Amended Rule Likely to Affect Criminal Defendants’ Rights & Increase Preliminary Hearings

Filed under: Criminal Law by Contributor @ May 9, 2012

The Pennsylvania Supreme Court has amended a rule that significantly affects criminal defendants’ rights to a habeas corpus hearing. The amendment is included below with the proposed terms in bold. Specifically, the proposal addresses the issue that arises after a defendant waives the preliminary hearing and subsequently challenges the State’s establishment of a prima facie case. The proposal indicates that a knowing waiver of the preliminary hearing precludes the right to a habeas corpus hearing after the rule goes into effect on October 22, 2012.

The preliminary hearing is one of the first major events to occur after one has been charged with a crime in Pennsylvania. The preliminary hearing is usually held in front of a district judge or magistrate and it is designed to determine whether the prosecution has enough evidence to hold the case for court. The government must come forward with sufficient witnesses and information to convince a neutral judge that there is some evidence a crime occurred and there is some evidence linking you to that crime. If not the case, or at least the charge(s) not so proven, are dismissed.

There are many reasons that counsel may advise that the defendant waive the preliminary hearing. This is frequently done to get a bail reduction or to maintain bail that the prosecutor threatens to raise, to take advantage of a deal wherein charge(s) are dropped, to avoid putting a victim through a traumatic hearing if the charges are not likely to be contested at trial, or to move the case forward when the defendant intends to plead guilty.

In these cases, the defense could still make the prosecution prove its case later by filing a writ of habeas corpus. A habeas corpus is a legal action where a person challenges the basis for their confinement. Essentially, it is a demand that the government show a valid reason for detaining the person. As such, a habeas corpus is another appropriate vehicle for challenging the prosecution’s ability to establish a prima facie case. The right of habeas corpus is one of constitutional magnitude in Pennsylvania, and courts have held that the State has a significant burden to prove that any alleged waiver of the right was knowing and intelligent.

However, the legislature has done an end run around this burden with this new rule which effectively dictates that a waiver of the preliminary hearing will also likely waive the defendant’s constitutional right to a habeas corpus hearing. As a practical matter, this will also likely result in more preliminary hearings being held at a time when the presiding district justices are being scaled back.

There are a few limited exceptions in the proposed rule, which make adequate representation even more critical. If you or someone you know has been charged with a crime in Pennsylvania, contact Fairlie & Lippy and we will ensure that your rights are protected and preserved during all phases of the criminal court process.

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PART D. Proceedings in Court Cases Before Issuing Authorities

Rule 541. Waiver of Preliminary Hearing.

(A) The defendant who is represented by counsel may waive the preliminary hearing at the preliminary arraignment or at any time thereafter.

(1) The defendant thereafter is precluded from raising the sufficiency of the Commonwealth’s prima facie case unless the parties have agreed at the time of waiver that the defendant later may challenge the sufficiency.     

(2) If the defendant waives the preliminary hearing by way of an agreement, made in writing or on the record, and the agreement is not accomplished, the defendant may challenge the sufficiency of theCommonwealth’s prima facie case.

(B) The defendant who is not represented by counsel at the preliminary arraignment may not at that time waive the preliminary hearing.

(C) If the defendant waives the preliminary hearing and consents to be bound over to court, the defendant and defense attorney, if any, shall certify in writing that

(1) the issuing authority told the defendant of the right to have a preliminary hearing,

(2) when represented by counsel, the defendant understands that by waiving the right to have a preliminary hearing, he or she is thereafter precluded from raising challenges to the sufficiency of the prima facie case, and

(3) [that] the defendant voluntarily waives the hearing and consents to be bound over to court.

(D) Once a preliminary hearing is waived and the case bound over to the court of common pleas, if the right to a preliminary hearing is subsequently reinstated, the preliminary hearing shall be held at the court of common pleas unless the parties agree, with the consent of the common pleas judge, that the preliminary hearing be held before the issuing authority.

(E) When the defendant waives the preliminary hearing, the case shall proceed as provided in Rule 543(C).


  1. Aaron says:

    I never wanted to waive my right to a preliminary hearing. I wish to withdraw my signature as my public defender did not fully disclose the nature of the process. Can this be done?

  2. It is much easier to contest the waiver of a Preliminary Hearing if you did not have a lawyer. A public defender is a lawyer, so the Court will presume that you were advised of your rights. You still might be able to prevail but will need a consultation with a good lawyer in the area where your case is located.

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