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What is a Preliminary Hearing?

Criminal Law

A Preliminary Hearing is a hearing in a criminal case that is held before a Magisterial District Justice or a Municipal Court Judge (in Philadelphia) shortly after an individual has been charged with a crime and has received a summons in the mail or has been arrested for a crime. If the person has been arrested, the Preliminary Hearing will take place after the Preliminary Arraignment. If the person has not been arrested, the Preliminary Hearing will likely take place at the same time as the Preliminary Arraignment.

What is the purpose of a Preliminary Hearing?

The purpose of a Preliminary Hearing is very limited. It is only held to determine whether or not a crime may have been committed and whether the defendant may have been involved in that crime. The burden of proof for the Commonwealth is very low. All that the Commonwealth must prove is a prima facie (“at first sight”) case or, in other words, to prove that, on the mere face of the evidence, it looks like a crime may have been committed.

What a Preliminary Hearing is Not?

A Preliminary Hearing is NOT a trial. The Court will not find an individual ‘guilty’ or ‘not guilty’ at a Preliminary Hearing. The Court will only determine if there is sufficient evidence to hold a case for trial.

What will happen at the Preliminary Hearing?

At a Preliminary Hearing, the Commonwealth will present a very simplified version of the case against the defendant. The Commonwealth will call witnesses, which may include police officers, alleged victims or others who may provide information that the Commonwealth believes is important for the Court to consider. Through an attorney, the defendant has the right to cross-examine these witnesses. At the conclusion of the Preliminary Hearing, the Magisterial District Justice/Municipal Court Judge will make a decision as to whether the Commonwealth has presented sufficient evidence to create a belief as to whether a crime may have been committed and whether the defendant may have committed that crime. The Magisterial District Justice/Municipal Court Judge will make a decision as to whether the Commonwealth has met its burden for each crime charged against the defendant. If the Court decides that the burden has been met, then the case will be held for trial and transferred to the Court of Common Pleas for the county in which the Preliminary Hearing was held.

What are the defendant’s rights at a Preliminary Hearing?

At a Preliminary Hearing, the defendant has the following rights:

  1. The right to be represented by counsel;
  2. The right to confront witnesses against the defendant through cross-examination. (This right may, unfortunately, be severely limited in certain cases);
  3. The right to remain silent;
  4. The right to make a recording of the proceedings (usually through the use of a court reporter); and
  5. The right to testify in one’s own defense.

*NOTE – Due to many factors, including the exceptionally low burden that the Commonwealth has to meet and the fact that credibility is not an issue at a Preliminary Hearing, it is not often recommended that a defendant present any evidence at a Preliminary Hearing, including testifying in his or her own defense. Each case, however, is different and each defendant should consult with the attorney handling his/her case to determine if it would be appropriate to present evidence in his/her particular case.