How to use a Preliminary Hearing to fight illegal gun and firearm charges in Pennsylvania?

Clients often believe that every appearance in front of a judge is meant to determine their guilt. This is simply wrong. At this hearing a lower court judge (district court) will determine if enough evidence exists for your case to proceed to a trial (i.e. “held for court.” The point of a preliminary hearing isn’t whether there is sufficient evidence to prove that the accused committed a crime beyond a reasonable doubt. Proof beyond a reasonable doubt is the evidentiary standard at a criminal trial. The evidentiary threshold at a preliminary hearing is far below the criminal trial standard. The preliminary hearing standard is a preponderance standard meaning that the prosecution only has to establish that it is more probable than not that a crime was committed and that the accused committed it.

In most illegal gun and firearm cases a lower court judge will find that there is sufficient evidence for the case to proceed to trial. The burden at this level is very low so basically the district attorney only has to present a witness, usually a police officer, who testifies he found a gun on your person or around your immediate control. With that said, most people think that a preliminary hearing is waste of time or something where they really don’t need to hire an experienced criminal defense lawyer. This is a complete mistake; just because your case is “held for trial” doesn’t mean that the preliminary hearing was a loss or unsuccessful for the defense.

Your attorney should use the preliminary to collect information about witnesses, explore the strengths of pre-trial motions to suppress evidence and set up defenses at trial. Pre-trial motions challenge the probable cause to stop and search you or your belonging. Trial defenses may focus on actual vs. constructive possession of the gun or firearm. It’s the prosecution’s burden at a preliminary hearing but that doesn’t mean that your attorney should simply sit back and let the district attorney ask questions of potential trial witnesses without objections. Collecting information also means objecting to foundational basis for testimony and challenging the witnesses’ ability to observe the acts which formed the basis for the illegal gun charges.

While your attorney can’t explore a witnesses’ credibility at a preliminary hearing for a gun charge, he can challenge the basis for the testimony. The credibility of a witness is a trial issue and so if your criminal defense attorney attempts to explore this issue the judge will more than likely not permit it. The judge, however, may permit these questions if the district attorney fails to object to the question. Your criminal defense attorney should never assume the district attorney is going to object to a question. The district attorney may be inexperienced or may simply miss the question. The point is that your attorney should ask the question even if he is 99.9% sure that an objection is coming from the prosecution.

Gun charges under Section 6105, 6106, 6110.2 are all felonies in Pennsylvania and so your attorney must use every opportunity to build your defense. Felony charges are much more serious than misdemeanor charges and could carry a state prison sentence even for first time offenders. Remember, that fact that your case is “held for trial” doesn’t mean that your lawyer lost the preliminary hearing. If your criminal lawyer used the opportunity to collect information and build your defense, you are on your way to a favorable outcome in Pennsylvania.

If you would like to learn more about illegal gun charges, preliminary hearings and trials in Pennsylvania, pick up a copy of Commonwealth v. You. It’s my book which contains over 100 pages of answers to common myth and questions about criminal charges in Pennsylvania.