What does it mean to waive my right to a preliminary hearing?

Asked over 3 years ago - Stroudsburg, PA

I was arrested on 11/20/10. I was not read my rights or givin a reson of why i was being arrested. I was bailed out of jail 11/23/10. On 11/24/10 i had to go to a court and my public defender had me sign a waiver of preliminary hearing.

Attorney answers (4)

  1. Adam D. Zucker

    Pro

    Contributor Level 17

    Answered . Some of the above answers are astounding! A preliminary hearing does not mean that you have been arrested on a Felony and it has nothing to do with a grand jury. In PA Defendants in Criminal actions including misdemeanors and felonies are granted a preliminary hearing to determine if the Commonwealth has a prima facia case to hold your case over for trial. A primia facia case means that all that the Commonwealth has to prove is that on the face of their case there is even just the slightest evidence present to allow the case to go to trial. You have five rights at the preliminary hearing they are:

    1) The Right to be represented.
    2) The Right to testify in your own defense.
    3) The Right to remain silent.
    4) The Right to confront witnesses against you through cross examination.
    5) The Right to make a recording of the proceedings.

    By waiving the preliminary hearing you give up these rights at the preliminary hearing, and the right to have the Commonwealth prove a prima facia case.

    We never recommend waiving a preliminary hearing unless the client is going to get something for it. ie reduction of charges or some other valuable consideration.

  2. Noah Paul Fardo

    Pro

    Contributor Level 12

    Answered . A preliminary hearing is held to determine if there is sufficient evidence for the case to proceed. In a preliminary hearing, the burden of proof is less than a criminal trial (meaning the burden of proof in a preliminary hearing is a "preponderance of the evidence" or "more likely than not" while a criminal trial is "guilty beyond any reasonable doubt". It is common to waive preliminary hearings and you still have the right to defend the charges against you. I am always skeptical of waiving preliminary hearings though, because they can be opportunity to cross-examine witnesses and use that testimony later. It would depend on the facts of your case. In short, by waiving your preliminary hearing, all you have done is consented to move the case to the next level (which would have probably happened anyway), but whether you should have cross-examined witnesses is a different story. Hope this helps.

    Good Luck,
    Noah Paul Fardo, Esq.

  3. Theodore W. Robinson

    Contributor Level 20

    Answered . Its almost impossible to answer your question without more information, however, from the little you offered, it appears you may have been arrested for a felony and when that happens, you usually have a right to a preliminary hearing to determine if there's a legitimate reason to hold you for the action of the Grand Jury (for presentment of your case to the Grand Jury to see if they are going to Indict you for a felony or not). Before that happens, the court gives you the right to a preliminary hearing to determine if there's reason to hold you on bail so you don't flee while the Grand Jury deliberates. However, often those hearings are not held because the prosecutor will then intensify his/her plea negotiations if you insist upon such a hearing, so the defense attorney will often waive the hearing in order to keep the prospect of plea bargaining alive if needed later. Also, if you're out on bail, its not as much of a necessity so they waive it.

    Hope that helps.

  4. Merrida P Coxwell Jr.

    Pro

    Contributor Level 7

    Answered . It basically means you give up your right to have a hearing in open court and listen to some law officer testify under oath the reasons why you were arrested. In other words when you have a preliminary hearing the officer must show the probable cause to the court for why he thinks you committed. I have had clients waive them before but not that often. It is the first opportunity to learn about the client's case.

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