A Preliminary Hearing is NOT a trial. Be very wary of attorneys who charge a fee that makes it seem like he or she will invest hours preparing for your preliminary hearing. A preliminary hearing is actually a useful part of preparing for a trial but it is not itself a full-blown trial. A preliminary hearing allows your attorney to question witnesses that the Commonwealth will use at trial. This allows the attorney to ask questions that he or she may not want to ask at trial, depending on what the answer is. The preliminary hearing allows the attorney to see the demeanor of certain witnesses that the Commonwealth will present at trial.
Think about it – why would I get two trials if charged with a crime? The key word in the term “preliminary hearing” is the word “preliminary,” and as such, is preliminary to the trial.
The Commonwealth or Government does not have to prove your guilt beyond a reasonable doubt at a preliminary hearing. The Commonwealth must present a prima facie case at the preliminary hearing. This means that the prosecution must establish “that a crime was committed and the accused was the one who committed it.” Commonwealth v. Mullen, 333 A.2d 755 (Pa. 1975). It is the equivalent of ‘probable cause.’ Commonwealth v. Smith, 244 A.2d 787 (Pa. Super. 1968).
Whether a witness is lying is a matter for trial, not for a preliminary hearing. Prosecutors routinely object to any question by a defense attorney that seems to question the witnesses’ credibility. Pittsburgh Criminal Defense Attorney Robert E. Mielnicki often argues that while the district judge cannot dismiss a case because he or she believes that a witness is lying, this does not mean that he cannot ask questions of the witness that may demonstrate that the witness may have questionable credibility.
Please understand that despite the low burden of proof at a preliminary hearing, it is still an important part of the process for those charged with crimes who intend to proceed to trial. Moreover, cases are actually dismissed from time to time at preliminary hearings.
Pa.R.Crim.P Rule 541. Waiver of Preliminary Hearing
(A) The defendant who is represented by counsel may waive the preliminary hearing at the preliminary arraignment or at any time thereafter.
(1) The defendant thereafter is precluded from raising the sufficiency of the Commonwealth’s prima facie case unless the parties have agreed at the time of the waiver that the defendant later may challenge the sufficiency.
(2) If the defendant waives the preliminary hearing by way of an agreement, made in writing or on the record, and the agreement is not accomplished, the defendant may challenge the sufficiency of the Commonwealth’s prima facie case.
(B) The defendant who is not represented by counsel at the preliminary arraignment may not at that time waive the preliminary hearing.
(C) If the defendant waives the preliminary hearing and consents to be bound over to court, the defendant and defense attorney, if any, shall certify in writing that
(1) the issuing authority told the defendant of the right to have a preliminary hearing,
(2) when represented by counsel, the defendant understands that by waiving the right to have a preliminary hearing, he or she is thereafter precluded from raising challenges to the sufficiency of the prima facie case, and
(3) the defendant voluntarily waives the hearing and consents to be bound over to court.
(D) Once a preliminary hearing is waived and the case bound over to the court of common pleas, if the right to a preliminary hearing is subsequently reinstated, the preliminary hearing shall be held at the court of common pleas unless the parties agree, with the consent of the common pleas judge, that the preliminary hearing be held before the issuing authority.
(E) When the defendant waives the preliminary hearing, the case shall proceed as provided in Rule 543(C).
Pa.R.Crim.P. Rule 542. Preliminary Hearing; Continuances
(A) The attorney for the Commonwealth may appear at a preliminary hearing and:
(1) assume charge of the prosecution; and
(2) recommend to the issuing authority that the defendant be discharged or bound over to court according to law.
(B) When no attorney appears on behalf of the Commonwealth at a preliminary hearing, the affiant may be permitted to ask questions of any witness who testifies.
(C) The defendant shall be present at any preliminary hearing except as provided in these rules, and may:
(1) be represented by counsel;
(2) cross-examine witnesses and inspect physical evidence offered against the defendant;
(3) call witnesses on the defendant’s behalf, other than witnesses to the defendant’s good reputation only;
(4) offer evidence on the defendant’s own behalf, and testify; and
(5) make written notes of the proceedings, or have counsel do so, or make a stenographic, mechanical, or electronic record of the proceedings.
(D) At the preliminary hearing, the issuing authority shall determine from the evidence presented whether there is a prima facie case that (1) an offense has been committed and (2) the defendant has committed it.
(E) 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.
(F) In any case in which a summary offense is joined with a misdemeanor, felony, or murder charge, the issuing authority shall not proceed on the summary offense except as provided in Rule 543(F).
(G) Continuances (1) The issuing authority may, for cause shown, grant a continuance and shall note on the transcript every continuance together with:
(a) the grounds for granting each continuance;
(b) the identity of the party requesting such continuance; and
(c) the new date, time, and place for the preliminary hearing, and the reasons that the particular date was chosen.
