After a person is arrested and charged with a crime in Pennsylvania, the preliminary hearing will be one of the first court proceedings in many instances. Understanding basic principles of what a preliminary hearing is in Pennsylvania will help a defendant understand what is at stake, and will help the defendant prepare accordingly.

Who presides over a preliminary hearing in Pennsylvania?

The preliminary hearing is usually held before a magisterial district judge in the Pennsylvania counties, and before a Philadelphia Municipal Court judge sitting in the Criminal Division when a preliminary hearing takes place in Philadelphia.  In some limited instances, a preliminary hearing can take place before a judge sitting in the Court of Common Pleas of the applicable Pennsylvania County.

In Philadelphia, for example, an exception to the general rule that a Philadelphia Municipal Court judge will preside over a person charged with felony offenses, and therefore, preside over the person's preliminary hearing, is when an adult is charged with a crime against a juvenile.  In such an instance, a Philadelphia Common Pleas judge presiding in Philadelphia Family Court will hear preliminary hearings in such instances.  The general rule in Philadelphia is that preliminary hearings will take place in the applicable geographic "zone" courtroom (based upon where the arrest took place in the city) at the Criminal Justice Center, located at 1301 Filbert Street, Philadelphia, PA 19107.  The Criminal Justice Center is also known as the "CJC."

Another example is when a defendant is held in the county jail in certain Pennsylvania Counties.  Preliminary hearings in Lehigh County, for example, will generally take place before the magisterial district judge in the applicable district court where the criminal case would be scheduled under normal circumstances.  When a defendant in Lehigh County is housed in the Lehigh County Jail, however, the defendant's preliminary hearing will take place in “Central Court” at the Lehigh County Court of Common Pleas, and as the name implies, a Common Pleas judge will preside over the matter.

Will the defendant appear in person at the preliminary hearing if they are jail?

It is rare for a preliminary hearing to take place without the defendant's presence in court.  An exception is if a defendant fails to appear for court (usually on multiple occasions), and the prosecution asks the judge to proceed in the defendant's absence, the judge will consider the equities, or the fairness involved in such a decision, and rule accordingly.  If a defendant is in jail and is scheduled to appear for a preliminary hearing, however, in almost all instances the defendant will be transported to court; often by the local sheriff's department.  Nonetheless, in some Pennsylvania Counties, also known as “judicial districts,” the preliminary hearing may be conducted using audio-visual communication technology.  According to the Rules of Pennsylvania Criminal Procedure, this technology may only be used for a preliminary hearing if the defendant consents.

Who will “prosecute” my case at the preliminary hearing?

An attorney for the Commonwealth of Pennsylvania will most often represent the “prosecution.”  In such an attorney's absence (in less active magisterial district courts for example), the magisterial district judge may witnesses or permit the affiant (usually the police officer) to ask questions.  If no attorney appears for the Commonwealth, the prosecuting officer, if any, usually presents the Commonwealth's case.

The defendant has a right to be present at his or her preliminary hearing and may cross-examine witnesses, inspect physical evidence offered against him or her, testify in his or her own behalf, and call witnesses on his or her own behalf (other than witnesses to the defendant's good reputation).

The issuing authority (the judge) must issue “process” as may be necessary for summoning both defense and prosecution witnesses, and all witnesses testifying at the preliminary hearing must be sworn to tell the truth or affirm to do so.  Issuing process is having a witness subpoenaed to court in most instances.

Is my preliminary hearing a “trial?”

Preliminary hearings in Pennsylvania are not trials.  Defendants should be aware that since preliminary hearing are not trials and the burden of proof is a “prima facie” case, “exculpatory” witnesses are not likely to help and calling them may help the Commonwealth prepare for the impeachment of those witnesses at trial.

What is a "prima facie" case?

A prima facie case will be established when there is sufficient cause to continue to trial; during this prima facie stage of the legal process, it is only necessary to present some credible evidence of each element of the criminal case. By contrast, successfully prosecuting the defendant during trial requires that he is guilty of each element of the crime be proven "beyond a reasonable doubt."

What is "exculpatory" evidence?

"Exculpatory" describes evidence which tends to justify or exonerate an accused person's actions and tends to show that they had a lack of criminal intent. It is the opposite of "inculpatory" evidence, which tends to incriminate or prove guilt.

The defendant and his or her attorney are entitled to make written notes of the proceedings or make stenographic or other recordings of the proceedings, including a tape recording, even when the proceedings are officially recorded by a stenographer.

Will what happens at my preliminary hearing help my attorney prepare for trial?

Because a preliminary hearing will help an effective defense attorney prepare for trial, including fashioning impeachment tools, an effective defense attorney should be aware of the need of supplying a court reporter or other means of recording when it is not supplied by the court.  In fact, although the inability of a defense attorney to obtain a transcript of a preliminary hearing is not a per se denial of due process, in certain instances, failure to do so could be viewed as failure to effectively prepare for trial.  For example, the transcript may be required to effectively cross-examine a key prosecution witness.

In Philadelphia, preliminary hearings are recorded by a court stenographer employed by the First Judicial District of Pennsylvania, the judicial body governing the Philadelphia County and consisting of the Philadelphia Court of Common Pleas and Philadelphia Municipal Court for the jurisdiction of Philadelphia.  In the Pennsylvania Counties, some magisterial district courts have digital recording technology in the courtroom, some have stenographers, and others yet have no recording capabilities and the defense attorney must arrange to have a stenographer present if the attorney would like the proceeding recorded.

A related consideration is that it is impermissible as a denial of equal protection to deny an indigent defendant a preliminary hearing transcript because of an inability to pay a fee.

Is hearsay evidence admissible at a preliminary hearing in Pennsylvania?

Although the defendant has a right to cross-examine witnesses and inspect physical evidence offered against him or her, hearsay evidence may still be admissible at a preliminary hearing to show that a crime occurred, provided the prosecution can present the actual (non-hearsay) evidence at trial.

The inadmissibility of hearsay at a preliminary hearing has limits, however.  The Pennsylvania Supreme Court has held that the testimony of a witness as to what a third party told him about an alleged criminal act was inadmissible hearsay and thus did not constitute legally competent evidence for the purpose  of establishing a prima facie case against the defendant.

Ultimately, if it is determined at trial that the Commonwealth's evidence is sufficient to be submitted to the jury, any deficiency in the defendant's preliminary hearing may be deemed harmless.

Philadelphia Preliminary Hearing Attorney | Lawyer for Pennsylvania Preliminary Hearing

The preliminary hearing is a critical stage in a defendant's criminal case.  A case can be dismissed, withdrawn, remanded to Philadelphia Municipal Court (in matters involved Philadelphia criminal charges), or held for court and therefore proceed to the Court of Common Pleas in the applicable Pennsylvania County.  Ultimately, a defendant's case can be won or lost at the preliminary hearing, and that is why the stakes are so high. 

If you or a loved one has been arrested and charged with a crime in Pennsylvania, including, but not limited to Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, or Northampton County, contact the LLF Law Firm today.