WHAT IS A PRELIMINARY HEARING IN PENNSYLVANIA?
Mark D. Copoulos, Esquire is a Philadelphia criminal defense attorney representing individuals charged with misdemeanor and criminal offenses in Pennsylvania. Copoulos is known as an aggressive litigator and wins criminal cases on a regular basis. Felony criminal cases start with a preliminary hearing. The preliminary hearing is the first substantial step in your case. Many times, charges are dismissed at a preliminary hearing. Even if the charges are not dismissed, information may be obtained that results in a favorable outcome at a subsequent motion or the trial of your case.
Many attorneys recommend waiving your preliminary hearing. They will argue that it expedites the case and encourages cooperation with the Office of the District Attorney. As discussed in the video below, I strongly recommend against waiving a preliminary hearing. This is an opportunity to have charges dismissed, or at a minimum to cross examine the government’s witnesses and gather more information for motions and trial.
WHAT IS A PRELIMINARY HEARING?
The preliminary hearing is not a trial. It is an opportunity for a judge sitting on the bench, to decide whether he is convinced more likely than not, that the defendant committed the crimes alleged.
The idea behind the preliminary hearing is that criminal charges are incredibly serious matters. They can often take years to resolve. Given the seriousness, the courts use the preliminary hearing to screen out cases that may not be worthy of government prosecution. It is basically an opportunity for a judge to review the facts, and confirm that there is a basis for criminal prosecution.
The burden of proof at a preliminary hearing is a prima facie case, or loosely stated, more likely than not. All inferences are given to the government, and credibility is not at issue. What this means is that the judge is not supposed to weigh whether he believes the complaining witnesses, he is merely supposed to evaluate their testimony and ascertain whether the conduct alleged rises to the level of a criminal act. Many defendants get frustrated when their cases are held for court. However, it is important to remember the preliminary hearing is not a trial. All it is a chance for the judge to hear the facts and get additional information.
HEARSAY ADMISSIBLE BUT NOT TO PROVE ALL ELEMENTS OF THE CASE
Given the purpose of a preliminary hearing, which is to substantiate criminal allegations, the government is allowed to use hearsay. Hearsay is an out of court statement offered to prove the truth of the matter asserted. For example, if an individual has a conversation with someone on the street, the other person’s statement would be hearsay if repeated in court. The rule is intended to encourage in-person testimony. In-person testimony is preferred because the belief is that in-person testimony can be assessed for credibility. At a preliminary hearing the government can use hearsay. But it cannot use only hearsay to prove its case against the defendant. See Commonwealth v. Ricker. In other words, some direct evidence must be admitted at a preliminary hearing to hold the case for trial. This is currently a developing area of law, and changes are soon to follow.
USING THE PRELIMINARY HEARING TO YOUR ADVANTAGE
Another consideration at the preliminary hearing is whether charges can be downgraded. Sometimes the government overcharges a defendant. A defendant gets into a fight, and is charged with Aggravated Assault (a felony offense), instead of Simple Assault (a misdemeanor offense). Other times the government overestimates the value of items seized and charges the defendant with a higher grade of theft than appropriate. An argument can be made to the judge at a preliminary to downgrade the charges and/or remand the case to Municipal Court. In my experience, this is a particularly effective method of using the preliminary hearing to the defendants benefit.
BAIL MOTIONS AFTER THE PRELIMINARY HEARING
Another way to use the preliminary hearing to your advantage is to make a bail motion. If the defendant is in custody, this may be the first chance to argue bail before a judge rather than a commissioner. The judge has just heard the facts of the case, or perhaps the government was not ready to proceed. Accordingly, the judge may be receptive to an effectively argued bail motion and / or and argument to have the defendant placed on house arrest. Even if the bail is astronomical, a judge may consider ordering a sign on bond (“SOB”) bail, with the condition of house arrest. This is increasingly common in Philadelphia, as many judges are opposed to incarceration, except where the defendant is a threat to society. Accordingly, if the defendants bail is excessive he may get it lowered at a preliminary hearing to an amount that can be paid, or get house arrest if he cannot afford to pay it at all.
There is very little to lose at a preliminary hearing and much to gain. In my six years of practice, I have only seen one defendant jailed at a preliminary hearing who was on bail. Bail is very rarely raised and many times it is reduced. It is a chance to get more evidence about your case, argue for charges to be downgraded and/or dismissed, and gather police reports and speak with the District Attorney. For all these reasons, it makes little sense to waive a preliminary hearing. Further, you should have an experienced and aggressive Philadelphia criminal defense attorney at your Hearing to make sure you take full advantage of the benefits it provides.
If you have been arrested and charged with a felony, call Mark D. Copoulos, Esquire. He has successfully maximized the preliminary hearing stage of criminal cases since he opened his firm in 2011. Do not waste this opportunity to challenge the government’s evidence, learn more about your case, and argue for dismissed and/or a downgrade the criminal charges. Call now for a free consultation. Our office can be reached at 267.535.9776.