What Is A Preliminary Hearing, And What Happens Afterwards?

The preliminary hearing is an extremely important step in the criminal justice process, and our criminal lawyers have successfully moved for dismissal of some or all of the charges in countless cases. In most cases, the “prelim” is the first opportunity for our criminal defense lawyers to challenge the evidence and charges against you. Although the hearing is a critical step in the process, it can also be frustrating and confusing for the defendant because the hearing differs significantly from the actual trial.

The proceedings sort of look like a trial, but they are different from the trial, and there are a number of important distinctions. A judge, prosecutor, defense attorney, court reporter, and court clerk are all likely to be there, making it look like a trial. However, despite the appearance of a criminal trial, it is not the same thing. Instead, the hearing (sometimes called a probable cause hearing) is a relatively brief court appearance in which a Philadelphia Municipal Court judge or county Magisterial District Justice, depending on the venue of the case, will usually hear from one or two of the main Commonwealth witnesses in order to determine whether the prosecution can successfully introduce enough evidence to show that the case should proceed to trial at the next level.

Just recently, the Pennsylvania Supreme Court re-affirmed the proposition that the Commonwealth generally must put on some live testimony and typically may not proceed on hearsay alone. The exact limitations on the admissibility of hearsay at a preliminary hearing are still subject to ongoing litigation, but it is clear that the Commonwealth must put on at least some real evidence in order to get a case to the Court of Common Pleas. More recently, in the case of Commonwealth v. Harris, the state Supreme Court affirmed a decision of the Superior Court holding that the Commonwealth must present competent evidence relating to the identification of the defendant at a preliminary hearing, as well. This is particularly true for preliminary hearings in Philadelphia. Even in the counties where prosecutors are more often allowed to use hearsay, the hearing still provides the defense with the opportunity to cross examine the lead detective or police officer in the case. Therefore, it is a critical step in the process because it provides the first chance for our defense attorneys to challenge the charges and evidence against you. The rules also require at least some witnesses to come to court and testify under oath.

The Burden of Proof at a Preliminary Hearing

The prosecutor or affiant (main police officer or assigned detective) must present enough evidence to prove a prima facie case for each charge. This standard requires the Assistant District Attorney to prove 1) that it is more likely than not that a crime was committed and 2) that the defendant committed it. The prosecutor will try to do this by calling witnesses and presenting evidence in much the same manner as the prosecutor would at trial. The defense lawyer then has the opportunity to cross examine the witnesses. If the prosecution does not introduce enough evidence to prove a prima facie case for any given charge, then the defense may move for dismissal of that charge, and that charge should be dismissed by the judge. It is important to remember that the prima facie case standard does not require the Commonwealth to prove the case beyond a reasonable doubt. Therefore, you should not assume that just because a case was held for court that you will be convicted at trial. There is a significant difference between a judge believing that the Commonwealth has established a prima facie case and a jury concluding that a defendant is guilty beyond a reasonable doubt.

Is hearsay admissible at a preliminary hearing?

Although there is a right to cross examine prosecution witnesses and present defense witnesses at a prelim, the rules are very different. For example, the rules of evidence do not apply with the same force as they would at trial. The evidence rules are much more loosely enforced, and it is clear under Pennsylvania law that at least some hearsay is permitted at the hearing pursuant to Pennsylvania Rule of Criminal Procedure 542(E).

That rule provides:

Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.

Although Rule 542 allows the Commonwealth to rely on some hearsay at a preliminary hearing, the Pennsylvania Supreme Court has held that the Commonwealth may not prove the charges against a criminal defendant solely through the use of hearsay without violating a defendant's right to due process under the Pennsylvania Constitution. In recent years, the Superior Court, which is Pennsylvania’s intermediate appellate court, authored a number of opinions in cases such as Commonwealth v. Ricker and Commonwealth v. McClelland in which it allowed the Commonwealth to rely more heavily on hearsay than was previously allowed under Supreme Court precedent.

Those decisions, however, have been overruled as of July 21, 2020 by the Pennsylvania Supreme Court. In McClelland, the Supreme Court re-established the previously long-standing rule that a defendant may not be held for court based on hearsay alone. The Supreme Court overruled both prior decisions of the Superior Court and found that a defendant has a due process right to a preliminary hearing which does not consist entirely of hearsay. This means that defendants now have increased protections at the preliminary hearing and an earlier opportunity to make a meaningful challenge to the case against them. The Supreme Court’s ruling is extremely important because of the reality that in serious cases or in cases where a defendant is on probation or parole, it is possible for that person to be held in custody for months or even years while awaiting trial. A meaningful preliminary hearing at which the Commonwealth is required to present actual witnesses is an important check on the ability of the government to detain people for extended periods of time without evidence.

The rules do, however, continue to allow some hearsay at the hearing. Generally, the amount of hearsay that the judge will permit the Commonwealth to introduce really depends on the judge. In some counties, many of the magistrates will let the Commonwealth proceed entirely or almost entirely on hearsay by allowing the assigned detective to testify to what the other witnesses told him or her. In Philadelphia, the judges typically require the prosecution to introduce live witness testimony from the complaining witness or actual eyewitnesses to the alleged crime. This split between the procedures in the counties and in Philadelphia will likely narrow due to the recent Supreme Court decisions in McClelland and Harris, but some differences will probably still remain.

Even in Philadelphia, the Pennsylvania Rules of Criminal Procedure clearly permit the prosecution to introduce ownership and non-permission testimony through the use of an "ONP Form" or through testimony from one of the investigating officers. For example, if the defendant is pulled over in a stolen car, the Commonwealth may proceed at the ensuing Receiving Stolen Property preliminary hearing by calling only the arresting officers to testify. The Commonwealth is not required to produce the owner of the car to testify that that person owned the car and did not give the defendant permission to drive it. This is a relatively limited exception to the rule against hearsay. At trial, the Commonwealth must still call the owner of the car to testify that the car was stolen.

Additionally, because of the relatively brief nature of the hearing and its limited scope, cross examination is much more limited than it would be at trial. For example, when it becomes clear that the defense is really seeking to establish the grounds for a motion to suppress, the judge will likely rein in the questioning because the motion to suppress cannot be litigated until later. Whether the police illegally stopped and searched the defendant is sometimes not relevant to whether the defendant committed a crime. Instead, that issue must typically be litigated at the motion to suppress hearing. However, in many cases, it is possible to ask some questions of the officers about the reasons for the stop which could be helpful for the motion if the case makes it to the Court of Common Pleas. The extent to which the judge will allow defense counsel to explore the reasons for the search or the stop varies from judge to judge.

Finally, the defense may not argue that the case should be dismissed because witnesses are lying unless the testimony is truly beyond belief. Credibility is not an issue at a preliminary hearing. Instead, the judge is instructed by law to accept the testimony of Commonwealth witnesses as true because the judge is simply evaluating whether there is enough evidence for the Commonwealth to proceed to trial. The judge is not permitted to make a credibility decision as to whether the witnesses are telling the truth or the Commonwealth will win at trial. Nonetheless, there are many defenses which can still be argued and may result in the dismissal of charges. Finally, in some cases in which a video directly contradicts an eyewitness, the judge may be willing to consider credibility arguments.

Ways to Get a Case Dismissed at the Preliminary Hearing in Pennsylvania