preliminary hearing

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.

Yes, Preliminary Hearings are Important

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.  (more…)

Marijuana DUI Arrest + No Probable Cause = Charges Dropped

Recently, a client came to my office after police charged him with a controlled substance DUI. According to the lab and police reports, he had 12 nanograms of a marijuana metabolite in his blood within two hours of operating a motor vehicle. In Pennsylvania, a driver with 1 or more nanograms of THC in his or her blood can face a DUI conviction.

After the client gave me a detailed account of the events before and after his arrest, I realized the police did not have — and could not have had — any reason to stop his vehicle. Quite simply, the officer did not have any reasonable suspicion that my client was violating the rules of the road or any other laws. Nevertheless, he was arrested and charged.

Immediately before the preliminary hearing, though, the Commonwealth’s case began to fall apart. I was able to demonstrate to the arresting officer and the more senior officer she brought along for support that the stop of my client was totally illegal. The end result? The police officer withdrew the criminal charges. Case closed.

As always, it’s important to realize that no two criminal cases are alike. No attorney can guarantee a result. However, as a knowledgeable, experienced criminal defense attorney I welcome the opportunity to deliver the best results possible to all of my clients. If you are facing DUI or other criminal charges in central Pennsylvania, call my office today. I offer new clients a no-cost consultation and case evaluation. Call the Law Office of Sean Potter, PC at 717-582-0400 to find out how I can help you.