Preliminary Hearing

In Pennsylvania, if you are charged with a criminal offense, you are entitled to have a preliminary hearing within 10 days of the charges being filed.

At the preliminary hearing, the Magisterial District Judge has to determine whether there is sufficient evidence for the charges to be held over to the Court of Common Pleas (trial level). The burden of proof at a preliminary hearing is on the Commonwealth (District Attorney’s Office). The prosecutor must prove the elements of the offenses to a prima facia level. Prima facia is just a legal term meaning “on the face”.  The Magisterial District Judge looks at the Affidavit of Probable Cause and any additional evidence that the prosecutor presents to make a determination whether it’s more likely or not that the charges alleged occurred and, is it more likely or not that the defendant was the one who committed them. The Magisterial District Judge does not determine if the defendant is guilty or not guilty. Nor does the Magisterial District Judge determine a sentence. There are exceptions to this, such as when the defendant is only facing summary offenses, but that is a discussion for another day.

As a defendant in a criminal case in Pennsylvania, the accused has a right to an attorney. If the accused cannot afford an attorney, one can be appointed to them free of charge (Public Defender). The defendant also has the right to hire counsel of their own choosing. Their attorney can make objections, can cross-examine witnesses and can put on evidence. The defendant also has the right to testify on their own behalf at the preliminary hearing. A word of caution about this, as the Magisterial District Justice does not have the authority to determine credibility at the preliminary hearing level, thus a defendant risks being cross-examined by a prosecutor. The decision to testify at a preliminary hearing should be discussed with your attorney. What this means in practical terms is that Magisterial District Judge cannot determine who is telling the truth and who might be lying – those are the sole purview of the fact finder at the Court of Common Pleas level, namely a jury (or trial judge at a bench trial).

There are numerous benefits to a preliminary hearing. It is one of the few opportunities that a criminal defendant has in Pennsylvania to assess the witnesses that the prosecution has in their case, to assess some of the evidence and to get a preview of what that evidence might look like when presented in a courtroom setting.

If the Magisterial District Judge, after hearing all of the evidence, cross-examination by defense counsel and any arguments presented by either the prosecutor or defense counsel, makes a determination that the Commonwealth has met its burden of proof, the charges are “held for court” and proceed to the Court of Common Pleas. If the Commonwealth has not met the burden of proof, the charge or charges can be dismissed. If charges are held over and the defendant believes that the Magisterial District Judge made a mistake, i.e., that the prosecution failed to meet the burden of proof, the defendant has the right to file a Petition for Writ of Habeas Corpus at the Court of Common Pleas level, in which the defendant would argue through his or her counsel that the Commonwealth does not have enough evidence. It is important to note that at a pre-trial hearing, which may be subject to a subsequent blog article, the prosecution does have a right to supplement the evidence presented at the preliminary hearing with additional witnesses and exhibits.

There are circumstances where a defendant chooses not to have their preliminary hearing and instead waives it. Some of those circumstances may be that in waiving a preliminary hearing, the Commonwealth is agreeing to withdraw a charge or charges. Another reason to waive a preliminary hearing is that the Commonwealth might agree to a reduction of bail in exchange for a waiver of preliminary hearing. A defendant might also waive a preliminary hearing in order to gain entrance into a diversionary program such as ARD (Accelerated Rehabilitative Disposition), or Drug Court, when it is a requirement of the defendant to waive their preliminary hearing in order to apply for these programs.

Anyone accused of criminal charges in Pennsylvania should seek an attorney who practices in this area of law to assist them in both preparing for a preliminary hearing and making the determination whether a waiver would be beneficial to the ultimate disposition of their case. If you are faced with criminal charges, seek the assistance of an attorney immediately in order to preserve and protect your constitutional rights.

— Written by Thomas P. McCabe, Esq.

DISCLAIMER: The contents of this blog are not legal advice, and are not to be used for that purpose.  If you charged with a criminal offense, you should contact a lawyer immediately in the order to ensure that your rights are protected.  Thomas P. McCabe, Esquire is a licensed Pennsylvania lawyer, and does not purport to comment on any other jurisdiction in the United States of America.

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