Should I Waive My Preliminary Hearing?

I was at my preliminary hearing in Berks County today for Burglary F1. The district attorney asked my lawyer if I would waive the preliminary hearing. My lawyer said no. The DA got very angry with my lawyer. Did my lawyer do something wrong? should I have waived my preliminary hearing?

I never advise my clients to waive their preliminary hearing unless we get something back from the DA. Often, if I have a client who is ARD eligible, if the DA tells me that ARD is a possibility, I always tell my clients to waive. In fact, in some counties, if you don’t waive, you are not eligible for ARD.

In some counties, the police and DAs at the local courthouse have the power to change the charges. In that case, I will advise my client to waive if there is a break in the charges. Further, if I think that a good deal may arise later from a waiver, I will advise my client to waive. An example of this is waiving on a tier one DUI instead of the tier three. The tier three is a 90 day case, while a tier one is a 10 day case. If the client has a terrible case and the DA offers a waiver on the lighter charge, I will recommend it.

In your case, I would never waive and I would be sure to have a stenographer at the preliminary hearing. If you are charged with a felony of the first degree, the DA assigned to your case at the preliminary hearing is never going to offer you anything that outweighs the worth of the preliminary hearing.

In general there are two great benefits to preliminary hearings in very serious cases. First, if there is a civilian witness, that person must testify and that testimony will be on the record by the stenographer. If they change their story at trial, your lawyer can use the transcript from the preliminary hearing to show the jury that the person is lying. Second if you have any potential motion in your case, you can ask questions at the preliminary hearing to set the table for your future motion to suppress. Some judges are hip to this tactic and may shut you down, but most either have no idea what you are doing or simply don’t care and let you ask whatever you want.

Don’t waive.

1 Comment on Should I Waive My Preliminary Hearing?

  1. Brian Zeiger // at 3:13 pm // Reply

    A new question was asked about this post. If the witness is reluctant to testify, the cops did not observe the crime, and the cops bring the complaining witness into the courtroom in handcuffs, would that change your answer? Maybe. If you waive, there will be no notes, and the complainant will not have been subject to cross examination. I had a case like this and the DA refused the waiver.

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