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What Happens at a Philadelphia Preliminary Hearing?


2/1/2021

After you are arrested for committing a felony in Philadelphia, one important hearing you will need to attend is the preliminary hearing. This is typically the first court listing scheduled after you are arraigned on criminal charges. At the preliminary hearing, no one will decide whether you are guilty or not guilty. The preliminary hearing judge will merely make the decision as to whether you there is enough evidence at this very early stage of the proceedings to show that you committed a crime. A preliminary hearing in Philadelphia is held at the Criminal Justice Center in front of a Municipal Court Judge and without a jury present. Once the court decides that there is sufficient evidence to establish a case against you, in legal terms, a “prima facie” case, your future court appearances will take place in the Philadelphia Court of Common Pleas.

Purpose of a Preliminary Hearing

The preliminary hearing’s purpose is to protect defendants from baseless prosecution and prevent weak cases from backlogging the court calendar. A preliminary hearing also provides the opportunity for your defense attorney to ask the judge to reduce bail if you are in custody, provided the crime you are accused of committing prohibits your release on bail. Additionally, the preliminary hearing may provide defendants with a chance to get information regarding the prosecutor’s case against you.

The Burden of Proof at a Preliminary Hearing

The preliminary hearing gives the Assistant District Attorney representing the Commonwealth the opportunity to show that there is probable cause that you committed the crime for which you have been accused. The burden of proof that the prosecutor must meet is lower than that which must be met during your criminal trial. Instead of proving that you committed a crime beyond a reasonable doubt, the prosecutor must only show that there is sufficient evidence to believe the crime was committed by you, something known as a prima facie case. If the judge finds the prosecutor has proven a prima facie case, then the charges against you will proceed. The case is then bound over to the Philadelphia Court of Common Pleas.

To meet its burden of proof, the prosecutor will call witnesses and present evidence in the same way they would at trial, and your defense attorney will have the opportunity to cross-examine any witnesses. However, because the preliminary hearing takes place only to determine whether there is probable cause that you committed the crime for which you are accused, the cross-examination is typically limited in scope compared to cross at trial. Your defense attorney will be limited to asking questions that are related to your committing the crime and any testimony brought out on direct examination. Any issues such as those related to illegal search and seizure or an illegal stop will not be litigated at your preliminary hearing. Those issues are litigated in the Court of Common Pleas after the filing of a motion to suppress.

Additionally, the judge is required to accept the testimony of the witnesses called by the prosecutor. As such, your defense attorney will not make any arguments as to the credibility of the witnesses. If the prosecutor does not present sufficient evidence to prove a prima facie case, your defense attorney will move for dismissal of the criminal charges.

Evidence: Hearsay Permitted at a Preliminary Hearing

When it comes to evidence presented by the prosecution, the Rules of Evidence that apply at a trial will not necessarily apply at the preliminary hearing. The prosecutor will be allowed to use hearsay to prove a prima facie case. The Pennsylvania Code states that hearsay is sufficient to establish any element of the crime you are accused of committing. However, the Commonwealth’s Supreme Court recently provided some limitations to this rule in Commonwealth v. McClelland.

In McClelland, the court overturned its previous ruling in Commonwealth v. Ricker that hearsay alone was sufficient to establish a prima facie case at a preliminary hearing. Now, a defendant cannot be held for court based on hearsay alone because the defendant has due process rights to a preliminary hearing that does not consist entirely of hearsay. So, while hearsay is still permitted at the preliminary hearing to establish a prima facie case, there must be other evidence in addition to the hearsay testimony.

Timing of a Preliminary Hearing

Your preliminary hearing will typically be scheduled between three and ten days of your first arraignment unless postponed or continued. A continuance may be requested and granted for cause shown. Upon a decision to request a continuance, the request should be made at least 48 hours before the preliminary hearing is to be conducted.

Waiver of a Preliminary Hearing

While you should not waive your preliminary hearing absent some benefit offered to you in return by the prosecutor, you have the right to do so as the defendant. However, your preliminary hearing should be waived only with the approval and in the presence of your defense attorney. Additionally, the judge will ask you questions to confirm your knowledge of your rights and that you agree to the waiver knowingly, voluntarily, and intelligently.

Waiver of a preliminary hearing is required for you to qualify for an Intermediate Punishment (IP) program and is often required for you to apply to an Accelerated Rehabilitative Diversion (ARD) program. An IP program is typically available in lieu of jail time to those who have committed nonviolent crimes. An ARD program allows first-time offenders of nonviolent crimes the chance to expunge their criminal records upon successful completion of the program. If you are conditionally accepted and ultimately not permitted to take part in the program, you will be entitled to a preliminary hearing.

Do You Have Questions Regarding Your Preliminary Hearing?

If you have questions about your preliminary hearing or need representation in a criminal case in Philadelphia, it is important to get a criminal defense attorney involved as soon as possible. The law firm of Wimmer Criminal Defense Law is here to represent you. Criminal defense attorney Lauren Wimmer understands the effect that a criminal charge has on your life and will work for a dismissal of your case or a lesser sentence. Call Wimmer Criminal Defense Law or fill out the online form to schedule a free and confidential consultation with attorney Lauren Wimmer today.