Should I Waive My Preliminary Hearing?

The preliminary hearing is a crucial step in a criminal case in Pennsylvania.  Before the preliminary hearing, the police and district attorney are in control of the case.  They decide whether and when to file charges, and also which charges to file.  The preliminary hearing is the first chance to hear more about the case in open court and begin to mount a defense.  

As a general rule, I don’t advise clients to waive the preliminary hearing.  Even if you know the case will be held over for court, the preliminary hearing is an opportunity to learn more about the case and specifically about the witness or witnesses.  For example, is a witness’s testimony consistent with the allegations in the affidavit of probable cause?  Does a witness appear honest and trustworthy on the stand, or do they appear to be telling something less than the whole truth?  And is the prosecution willing to concede certain aspects of the case that strengthen your defense?  Consider a case where a gun is found under the seat in a car, and the driver is charged with Violation of the Uniform Firearms Act (VUFA) offenses.  I might ask the arresting officer questions such as:

• The car was not registered to the driver, correct?
  
  
• You don’t know how long the driver had been driving it that day.
  
  
• You don’t know who had been driving it before this driver.
  
  
• You never saw the driver reach under the seat.
  
  
• You never saw the gun in the driver’s hand.
  
  
• You never saw the gun in the driver’s waistband, in his pocket, or on his hip.
  
  
• Was the gun submitted for fingerprint analysis?
  
  
• Was the gun submitted for DNA analysis?
  
  

These are basic questions to give you an idea of what I’m thinking about in a preliminary hearing.  Since the issue is possession of the firearm, that’s where my focus will be - casting doubt on actual or constructive possession or knowledge of the firearm.  Depending on the facts, I might ask other questions as well.  
 
There are certain limited circumstances where you might consider waiving a preliminary hearing.  For example, the district attorney might agree to withdraw some charges in exchange for a waiver of the preliminary hearing.  Depending on the charges and the strength of your case, that’s an offer worth considering.  In addition, if you plan to apply for Accelerated Rehabilitative Disposition (ARD) in one of the counties outside Philadelphia, the standard procedure is to waive the preliminary hearing in exchange for ARD consideration. 

Should you waive the preliminary hearing?  It’s an important decision, and you shouldn’t make it without an experienced lawyer on your side.