Friday, December 6, 2013

Waive My Preliminary Hearing

Waive My Preliminary Hearing


Should I waive my preliminary hearing?

"To waive or not to waive? That is the question."

This is one of the hardest questions in criminal law. I think the answer depends on how serious are the charges. The more serious, I am less likely to advise a client to waive. The less serious, the more likely I am to give advice saying, "waive my preliminary hearing."

However, there are so many other factors involved in this decision.

In certain counties, they will not give you a good negotiation at the next level if you go forward with the preliminary hearing. Especially ARD in certain borderline cases. If your case is ARD eligible, you should consider waiving the preliminary hearing always.

The real true benefit of preliminary hearing is that you get to create a record, like a deposition, of the witness, way before trial starts. Often times the witnesses aren't well prepared, and the ADAs at the preliminary hearings are younger and much less experienced. When you put up your preliminary hearing all the witnesses are locked in to those notes and now it is very difficult for them to change their stories.

While there are always exceptions to every rule, my advice is based on the serious of the case. In a murder case, unless the DA will agree to only move on murder 3 and/or manslaughter, I am always putting up the preliminary hearing. In rape case, I am always putting up the preliminary hearing. In a DUI case with an accident where it looks like the person is not ARD eligible, but they may be eligible, I would always waive.

The only true exceptions to this is in Montgomery county where if the case looks bad, and you waive, you can get a good offer anyway because your didn't block them at all; and in Philadelphia county, unless they give the an offer in hand or tell you it will be held against you in an ARD application, just go forward with the preliminary hearing.

Waive My Preliminary Hearing
Waive My Preliminary Hearing

By Brian J. Zeiger

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