The second stop in the journey through the court system is Central Court, where the accused is entitled to a Preliminary Hearing.
The Preliminary Hearing
The Preliminary Hearing serves a very important gatekeeping function. A Magisterial District Judge, the lowest elected judge in the counties, conducts the hearing. The standard of proof is prima facie – on its face – and only requires a preponderance (meaning more likely than not) of evidence to reach. This is your first opportunity to test the evidence against you. Most prosecutors will expect you to waive your hearing, but you are not required to.
At a Preliminary Hearing, the prosecutor will call witnesses to testify and present evidence to show two things: 1) that it is more likely than not that a crime was committed; and 2) that “someone” is more likely than not the accused. After each witness testifies, the accused – the defendant – has the right to cross-examine the witness to test the truth of what is being presented.
One key distinction between a Preliminary Hearing and other proceedings, including trials, is that credibility is not an issue. By rule, the judge is not allowed to consider the credibility of witnesses and must take all evidence presented by the prosecution, no matter how spurious, questionable, or outright laughable, as truth. (This can be remedied in later proceedings, but it is a major impediment to dismissing nominal cases at an early stage).
Other rights of the accused at a Preliminary Hearing include the right to call witnesses, offer evidence, and testify himself, although most attorneys never do this. If credibility were an issue, it would make sense to call witnesses. As the rules stand, however, any contradictory evidence would simply be ignored by the judge.
The accused also has the right to have everything recorded by a court reporter. In Centre county, this happens automatically, although in some other counties it must be requested.
Waiving the Preliminary Hearing
Most people do not have a Preliminary Hearing. Instead, they waive it, agreeing that there is enough evidence to move the case forward into the Court of Common Pleas. Your better attorneys will not agree to waive a Preliminary Hearing without first receiving something in return. That “something” could be an agreement to modify bail to have his client released from jail, a specific written plea offer, or acceptance into the Accelerated Rehabilitative Disposition (“ARD”) program. By waiving the Preliminary Hearing, a defendant also gives up the right to later challenge the evidence against him through a Petition for Writ of Habeas Corpus.
Accelerated Rehabilitative Disposition (“ARD”)
ARD is a court diversionary program designed to give first-time offenders a second chance and a clean record. It consists of a period of supervision – typically twelve months – which includes counseling, classes, community service, and restrictions on drug and alcohol use as appropriate. ARD Participants must also refrain from all criminal activity while in the program.
Successful completion of the ARD program allows the accused to return to court to have his or her case dismissed and record expunged. Expungement includes the destruction of nearly every trace of the offense. Court and District Attorney files are destroyed. The County Booking Center, PennDOT, the State Police, local police, and the FBI are required to destroy all copies of photographs and fingerprints. Essentially all government records are deleted. The only exception to this is in the case of a DUI: a record of the ARD placement date is kept for ten years to be used in calculating a harsher penalty if the subject ever commits another DUI in the next decade.
What is not Expunged?
Private records and databases, newspapers, and internet search sites and web pages are all beyond the reach of the court for practical and Free Speech/Constitutional reasons.
One final event may happen in Central Court: a bail hearing. Many people are incarcerated prior to their Preliminary Hearing to guarantee their return to court. Reasons for this detention include the seriousness of the charges or the accused’s lack of ties to the local community. At a bail hearing, an attorney can argue for a reduced or modified bail amount, or for some other remedy to assure the court that a defendant will return for future court appearances.
The purpose of bail is set forth in Pennsylvania Rule of Criminal Procedure 523:
Rule 523. Release Criteria
(A) To determine whether to release a defendant, and what conditions, if any, to impose, the bail authority shall consider all available information as that information is relevant to the defendant’s appearance or nonappearance at subsequent proceedings, or compliance or noncompliance with the conditions of the bail bond, including information about:
(1) the nature of the offense charged and any mitigating or aggravating factors that may bear upon the likelihood of conviction and possible penalty;
(2) the defendant’s employment status and history, and financial condition;
(3) the nature of the defendant’s family relationships;
(4) the length and nature of the defendant’s residence in the community, and any past residences;
(5) the defendant’s age, character, reputation, mental condition, and whether addicted to alcohol or drugs;
(6) if the defendant has previously been released on bail, whether he or she appeared as required and complied with the conditions of the bail bond;
(7) whether the defendant has any record of flight to avoid arrest or prosecution, or of escape or attempted escape;
(8) the defendant’s prior criminal record;
(9) any use of false identification; and
(10) any other factors relevant to whether the defendant will appear as required and comply with the conditions of the bail bond.
(B) The decision of a defendant not to admit culpability or not to assist in an investigation shall not be a reason to impose additional or more restrictive conditions of bail on the defendant.
At the conclusion of the Bail Hearing, the Magisterial District Judge will rule on the requested modification. If new bail is set, a new Bail Bond sheet will be printed outlining the new bail requirements.