THE CRIMINAL PROCESS: PART II – PRELIMINARY PROCEEDINGS

The first proceeding, after a criminal complaint is filed or an is arrest made, is the preliminary arraignment.  Prior to this hearing there will probably be an interview with the Bail Agency to assist the judge in setting bail.  At the preliminary arraignment the charges will be given to you and bail will be set.  Depending upon the circumstances, your bail may be Release on Recognizance – ROR (meaning you will not have to pay money to be released from jail before any hearing)  or cash bail.

There are factors which determine setting bail.  These include a prior criminal record, the seriousness of the crime, your contacts with the community (Do you live and work in the area), family contacts, and whether or not you have a job.  The bail amount may seem large, but still be ROR (no cash needed).  For example, the bail may be set at $50,000.00 ROR.  This means that you don’t have to “pay” $50,000.00. However, if you fail to appear in court, commit another crime, or violate any conditions of bail, i.e. not staying away from the victim, you will go to jail and the bail will be $50,000.00 in cash.

On the other hand, bail may be set at $50,000.00 – 10%.  This means you need $5,000.00 to be released.  If you violate your bail, then you will go to jail and forfeit the $5,000.00 that was paid.  In the event that a defendant needs to lower his bail, he/she can appeal the magistrate’s bail decision to a county judge.

If possible, it is recommended that you have an attorney at the preliminary arraignment.  The attorney can argue on your behalf why bail should be ROR or some smaller amount.  And, practically speaking, if the judge sees that you have hired an attorney, he may be more confident that you will obey bail conditions and appear at your hearings.  Therefore, the judge will then be more likely to release you on ROR or a small bail amount.

At the preliminary arraignment a court date will be set for your preliminary hearing.  That hearing usually occurs at the courthouse where your preliminary arraignment took place in 3-10 days.  It is imperative you have an attorney with you at the preliminary hearing.  If you cannot afford an attorney you must go to the Public Defender of that county and apply for a lawyer free of charge.  Your economic circumstances will dictate if you qualify for a Public Defender.

The preliminary hearing is to determine if there is a prima facie case against the defendant.  I usually tell my clients that the question before the court is, “Could you be guilty of the offense?”  (At trial the question will be whether guilt is proven  beyond a reasonable doubt.) Given the low standard of evidence at the preliminary hearing, the answer is usually, “Yes, you could be guilty.”  Witnesses must testify and your attorney is permitted to cross examine those witnesses.  While a defendant is permitted to testify, this rarely happens.  Credibility at this hearing is not an issue.  Rather the judge, after hearing the testimony, asks himself, “If that witness for the District Attorney is telling the truth, could the defendant be guilty?”  A defendant testifying would only be hurting his case since he would be revealing his defense or may say something that ends up being used against him.  If the judge finds that a case has been made by the District Attorney, the matter is then transferred to the county court for trial or plea and sentencing. Normally bail remains the same.

Until recently, the District Attorney could make its case at this hearing on hearsay evidence alone (at a formal trial this could not be done).  However, a recent Pennsylvania Supreme Court case has held that no defendant could be held for trial on hearsay testimony only. Hearsay is evidence of a statement made out of court and not made by the witness testifying.

Sometimes, a defendant, on advice of counsel, will waive the hearing.  The effect of the waiver is the same as if there had been a hearing and the case were held for trial at the county courthouse.  A waiver usually occurs if the District Attorney agrees to give the defendant something in return.  For example, a defendant, who is currently in jail would have his/her bail lowered so he/she could be be released from prison if he foregoes the hearing.  A waiver is not an admission of guilt.  A defendant should only waive the hearing on advice of his/her lawyer. If the case is held for trial by hearing or waiver, a formal arraignment date at the county courthouse is set.  It is usually 3-4 weeks after the preliminary hearing.

In terms of legal fees, sometimes the attorney will quote a fee for the preliminary hearing and, if the case is held for county court quote a fee for work done at the county court level.  Or, the attorney may set a fee for the entire case before the preliminary hearing.

If you have any questions regarding this please feel free to call Lawrence R. Dworkin at 610-357-3506 or email at ldworkin@ldworkinlaw.com

The above is a general interpretation of the law.  Each case is different and the above may not apply to your situation.  Again, if you are arrested for any offense consult an attorney as soon as possible.