The preliminary hearing is essentially a hearing to determine if the Commonwealth had probable cause to arrest the defendant and to make the defendant stand trial on the charges. In order to establish its case, the Commonwealth calls witnesses. The Commonwealth’s evidentiary burden at the preliminary hearing is known as a prima facie standard. The prima facie standard means the Commonwealth must prove that a crime probably occurred in the court’s jurisdiction and the defendant was probably the one who committed the crime. In order to meet this standard, the Commonwealth must establish three general elements at any preliminary hearing: (1) a Commonwealth witness must identify the defendant as the one who probably committed the crime; (2) a Commonwealth witness must testify that the crime occurred within the jurisdiction of the court; (3) a Commonwealth witness must testify to all the elements of the crime(s) charged.
At a preliminary hearing, the defendant can and should be represented by an attorney. Your attorney has the right to confront and cross-examine the Commonwealth’s witnesses who testify at the hearing. Although the right to cross-examine witnesses is limited at a preliminary hearing, your attorney can use the preliminary hearing to lock witnesses into statements and get valuable discovery for future proceedings.
Because the preliminary hearing is such a valuable process in the criminal justice system, those accused of a crime should make sure they meet with and retain the attorney of their choosing prior to the preliminary hearing, in order to make sure the accused’s rights are properly protected.