Is there a constitutional right to a preliminary hearing in Pennsylvania?

In my previous blogs I have often discussed the topic of preliminary hearings. Most of my readers understand now that a preliminary hearing is an initial evidentiary hearing to determine if a Prima Facie case exists against a criminal defendant. A preliminary hearing isn’t a trial, but the burden remains on the Commonwealth to establish this level of evidence if it intends on prosecuting a person for any offense in the Commonwealth. Preliminary hearings are important, especially in cases involving drugs, illegal guns, and even drunk driving charges (DWI/DUI). An interesting point to understand is that there is no constitutional right to a preliminary hearing in Pennsylvania; it is rather a criminal procedural requirement.  This is different from New Jersey criminal procedure which operates strictly on the grand jury system.

What is it and why the hearing is important?

A prelim is the defense’s first opportunity to evaluate the strength of the prosecution’s case. These hearings are also an opportunity to lay the groundwork for Motions to Suppress Evidence and Motions to Quash (Habeas Motion). It’s important to keep in mind however that there is no constitutional right to a preliminary hearing and there are situations where the prosecution may attempt to bypass this important proceeding.

While many believe that a preliminary hearing is simply a requirement to proceed to trial, it’s actually a hearing to protect an individual’s right against unlawful arrest and detention. The Pennsylvania Rules of Criminal Procedure do allow the prosecution to file a petition to proceed without a preliminary hearing if it can establish that the hearing is unduly burdensome and would add “superfluous layer of delay on the judicial process”. If the prosecution (District Attorney) wants to proceed in this way, it must file a petition with the Court of Common Pleas in Pennsylvania to do so.

The Pennsylvania Rules of Criminal Procedure and Preliminary Hearings

There is no constitutional right to a preliminary hearing in the Commonwealth. Pennsylvania Rule of Criminal Procedure 565 allows the prosecution to file Bills of Information without a preliminary hearing if the hearing would simply reiterate a Prima Facie case which was previously articulated through the defendant’s confession, an indicting grand jury’s presentment, or some other prior hearing before a judge.

Keep in mind that the prosecution may proceed without a preliminary hearing if it begins its prosecution with an indicting grand jury instead of an investigating grand jury. Pennsylvania Rule of Criminal Procedure 206 allows the prosecution to do this if it can establish witness intimidation has occurred, is occurring, or is likely to occur.

Conclusion

If you’re charged with a criminal offense in Pennsylvania, your criminal defense lawyer should never underestimate the power of a preliminary hearing and its effect on your case. You should only considering waiving the hearing if you are to receive something in exchange (a good plea offer or a diversion program like ARD). Waiving the hearing is not otherwise advisable and the DA shouldn’t be allowed to bypass this procedural requirement without opposition. For more information visit the free download section.  

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