Recently, there appears to be much media attention to the purpose for a Preliminary Hearing in Pennsylvania. Specifically, with regard to the Jerry Sandusky case, Mr. Sandusky, through counsel, waived his right to a Preliminary Hearing in Centre County and Mr. Curley and Schultz chose to exercise their right to a Preliminary Hearing in their criminal defense. A recent Patriot News article, dated December 16, 2011, characterized a Preliminary Hearing as requiring, “very minimal evidence from the Prosecution – just enough to show a Judge charges are is more likely than not true [sic].”
A Preliminary Hearing in Pennsylvania is an incredible tool to aid a person charged with a crime to identify and determine what evidence may be offered against him or her at trial. However, the purpose of a Preliminary Hearing is not to “show a Judge charges are more likely than not true” but instead for the Commonwealth to establish a prima facie case and, if the Commonwealth cannot, to avoid the burden on the accused to defend himself or herself.
Rule 543 of the Pennsylvania Rules of Criminal Procedure indicates that, “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 offenses 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.” The purpose of a Preliminary Hearing, then, is to determine whether the government can establish a prima facie case against the accused. Prima facie is a term of art defined by Black’s Law Dictionary as, “At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless proved by some evidence to the contrary.” Black’s Law Dictionary further defines a prima facie case as, “Such as will suffice until contradiction and overcome by other evidence. A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to the contrary is disregarded” and explains that prima facie evidence consists of, “facts . . . which if not rebutted or contradicted, will remain sufficient.”
The purpose of Preliminary Hearing in Pennsylvania is not for the government to prove that the crime was more likely than not committed, but instead, to show a Magisterial District Judge that there is enough evidence to support each of the elements of the offense charged. Evidentiary rules are very relaxed at a Preliminary Hearing, and the government is able to establish these elements, often times, utilizing the hearsay testimony of police officers. For this reason, Defendants in Pennsylvania are granted the ability to be present at a Preliminary Hearing, to cross-examine witnesses of the Commonwealth, to take transcript of the testimony offered a Preliminary Hearing, and offer rebuttal witnesses. The Preliminary Hearing is a great opportunity for the Defendant to gain an understanding of the Commonwealth’s case, and to attempt to eliminate what goes to a jury at trial.
At Foreman & Caraciolo we believe that a Defendant should rarely waive a Preliminary Hearing unless getting something in exchange from the Commonwealth. The advantage of a Preliminary Hearing is to lock down the testimony of any witnesses, have the opportunity to examine evidence presented or to be present at trial, the ability to cross-examine witnesses, to evaluate witnesses, including the ability to question any factual conclusions made by the witness, and to present legal argument to the Court in a request to have some or all of the charges dismissed. This is a right which should not be waived lightly as it virtually ensures that the matter will proceed to a Court of Common Pleas Judge for either Pre-Trial Conference or Trial. Aggressively defending your rights at each stage of a criminal prosecution can often times limit charges, or cases from proceeding to a jury.