The preliminary hearing is a critical but often frustrating phase for defendants going through the criminal-justice system. While on the one hand the preliminary hearing can be a prime opportunity to resolve a case from going any further at the expense of the defendant’s reputation and pocketbook, as I explain to my clients (more times than not), the preliminary hearing is the prosecutor’s “dog and pony show,” where the stage is set in favor of the Commonwealth.
Generally, the criminally accused have a hard time understanding this. Defendants value their presumption of innocence and they are familiar with the concept of “proof beyond a reasonable doubt,” so there is a disconnect when defendants learn how “the rules” of the preliminary hearing are stacked against them early on. For example:
- The prosecution’s burden of proof to get beyond the preliminary hearing is very low. The prosecution need only establish a “prima facie case,” not guilt beyond a reasonable doubt.
- The magistrate, by law, is to view all of the evidence “in the light most favorable” to the prosecution. In other words, the magistrate is give the prosecution the benefit of the doubt, which by necessity makes credibility determinations and the defendant’s own version of events rather meaningless.
- The prosecution, presently, can satisfy their burden of proof based upon hearsay alone, which sometimes results in an accuser not needing to show up to testify.
Yet, for all of these prosecution-friendly rules, perhaps none are more surprising to a defendant than the rules that permit, after a successful preliminary hearing, for the prosecution to either (1) refile dismissed charges, or (2) change the nature of the charges once they are held for court. Consider those rules.
(A) When charges are dismissed or withdrawn at, or prior to, a preliminary hearing, or when a grand jury declines to indict and the complaint is dismissed, the attorney for the Commonwealth may reinstitute the charges by approving, in writing, the re-filing of a complaint with the issuing authority who dismissed or permitted the withdrawal of the charges.
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(A) After the defendant has been held for court following a preliminary hearing or an indictment, the attorney for the Commonwealth shall proceed by preparing an information and filing it with the court of common pleas.
(B) The information shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains:
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(5) a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint;
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Considering all of this, therefore, those facing criminal charges should be keenly aware of two things: (1) the early part of a criminal case is an uphill battle, and (2) having counsel during this stage is wise to strategically avoid surprises later on.