One of the most important but often misunderstood concepts in the field of criminal law is hearsay. A countless number of judicial decisions, law school case studies, legal treatises and other secondary sources dedicate a considerable amount of time to this topic. Law Students, practicing attorneys and judges continue to debate nuances which comprise exceptions to the “Hearsay Rule” and it is a widely dreaded topic on a rite of passage for all attorneys—the bar exam.
Hearsay is an out of court statement offered for the truth of a matter asserted by the litigant attempting to introduce it into evidence. Generally, hearsay is not admissible in any court of law. It is considered inherently unreliable given that the speaker was more than likely not under oath and not subject to the opposing party’s cross examination. While there are a number of exceptions to the Hearsay Rule, the purpose of this short article is to explain the admissibility of hearsay at a preliminary hearing vs. its admissibility at trial.
In a nutshell, trial determines guilt or innocence and a preliminary hearing determines if the accused is connected to the crime. The purpose of a preliminary hearing is not whether there is sufficient evidence to prove that the accused committed a crime beyond a reasonable doubt. Proof beyond a reasonable doubt is the evidentiary standard at a criminal trial. The evidentiary threshold at a preliminary hearing is far below the criminal trial standard.
Many practitioners equate the preliminary hearing standard to the civil evidentiary standard of preponderance of the evidence (aka the weight of the evidence.) The common example is the scales of justice. The heavier scale is the successful party. The term “connection” is often used however to articulate the extremely low burden the prosecution must meet at this proceeding. Procedurally, a trial follows a preliminary hearing and so it is logical that a lower standard of proof applies to the preliminary hearing.
While most believe that hearsay pertains solely to verbal statement made outside of court, the majority of legal argument around the admissibility of hearsay evidence centers on documents such as expert reports or records. The prosecution and defense often use experts during their case presentations (aka case in chief) but those reports are usually not an issue during a preliminary hearing where the standard is simply a “connection.” The preliminary hearing of a homicide, for example, is concerned with connecting the accused to the victim’s death and not the admissibility of the ballistics report pertaining to the alleged murder weapon. While defense counsel could attack the ballistics during the hearing, a judge upon hearing the testimony of an eyewitness would find the ballistics argument irrelevant for the purposes of the preliminary hearing. The eyewitness would establish the connection and so the case would proceed to trial where defense could obviously explore and attack the ballistics report along with other issues such as self-defense, witness credibility and alternative defense theories.
DUI/DWI cases however have caused significant controversy given that the “connection” to the crime is established often through the expert. The report of the expert provides information of the accused Blood Alcohol Level (BAC) and the scientific method used to determine it. Defense attorneys have argued that a DUI prosecution requires the testimony of the expert and that the introduction of the report without the testimony is inadmissible hearsay even with the lower evidentiary standard at the preliminary hearing. The defense argument is that the “connection” is the report which allegedly indicates intoxication/impairment which is the foundation for the charged offense. These arguments are usually made when the prosecution cannot present any police or civilian testimony of impairment. Observation testimony would more than likely satisfy the “connection” standard as it would the scientific report a potential trial or pre trial issue.
Despite these defense arguments two Pennsylvania Superior Court decisions (Comm v. Branch (1982) and Comm v. Rick (1976)) continue to stand for the proposition that hearsay evidence is admissible for the purposes of a preliminary hearing. The only exception to this common law rule is the clear inability to produce the speaker at trial.
Despite the low evidentiary threshold at a preliminary hearing, the proceeding itself remains critical to your success as a criminal defendant. The testimony provided at the preliminary hearing form the basis of most pre-trial motions as well witness impeachment. Few cases are dismissed following a preliminary hearing but a strong defense argument often demonstrates the weaknesses in a case. Since the burden of proof at trial is much higher (beyond a reasonable doubt) clear weaknesses in the prosecution’s theory could substantially reduce the severity of the criminal charges against a defendant and potentially a complete voluntary withdraw of the charges.