What is a Preliminary Hearing and Should You Waive the Hearing?
I’ve written previous articles on preliminary hearing strategies specifically those involving illegal guns, drugs and violent felonies. Remember that a preliminary hearing is the initial evidentiary hearing where the burden of proof is on the Commonwealth (prosecution) to prove that a crime occurred and that the accused was more than likely the person who committed the crime.
Don't underestimate its importance in your criminal defense even though its not a trial. Frequently assistant district attorneys expect defendants to waive these hearings in exchange for an agreement to lower bail, dismiss minor charges that were added to the lead charge, or simply gain some mitigation for the purposes of an eventual plea. I've met some however who for some reason expect defense lawyers to waive the hearing for nothing in exchange at all; that is a huge mistake
There are situations where waiving a preliminary hearing makes strategic sense but this is only after a careful evaluation of the advantages and disadvantages of going forward with it. If your criminal defense lawyer is advising you to move forward with the hearing his or strategies should focus on the following 3 points:
1. Collect information
This hearing is your first chance to evaluate the strength of the prosecution’s case usually in the form of one of their strongest witnesses. Most experienced judges won’t allow a defense attorney to ask questions about possible illegal search and seizure issues, or questions meant to impeach the credibility of a witness. These types of questions are for pre-trial and trial but that doesn’t mean that your defense lawyer should ignore them completely. During the hearing your attorney should collect information about the lighting conditions, the witness’s position in relation to the incident, the length of the observation and what, if anything, was happening around the witness during the observation. While questions that focus on possible violations of your right against illegal search and seizure will draw an objection, it doesn't mean that your lawyer shouldn't at least try to ask the question.
2. Ask only leading questions of the prosecution’s witnesses.
The number one rule of trial advocacy is to never ask a question in which you don't know the answer. Preliminary hearings are for the prosecution to present its prima facie case against the accused and not to establish guilt. Your defense attorney, however, must use this opportunity to lock the prosecution’s witnesses into an answer and there is no better way of doing it than leading questions. Leading questions, unlike open-ended questions (aka non leading) imply the answer in the question itself. For instance, a leading question is something like, “it was raining out, correct?” A non-leading question is “what was the weather like on the day in question?” Leading questions allow your attorney to control the witness’s response and doesn’t allow the witness to add further details which could hurt your case.
3. Argue what wasn’t argued.
The Commonwealth's burden at a preliminary hearing is very low and challenging their argument will do little if anything to cause the judge to dismiss or downgrade charges. It is much stronger to argue what the prosecution didn’t present. In a drug case, for instance, where the charge is possession with the intent to deliver (PWID) your attorney should focus on the lack of observed sales, lack of drug sale paraphernalia (bags, scales, etc.) and the absence of money. On a gun or firearm charge your attorney should look at the location of the gun if the person is charged with VUFA 6106. This particular charge requires the gun be out of the person’s home or place of business. On a drunk driving or DUI charge your criminal defense lawyer should look at the length of the officer’s observation if you are charged with general impairment under Section 3802(a)(1).
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