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What’s a Preliminary Hearing all about?

November 11, 2011

2. Law, 4. Arrest, 5. Pre-Trial

What’s a Preliminary Hearing all about?

Let’s start with the first section of the 5th Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury

The flow from investigation to arrest begins with the cops and then includes the DA – and therein lies the problem.  Both groups make their decisions behind closed doors, and both groups have a vested interest in “solving” crime.  Their jobs depend on it.  This conundrum is why the US Constitution has the grand-jury clause.

Here’s the drill.  Yes, a grand jury operates behind closed doors.  They do not, however, have any horse in the race.  They don’t care one way or the other if a person is charged with a crime.  All they want is for the DA to make her case before keeping some guy either in jail or with a charge hanging over his head for the months it would take to get to trial.  The grand jury is both detached and neutral.  The case is presented to them, and they decide whether to issue an indictment.  If they decline, the arrest (if any occurred) is withdrawn.

Grand juries are expensive.  Lots of people and space involved.  You gotta buy them lunch.  Pennsylvania and a few other states use an alternative system – a Preliminary Hearing presided over by a Magistrate Judge, the same level judge that hears traffic tickets and other minor offenses. He’s there anyway; may as well use him.  SCOTUS ruled quite a while ago that using a Preliminary Hearing in lieu of a grand jury was perfectly fine – the underlying intent of the 5th was to ensure that a check was in place outside the cops and DAs.  In fact, I believe that the Preliminary-Hearing system is better than the grand-jury system because PHs are held in open court.  Anyway …

You got arrested.  Pretty quickly after that you went in front of a Magistrate to set bail.  You also got a scheduling notice of your Preliminary Hearing.  It must be scheduled no later than 10 days after your arrest.  You scramble to get an attorney.  Relax – if you’re on the street, your attorney will just reschedule the PH and slow things down.  If you’re wearing oranges, you may want to consider playing through as scheduled – just keep the train moving provided you all have adequate time to prepare.

The problem is that a Preliminary Hearing is not a mini-trial.  Practically nothing you or your witnesses say is important unless it corrects some huge mistake like you being able to establish without question that you were nowhere near the crime.  The testimony of a priest would help.  Beyond that, what you’ll see at the PH is the bare minimum of the DA’s case with cross-examination by your attorney.  Note also that the arresting officer can take the DA’s place at the PH – it means nothing beyond recognizing that your charges are probably not felonies and the case is a slam dunk.

The DA (or AO) merely needs to establish a prima facie case.  That’s a case against you merely on its face – yeah, you can think of it as lacking depth.  The entire process is just to find out if more likely than not a crime was committed and more likely than not you did it.  Pretty weak.  Even worse, the DA can use hearsay evidence – which means that you’re crossing a witness that says they heard someone else say something!  As a general rule, hearsay is not admitted at trial because it (in part) defeats your constitutional right to confront your accusers and it’s unreliable.  Yet here we sit at the PH getting pounded by it.  Go figure.

Here’s your attorney’s agenda at the PH.  The DA puts a witness on the stand.  You learn about some of their evidence – that’s a good thing.  But during cross, your attorney is going to watch how the witness responds.  We all know some cops are dicks (even though most are not).  When they prance through direct like they’re on Dancing with the Stars (which I have never watched) and then turn into some WWF bad-guy wrestler on cross, that’s a great piece of information.  Juries love to see witnesses whose behavior suggest their meds aren’t quite optimized.  I had a cop once that was wound so tightly he couldn’t help but watch my pencil as I tapped it on the table.  It pissed him off.  I walked out of that PH feeling like it was my birthday.  He was just as unhinged at trial.  Moron.  Another witness may be (but this is rare at a PH) the crime victim.  How they present themselves emotionally is important to designing a good cross at trial – anger, tears, or neutral are important pieces of information.

The other important aspect of a PH is that the testimony is under oath.  Yes, you want to pay for a stenographer to get a transcript if your charges could put you behind bars for a few or more years.  At trail, when your attorney asks the cop a question on cross and notices a difference in the answer – an important one – between then and the answer he got at the PH, it’s like getting a Trout Stamp on your fishing license … it’s open season.  Without the transcript, your attorney can assert that the answer was different, but he can’t prove it.

Some cases fall at the PH.  More often, some charges fall at the PH.   Most often, all of the charges are “bound over for further action.”  That is exactly like a grand jury issuing an indictment (except it isn’t an indictment … you really don’t care about the distinction … ain’t important).

Chances are that plea deals were discussed before the PH and perhaps afterward.  Your attorney will tell you about every offer made.  It doesn’t matter if the attorney thinks it’s a bad offer – it’s your life so you decide, but you will get advice and should listen to it.  In weak DA offices, the closer you get to trial the sweeter the offer.  In strong offices, the first offer is the best.  Your attorney will know the flavor of the local talent.

Assume the charges are bound over.  The next step is your formal Arraignment (although sometimes a motion to reduce bail creeps in).   Nothing much happens until the Arraignment, which can be about a month out.  When the Arraignment happens, then all sorts of clocks start ticking – evidence is exchanged, motions to suppress fly … all the good stuff before trial.

But concerning a Preliminary Hearing, don’t get wrapped up in it.  It’s more trial prep than substance.  It is, however, a very important time to either plead out or begin serious trial prep.  Don’t go in without an attorney.

One final note.  You can waive the Preliminary Hearing.  Just sign the papers.  The effect is the same as if it were held and the Magistrate bound over the charges.  Why would you waive?  Minimizing press coverage is a good reason, although this is important rarely (I have no problem letting the press contaminate the jury pool).  Some DAs are kinder on plea offers if they don’t have to prep for a PH.  But if you’re going to trial, the Preliminary Hearing is an important event – hold it.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde


  1. I got a Public Defender. That’s bad, right? Slow down, Brewster | Pennsylvania Criminal Law - December 5, 2011

    […]  Some stages are more important than others.  For example, follow me here … I wrote about Preliminary Hearings.  Important stage; no issue.  However, preparation for a PH can be done without hours and hours […]