Goldstein Mehta LLC Philadelphia Criminal Defense Lawyers

If you are under investigation or facing criminal charges, we can help. Miranda protections are important, but your best bet is always to speak with a criminal defense lawyer prior to giving a statement to detectives. It is always difficult to have an incriminating statement suppressed, which is why it is extremely important to speak with an attorney first. Call us at 267-225-2545 to speak with an award-winning Philadelphia, PA defense attorney today. 

PA Supreme Court Limits Application of Designer Drug Statute

What Is A Designer Drug?

Designer drugs present a difficult issue for the criminal justice system and law enforcement. In general, the idea of a designer drug is not that difficult to understand. A designer drug is some type of substance that is designed to mimic the effects of an already-regulated controlled substance but altered in an attempt to avoid regulation and criminal liability. Setting aside the pros and cons of the war on drugs, it makes sense that if the government is going to criminalize marijuana, then the government would also attempt to criminalize synthetic substances like K2 that provide the same effect of marijuana despite having a different chemical structure.

Problems with Criminalizing Designer Drugs

In practice, the issue becomes much trickier. It is very difficult for the government to craft a legal definition in a statute prohibiting designer drugs which gives fair notice to the average person as to exactly what substances are illegal or regulated. There will always be questions: For example, how similar does the substance have to be? Does the similarity apply only to the effect of the substance, or does the similarity apply to the chemical structure? If it applies to the chemical structure, how can an ordinary person be expected to know the exact chemical structure of a drug, and how do we compare substances?  And if it applies to the effect of the drug, then how do you measure effect given that drugs have different effects on different people. Accordingly, designer drug prosecutions often involve challenges to the statute itself as well as conflicting expert testimony from the prosecution and defense as to whether the substance involved qualifies as a designer drug. 

The Pennsylvania Supreme Court has just dismissed a void-for-vagueness challenge to the Pennsylvania statute which criminalizes the possession and distribution of “designer” drugs. Despite upholding the constitutionality of the statute, however, the Court has dramatically limited its application by reading in an extremely heightened mens rea requirement for designer drug prosecutions. In Commonwealth v. Herman, the Court held that although a previous version of the statute which criminalized “analogues” of controlled substances was unconstitutionally vague, the current definition of a “designer drug” is not so vague as to render the statute unlawful. Nonetheless, the statute requires that the defendant actually know that the substance involved was a designer drug and not just that the defendant possessed the substance itself.  

The Pennsylvania Designer Drug Statute

The designer drug statute prohibits the “knowing or intentional . . . possession with intent to distribute, or possession, of a designer drug.” It defines a designer drug “as a substance other than a controlled substance that is intended for human consumption and that . . . has a chemical structure substantially similar to that of a controlled substance in Schedules I, II, or III . . . or that produces an effect substantially similar to that of a controlled substance in Schedule I, II, or III.”

In Herman, the defendant owned and operated a smoke shop in York County, PA. Undercover police officers entered the store and purchased alleged designer drugs labeled “Winter Haze” and “V-8 Air Freshener.” Upon testing the substances, the prosecution determined that they contained the chemical PB-22, which prosecutors alleged was either a controlled substance or a designer drug which was substantially similar to a controlled substance and synthetic cannabinoid (synthetic marijuana) called JWH-018. Accordingly, the Commonwealth charged the defendant with three counts of delivery of a controlled substance, one count of possession with the intent to deliver a controlled substance, and one count of possession or possession with intent to distribute a designer drug.

Void-For-Vagueness

After the defendant was held for court at the preliminary hearing, the defendant filed a Petition for Writ of Habeas Corpus asking the trial judge in the Court of Common Pleas to dismiss the drug charges. The defense argued that the statute was so vague that it made it impossible for an ordinary person to know exactly what the law prohibits. Although much of the case dealt with various definitions under a previous version of the statute, the prosecution also involved the current definition of a designer drug. With respect to the designer drug charge, the defense argued that the Commonwealth failed to offer any evidence that PB-22 had a chemical structure similar to that of JWH-018 and that the Commonwealth’s evidence showed only that the physiological and toxicological properties of PB-22 were unknown. Therefore, the Commonwealth could not show that the compounds were substantially similar in either chemical form or effect.   

