Waiving your Preliminary Hearing – How does it limit your defense options and strategy in Pennsylvania?
I’ve written previous articles and done videos on preliminary hearings in Pennsylvania. This is a procedure that is unique to Pennsylvania and it does not exist in New Jersey (Grand Jury system). A preliminary hearing is your criminal defense lawyer’s first opportunity to challenge the evidence against you. The burden is on the Commonwealth and that burden of proof is “more probable than not” or what is known as “prima facie” burden of proof.
This is a much lower evidentiary standard than at trial (guilt beyond a reasonable doubt). This hearing is also not the proper forum to challenge illegal search and seizure issues (4th Amendment) but it is a very good opportunity to set up those pre-trial motions and to test the credibility of at least some of the prosecution witnesses, especially in cases involving the illegal possession of drugs, narcotics, guns and firearms (i.e. possessory crimes)
Should you waive a preliminary hearing in Pennsylvania?
You should never waive a preliminary hearing unless the Commonwealth offers something in exchange for that waiver. Waiving a preliminary hearing without any reduction in the gravity of the charges or a complete dismissal of the charges is not a good idea. Alternatively, if the prosecution is not willing to modify the charges, your defense attorney should consider a waiver if the Commonwealth will agree to a substantial bail reduction in exchange for the waiver. It is a strategic decision on the part of your defense lawyer, but you should know why he is waiving the hearing.
How does it limit your defense?
Waiving a preliminary hearing will not, in most cases, limit your defense but it will limit your defense lawyer’s ability to file a habeaus motion otherwise known as a motion to quash. A habeaus motion challenges the prima facie burden of proof which is the very purpose of the hearing itself. If your defense lawyer waives the hearing and you agree to the waiver you are agreeing that the Commonwealth would have presented enough evidence at the hearing to meet the prima facie burden of proof. A motion to quash argues that not enough evidence existed that a reasonable judge or jury could find a person guilty of a crime. It challenges the elements of the offense. For a possessory crime like an illegal gun or narcotic, a motion to quash would challenge the Commonwealth’s ability to establish either constructive or actual possession of the contraband.
If you’re charged with any crime in Pennsylvania, you will go through the preliminary hearing process in most situations. Do not underestimate the value of this hearing as it can be incredibly important for your defense.
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