Anyone who faces a misdemeanor or felony charge in Pennsylvania has an absolute right to a preliminary hearing. At the “prelim”, the Commonwealth’s goal is to present enough evidence to convince the magisterial district judge that a crime was committed and that the accused probably committed that crime. We lawyers say the Commonwealth has to make out a “prima facie” case. The prelim is not about proving guilt beyond a reasonable doubt. Its main purpose is to safeguard an accused person’s right against illegal arrest and detention. As skilled defense attorneys know, however, the prelim serves other functions, as well.
Because the prosecution’s burden of proof at a prelim is so low, the presiding judge upholds the charges in most cases. The charges are then “bound over” to the county court of common pleas. Knowing their case is almost certainly going to be bound over, many defendants elect to waive their preliminary hearing. That is, the accused, while not admitting guilt, concedes that the prosecution has met its extremely low burden of proof.
Sometimes, it makes it makes sense to waive a prelim. A waiver, for instance, in exchange for the prosecution withdrawing some of the charges may be a good idea. But the decision to waive should not be taken lightly. Even if an accused person or his attorney know the charges will be bound over, the smart play is to have the hearing and make the Commonwealth put on its case. A skillful defense attorney will use the hearing to gather information and evidence that may be vital to mounting a successful defense when the case reaches the court of common pleas.
While it sometimes is a good idea to waive a hearing in exchange for a real benefit to the defendant, it is almost never a good idea to waive a hearing simply because the case will almost certainly be bound over. A number of counties in central Pennsylvania hold “central court” to dispose of preliminary hearings. At central court, the judge will ask each defendant whether he wants to waive his preliminary hearing or actually have that hearing (usually at a later date.)
In some counties, such as Cumberland County, defense attorneys often get to talk to the prosecution about the case, examine the police report, speak to the arresting officer, and discuss modifying or dropping certain charges. The defendant and his or her attorney, then, can make an informed decision about waiving the prelim or not waiving.
The situation may be quite different, however, in other counties. In Perry County, for instance, the arresting officers are not present at central court, the prosecutors usually don’t share any information with the defense, and it’s virtually unheard of for a charge to be withdrawn. Most individuals who waive a preliminary hearing at Perry County central court give up their rights but get absolutely nothing in return. For that reason, alone, I usually advise my clients to let me demand a full preliminary hearing. Even if all of the charges are eventually bound over, I have at least gotten to test the prosecution’s case and previewed the evidence against my client. To me, it makes no sense to waive a prelim for no reason. Yet that is just what many accused individuals do. Whether you’re charged with a crime in Perry, Dauphin, Cumberland, Juniata or any other county, you should never make the decision to waive a prelim or have a prelim without the advice of a knowledgeable criminal defense attorney.
If you are charged with a crime, feel free to set up a free consultation with me. I will confidentially assess your case and answer your questions without any obligation.
Sean A. Potter
The Law Office of Sean Potter, PC