The Pennsylvania Supreme Court rejected the defendant’s void-for-vagueness challenge with respect to the designer drug charge. Under the void-for-vagueness doctrine, the government may not impose sanctions under a criminal law that fails to give fair notice of the proscribed conduct. The doctrine safeguards against arbitrary or discriminatory enforcement by the government, and it prevents jury verdicts unfettered by any legally fixed standards as to what is prohibited by the statute. The Court noted that the inquiry into whether a statute is void-for-vagueness focuses on whether the law forbids or requires the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.

Although the trial court found the statute to be unconstitutionally vague, the Supreme Court reversed the lower court's ruling. The Court found that the “substantially similar” language used in the statute was not unusual or unduly vague and noted that such language has been upheld repeatedly both by federal courts and appellate courts in other states. Although the prosecution and defense experts differed as to the ultimate issue of whether the substances were in fact substantially similar, the issue of which expert was right was an issue for the jury. It was not a basis for finding that the statute violates due process. 

Possession of a Designer Drug Must Be Knowing and Intentional

Despite deciding to uphold the statute, the Court did have significant concerns about the difficulty in determining whether a substance actually qualifies as a designer drug. Accordingly, the Court emphasized the mens rea element of the crime. The act requires that a defendant possess the drug knowingly or intentionally. Therefore, the Court suggested that the defendant must know not only that he possesses the substance, but also that the substance is in fact a designer drug. Thus, the Court suggested that in order to obtain a conviction, the Commonwealth must show that the defendant knew the chemical he possessed had a molecular structure or effect substantially similar to that of a scheduled controlled substance. This mens rea requirement would prevent the statute from becoming a "trap for unwitting members of the public who have no expertise in organic chemistry."

Instead, the Court found that the statute is quite reasonably aimed at those who traffic in novel compounds which are essentially the same as scheduled controlled substances but contain minor differences designed to evade the statutory schedules. Thus, the Court concluded that the General Assembly can “reasonably expect and require persons engaged in that activity to possess or obtain the specialized knowledge needed to conform their conduct to law.”

Although the Court upheld the constitutionality of the statute, the narrowing of the mens rea requirement would seemingly make it very difficult for the prosecution to obtain a conviction in most cases. Now, the Commonwealth must show more than the mere possession of a substance that qualifies as a designer drug by a defendant. Instead, the Commonwealth must show that the defendant actually knew that the substance would qualify as a designer drug. This will make it possible to prosecute the manufacturers and regular distributors of such substances, but the average person or small store-owner who possesses a designer drug may be able to avoid liability unless the Commonwealth can show an actual admission or incriminating statement on their part. Thus, the statute remains in effect, but its application has been substantially narrowed by the Court. 

We Can Help With Designer Drug Charges

Goldstein Mehta LLC Criminal Lawyers | Philadelphia, PA

If you are facing designer drug charges or any other criminal charges in Pennsylvania or New Jersey, we can help. Our award-winning defense attorneys have successfully defended thousands of criminal cases. Designer drug cases are more complicated than regular possession cases and may require the use and cross-examination of expert witnesses. We have the experience and skill to fight for you and help you get the best possible result. Call 267-225-2545 to speak with a Philadelphia criminal defense lawyer today.  

PA Superior Court: Preliminary Hearing Based on Pure Hearsay Does Not Violate Due Process

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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Criminal Lawyers Demetra Mehta and Zak Goldstein

If you are facing criminal charges, we can help. Our Philadelphia criminal defense attorneys have successfully represented thousands of clients in preliminary hearings, pre-trial motions, and at trial in the Municipal Court and Court of Common Pleas. We can help with any type of state and federal criminal charges in Pennsylvania and New Jersey. Call 267-225-2545 to speak with an experienced and understanding criminal defense lawyer today.