Preliminary Hearing Lawyers in Wilkes-Barre, PA

At Lampman Law, whenever we have the opportunity to work on a case before the preliminary hearing, we strengthen the defense of our client’s case. We achieve a stronger defense by being fully prepared to cross-examine police officers, victims, and/or witnesses when they first testify for the Commonwealth. It is this preparation that also helps us better understand the strengths and weaknesses of our cases and enables us to offer strategic advice.  

We have appeared at over a thousand preliminary hearings. At preliminary hearings, we regularly have charges dismissed or reduced, take testimony to develop pre-trial motions or to use at trial, negotiate bail reductions, and/or guide our clients to a diversionary program where their case will be dismissed. In some cases, the charges have been completely dismissed.

If you or a loved one has a preliminary hearing scheduled, you should immediately seek guidance from a skilled criminal defense attorney. Please call Lampman Law at 570-371-3737 for a free consultation.

What is a preliminary hearing?

A Preliminary Hearing is a critical proceeding in a criminal case so it should not be attended without a lawyer. A preliminary hearing is significant because the substance of the charge(s) against the defendant is addressed. The hearing is held in magistrate court before a district justice. The judge, however, does not determine the defendant’s guilt or innocence at a preliminary hearing. Moreover, the district court does not impose a punishment for the offense. Instead, the judge simply determines if there is enough evidence in the case for it to go to trial in the Court of Common Pleas. Thus, a preliminary hearing is purely an evidentiary hearing with the purpose of evaluating the fundamental merits of the Commonwealth’s case against the defendant.

When will the preliminary hearing happen?

If a person is arrested, the preliminary hearing will be scheduled during the preliminary arraignment. If the defendant is incarcerated, the preliminary hearing must be held within 14 days of the suspect’s arrest. Pa.R.Crim.P. 540(G)(1). If the hearing is not held within 14 days, the defendant is to be released until the preliminary hearing is held. Commonwealth v. Zook, 615 A.2d 1, 5–6 (Pa. 1992).

In Pennsylvania, however, criminal cases often commence when a police officer files a criminal complaint and a district court issues a summons for the accused to appear at a preliminary hearing. This is typically what happens when misdemeanors (e.g., DUI, drug possession, simple assault) are charged. When a summons is issued, the preliminary hearing is usually scheduled thirty (30) to forty-five (45) days after the charges are filed. The hearing can generally be continued to give the defendant additional time to hire a criminal defense lawyer, to allow the lawyer an opportunity to appear due to scheduling conflicts, and/or to permit defense investigation.

What is the burden of proof at a preliminary hearing?

At this stage of the criminal process, the prosecutor is required to present a prima facie case. To establish a prima facie case the Commonwealth must demonstrate evidence (probable cause) that that a crime has been committed and that the defendant is probably the perpetrator of that crime. If a prima facie case is presented, the case will be held for court. This means that the case will be bound or proceed to the Court of Common Pleas. If a prima facie case is not presented, the case should be dismissed, and the defendant should be discharged.

Who will be at the preliminary hearing?

Although the police officer may prosecute the preliminary hearing, a representative from the District Attorney’s Office will often appear and present the case on behalf of the Commonwealth. The district justice will preside over the hearing and the court’s staff will often be in the courtroom to help the judge. The arresting officer, victims, and witnesses will also be present if necessary.

Is hearsay evidence admissible during a preliminary hearing?

Yes. Unlike a trial where hearsay is generally inadmissible, hearsay evidence is admissible during a preliminary hearing. But the Commonwealth’s case cannot be solely based on hearsay evidence.

What happens at a preliminary hearing?

The defendant has a right to hear the Commonwealth’s case. This means that the police, victims, and/or witnesses may testify. The defense has a right to cross-examine witnesses, to record the testimony, to inspect evidence, and to present testimony. Of course, the defense is under no obligation to anything other than to timely appear at the hearing because the Commonwealth bears the burden of proof.

If a preliminary arraignment did not occur, and the court finds that a prima facie case was established, bail must be set. Bail can be ROR, unsecured, or secured. Bail can also be denied if homicide is charged or if the court finds that the defendant is a threat to him/herself or to the community. A motion to modify bail can also be made at the preliminary hearing.

It is not uncommon for negotiations to occur at this level, which can lead to a plea agreement or a reduction of the charges without an immediate plea agreement. A defendant may waive their right to a preliminary hearing in exchange for plea agreement, a bail reduction, to be considered for a diversionary program or for admission into a specialty court.

The decision on whether to demand a full preliminary hearing or to waive the right to the hearing should be made with the assistance of counsel on a case-by-case basis. However, in general, if a defendant intends to challenge a case by filing suppression motions or by going to trial, it is important to develop and preserve testimony at the preliminary hearing.

Where will my preliminary hearing be held?

Here, it is important to pay close attention to the hearing notice you received. Preliminary hearings are often held at the issuing district court’s office, but they can also be hearing at a central court location. In Luzerne County, preliminary hearings are heard at a central court located in Wilkes-Barre, next to the county correctional facility, unless the defendant is charged in one of the three Hazleton district courts and is not incarcerated. In those cases, the hearing will not be held at central court but at the MDJ’s office.

Is a preliminary hearing a final disposition?

No. Even if a case is dismissed at a preliminary hearing, the police can re-file the charges.