1. Dress appropriately you are not going to the club or hanging out on the block.
It is so very important to take the preliminary hearing and all court proceedings seriously. The Judge may or may not make a quick snap decision about what to do in your case, this snap decision may be based solely on how you appear when you stand in front of that Judge. Do not wear blue jeans, white t-shirts, wife beaters or shirts with obscene language or pictures of marijuana leaves on them. I am not saying you have to wear a suit, at least wear professional clothing. Dress slacks or khaki pants, long sleeve shirt or button down shirt. Women, no tight fitting skirts, or mini-skirts or clothes you would wear to the club or out to a barbeque. Remember first impressions can be and are lasting impressions.
2. Know that the purpose of a preliminary hearing is not to establish guilt or innocence.
A preliminary hearing is merely a preliminary vehicle for the Commonwealth to demonstrate to the Court the strength of its case and why the person, who is appearing as the defendant, should be made to answer for the charges at trial. The legal standard for what the Commonwealth needs to prove at a preliminary hearing is that it is more likely than not that a crime has been committed and the person who appears before the court as the defendant maybe the one who committed the crime. It is not a beyond a reasonable doubt standard. It just means that the Commonwealth is saying hey Judge the person who is appearing before you at this preliminary hearing was around when the crime was committed or was seen by someone doing something, here is a sneak peek of the evidence we intend to use when we send the person to trial.
3. Understand that it does not matter if the witness who testifies at the preliminary hearing is lying.
Usually at every stage of the legal process whether a person is testifying truthfully or not is relevant and does matter, this is called Credibility. However, at a preliminary hearing the only relevant evidence or arguments the defense attorney can make has to do with attacking the crimes charged. In other words, if a person faces a preliminary hearing for shoplifting or retail theft, it does not matter that the security guard who stopped the person is a liar and a scumbag. But it does matter if the there is evidence to show that the person never took any inventory from the store and it can be proven by a receipt or an independent witness or video surveillance camera. Often, defendants and their families get upset with the defense attorney at the preliminary for not fighting hard enough. Remember it is not enough to argue that the witness is lying, the attorney can only argue against those charges that the DA has failed to make out under the law!
4. Be prepared that the Judge will more than likely hold you for Court on some or all of the charges.
Remember, the Commonwealth's burden is to show that it is more likely that a crime has been committed and the person appearing before the Court charged, is probably the one who did it. So absent a self-defense or other affirmative defense claim, (an affirmative defense is a defense that is designed to totally counter the charges or present justification for the charges) you will be held for court on some or all of the charges. Your defense attorney will argue that legally some or if applicable, none of the charges have been made out. Each crime in the Commonwealth of Pennsylvania has a number of elements or parts that must be shown even at a preliminary hearing. If your attorney can argue that some or none of the elements are made out that particular charge can be dismissed. Make sure your attorney explains to you all the elements of each and every charge you face!
5. Police Officer witness are given automatic believability points
If the witness against you is a police officer at the preliminary hearing, be prepared for the Judge to believe everything that comes out of that Officer's mouth even if the story is a bold face lie and has no basis in truth. Remember tip number 2 above, Understand that it does not matter if the witness who testifies at the preliminary hearing is lying. This is doubly true for police officer witnesses. Let's be real no-one not even a Judge is willing to admit that Police Officers can tell untruths, so be prepared to be held for court on all charges when the witness testifying against you is a police officer or other law enforcement officer. But, keep in mind; this does not stop your defense attorney from arguing that the Commonwealth has failed to make out all of the elements required for each of the charges you face!
6. Don't make faces, noises squirm in your seat or act out in any way during the preliminary hearing.
Too many times my clients get animated and upset when the witness is on the stand testilying,(lying while testifying) and the client is making faces, making comments, squirming or otherwise acting out. Even though the Judge legally can't throw out the case because the witness is lying, your actions and conduct is being observed by the Judge. And your conduct, may affect the decision the Judge makes after your defense attorney makes his or her argument. I have had Judges throw charges out based on a witness' obvious lying despite the Judge not outwardly admitting that the witness was lying. But, I have also had Judges who were tempted to throw out charges but because my client acted a fool, the Judge presumed that the client probably did what he or she was accused of based on his or her conduct during the hearing. Sit still, listen and let your defense attorney earn that money you paid him or her!
7. Tell your family and friends who come to court with you not to act up or act out.
Family and friends may think they are there to support their loved one but too often family and friends react when the witnesses are testifying or decide they want to challenge the witness in the hallway after the witness testifies. Tell them to chill out; whatever actions your family and friends take may have a negative impact on you. The negative results can be, the Judge who may have been leaning on throwing out some charges decideng to hold you on all charges because your family member or friend acted out. In addition, the Judge may order your bail revoked, or set a new higher bail because the Judge decided that you were the motivation for your family member or friend acting out and makes you a dnager or a threat to the witness who was justed threatened by your family member or friend. Remember any action on the part of your family and friends can and probably will be held against you!
8. Do not distract your attorney during the testimony.
At hearings or trial, clients are too often hyped, by what the witness is saying and hell bent on letting their defense attorney know. The client interrupts the attorney's concentration, by saying things like, that's a lie or it didn't happen that way or with some other comment, action or annoying motion. The constant commentary may cause your attorney to miss vital information, which may be useful to argue to have some or all of the charges dismissed. If you must get your attorney's attention during the testimony take a piece of paper write your comments down and slide the note to your attorney. Do not distract your attorney, if you do you will miss out!
9. Prepare before hand and ensure that your attorney knows your version of events
Make sure to speak with your attorney in advance of the preliminary hearing. Even if the client is in custody, make sure the defense attorney is aware of the client's version of events. If nothing else this will provide the defense attorney with a road map for his or her cross- examination and you never know, may even be sufficient ammunition to challenge some or all of the charges. After all, it is your life and your liberty, make sure your attorney knows what's going on and is prepared to defend you at the preliminary hearing!
10. Remember it is not personal
Although you may think the DA or the Judge or even both, don't like you or are out to get you. It is not about you, both the DA and the Judge have roles to play and jobs to do. The DA's job is to convince the Judge to send you to trial on some or all of the charges. The Judge's job is to make a legal determination as to what charges if any your are to defend agasint at trial. Despite what you may feel, they are not out to get you. Relax, trial is when it really counts anyway!
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