When the preliminary hearing is conducted in the court of common pleas, the judge shall record the party to which the period of delay caused by the continuance shall be attributed and whether the time will be included in or excluded from the computation of the time within which trial must commence in accordance with Rule 600.
(2) The issuing authority shall give notice of the new date, time, and place for the preliminary hearing to the defendant, the defendant’s attorney of record, if any, and the attorney for the Commonwealth.
(a) The notice shall be in writing.
(b) Notice shall be served on the defendant either in person or by first class mail.
(c) Notice shall be served on defendant’s attorney of record and the attorney for the Commonwealth either by personal delivery, or by leaving a copy for or mailing a copy to the attorneys at the attorneys’ offices.
Pa.R.Crim.P Rule 543. Disposition of Case at Preliminary Hearing
(A) At the conclusion of the preliminary hearing, the decision of the issuing authority shall be publicly pronounced.
(B) If the issuing authority finds that the Commonwealth has established a prima facie case that an offense has been committed and the defendant has committed it, the issuing authority shall hold the defendant for court on the offense(s) on which the Commonwealth established a prima facie case. If there is no offense for which a prima facie case has been established, the issuing authority shall discharge the defendant.
(C) When the defendant has appeared and has been held for court, the issuing authority shall:
(1) set bail as permitted by law if the defendant did not receive a preliminary arraignment; or
(2) continue the existing bail order, unless the issuing authority modifies the order as permitted by Rule 529(A);
(3) if the defendant has not submitted to the administrative processing and identification procedures as authorized by law, such as fingerprinting pursuant to Rule 510(C)(2), make compliance with these processing procedures a condition of bail; and
(4) advise the defendant that, if the defendant fails to appear without cause at any proceeding for which the defendant’s presence is required, including the trial, the defendant’s absence may be deemed a waiver of the right to be present, and the proceeding may be conducted in the defendant’s absence.
(D) In any case in which the defendant fails to appear for the preliminary hearing
(1) if the issuing authority finds that the defendant did not receive notice of the preliminary hearing by a summons served pursuant to Rule 511, a warrant of arrest shall be issued pursuant to Rule 509(2)(d).
(2) If the issuing authority finds that there was cause explaining the defendant’s failure to appear, the issuing authority shall continue the preliminary hearing to a specific date and time, and shall give notice of the new date, time, and place as provided in Rule 542(G)(2). The issuing authority shall not issue a bench warrant.
(3) If the issuing authority finds that the defendant’s absence is without cause and after notice, the absence shall be deemed a waiver by the defendant of the right to be present at any further proceedings before the issuing authority.
(a) In these cases, the issuing authority shall proceed with the case in the same manner as though the defendant were present.
(b) If the preliminary hearing is conducted and the case held for court, the issuing authority shall
(i) give the defendant notice by first class mail of the results of the preliminary hearing and that a bench warrant has been requested; and
(ii) pursuant to Rule 547, transmit the transcript to the clerk of courts with a request that a bench warrant be issued by the court of common pleas and, if the defendant has not complied with the fingerprint order issued pursuant to Rule 510(C)(2), with a notice to the court of common pleas of the defendant’s noncompliance.
(c) If the preliminary hearing is conducted and the case is dismissed, the issuing authority shall give the defendant notice by first class mail of the results of the preliminary hearing.
(d) If a continuance is granted, the issuing authority shall give the parties notice of the new date, time, and place as provided in Rule 542(G)(2), and may issue a bench warrant. If a bench warrant is issued and the warrant remains unserved for the continuation of the preliminary hearing, the issuing authority shall vacate the bench warrant. The case shall proceed as provided in paragraphs (D)(3)(b) or (c).
(E) If the Commonwealth does not establish a prima facie case of the defendant’s guilt, and no application for a continuance is made and there is no reason for a continuance, the issuing authority shall dismiss the complaint.
(F) In any case in which a summary offense is joined with misdemeanor, felony, or murder charges:
(1) If the Commonwealth establishes a prima facie case pursuant to paragraph (B), the issuing authority shall not adjudicate or dispose of the summary offenses, but shall forward the summary offenses to the court of common pleas with the charges held for court.
(2) If the Commonwealth does not establish a prima facie case pursuant to paragraph (B), upon the request of the Commonwealth, the issuing authority shall dispose of the summary offense as provided in Rule 454 (Trial In Summary Cases).
(3) If the Commonwealth withdraws all the misdemeanor, felony, and murder charges, the issuing authority shall dispose of the summary offense as provided in Rule 454 (Trial In Summary Cases).
(G) Except as provided in Rule 541(D), once a case is bound over to the court of common pleas, the case shall not be remanded to the issuing authority.