Month: July 2015

The Pennsylvania Preliminary Hearing: Witnesses Optional (well almost).

Pennsylvania’s legislature and courts target the rights of those accused of crimes with all the ferocity of a coyote chasing down a fawn. In the recent case of Commonwealth of Pennsylvania v. David Edward Ricker (2015 PA Super 153), the Superior Court decisively ruled that the prosecution need not present any actual witness testimony at preliminary hearings. At the preliminary hearing, the Commonwealth’s task is (and has been) to make out a prima facie case that a crime occurred and that the accused is the culprit. While the Commonwealth still has to do just that, the Superior Court just made the job easier.

Prima facie does not mean proof beyond a reasonable doubt. One way of thinking about is to ask yourself whether a jury could convict the accused of the crime charged if that jury were to believe all the evidence the prosecution presented. If your answer is yes, then the prosecution has made out a prima facie case and the magisterial district judge “binds” over the charge or charges. For the Commonwealth, making out a prima facie case, in most situations, has never been a particularly difficult task. So why is the Commonwealth’s job even easier now?

Well, instead of having to present testimony by complaining witnesses and other fact witnesses, the Superior Court has ruled that the prosecutor only has to produce the witnesses’ out of court statements, which is to say “hearsay”. That means a police officer can simply tell the judge whatever the alleged victim told him or her. No need for the actual victim, or alleged victim, to testify. This also means, of course, that the accused has no right to confront his accusers at a preliminary hearing. Recent changes in the Pennsylvania Rules of Criminal Procedure made it all but inevitable that hearsay, alone, would eventually be enough for the prosecution to carry the day at a prelim. The Ricker case simply removed all doubt.

Prelims, though, are still important. A skillful criminal defense attorney will use every opportunity to build or bolster a defense. Even a preliminary hearing consisting only of hearsay testimony can provide a valuable opportunity for the lawyer to gauge the strength of the Commonwealth’s case, to test the evidence, to develop suppression issues, and to spot weaknesses. And, because the rules permit the criminal defendant to call witnesses on his or her behalf, it may be possible for the defense attorney to call the witnesses the Commonwealth didn’t want to call.