What is your criminal defense lawyer’s plan for your preliminary hearing in Pennsylvania?

I’ve written previous articles on preliminary hearing strategies specifically those involving illegal guns, drugs and violent felonies. A preliminary hearing isn’t a trial but don’t underestimate its importance in your criminal defense. Frequently assistant district attorneys expect defendants to waive these proceeding in exchange for an agreement to lower bail, dismiss minor charges that were added to the lead charge, or simply gain some mitigation for the purposes of an eventual plea.  

1. Collect information

This hearing is your first opportunity to evaluate the strength of the prosecution’s case usually in the form of one of their strongest witnesses. Most experienced judges won’t allow a defense attorney to ask questions about possible illegal search and seizure issues, or questions meant to impeach the credibility of a witness. These types of questions are for pre-trial and trial but that doesn’t mean that your defense lawyer should ignore them completely. During the hearing your attorney should collect information about the lighting conditions, the witness’s position in relation to the incident, the length of the observation and what, if anything, was happening around the witness during the observation.

2. Ask only leading questions of the prosecution’s witnesses.

Preliminary hearings are for the prosecution to present its prima facie case against the accused and not to establish guilt. Your defense attorney, however, must use this opportunity to lock the prosecution’s witnesses into an answer and there is no better way of doing it than leading questions. Leading questions, unlike open-ended questions (aka non leading) imply the answer in the question itself. For instance, a leading question is something like, “it was raining out, correct?” A non-leading question is “what was the weather like on the day in question?” Leading questions allow your attorney to control the witness’s response and doesn’t allow the witness to add further details which could hurt your case.

3. Argue what wasn’t argued.

The prosecution’s burden at a preliminary hearing is very low and challenging their argument will do little if anything to cause the judge to dismiss or downgrade charges. It is much stronger to argue what the prosecution didn’t present. In a drug case, for instance, where the charge is possession with the intent to deliver (PWID) your attorney should focus on the lack of observed sales, lack of drug sale paraphernalia (bags, scales, etc.) and the absence of money. On a gun or firearm charge your attorney should look at the location of the gun if the person is charged with the illegal possession of handgun. This particular charge requires the gun be out of the person’s home or place of business. On a drunk driving or DUI charge your criminal defense lawyer should look at the length of the officer’s observation if you are charged with general impairment under Section 3802(a)(1).

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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