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Pa. court changes rules on hearsay

Justices rule more evidence must be presented at preliminary hearings

The Pennsylvania Supreme Court has settled the question over the role hearsay plays in preliminary hearings for criminal defendants.

In an opinion handed down Tuesday in Commonwealth v. McClelland, the Supreme Court ruled hearsay evidence alone is not enough for a magisterial district judge to decide after a preliminary hearing if prosecutors have enough evidence against a defendant to send the case to court.

While hearsay evidence hasn’t been allowed in trials, district judges could consider it at a preliminary hearing.

A Supreme Court rule change in 2013 and Superior Court ruling in 2015 changed a long-standing standard that while district judges could consider hearsay evidence, it couldn’t be the only evidence that a crime was committed and the accused was likely responsible to send a case to county court.

It was a change that defense attorneys argued stripped the preliminary hearing of any real value because prosecutors merely could put a police officer — sometimes an officer who didn’t even make the arrest — on the stand and walk them through the affidavit of probable cause from the criminal complaint, denying the defense any opportunity to question witnesses and challenge evidence.

With the Supreme Court’s new ruling, prosecutors will again have to present more than just the arrest at a preliminary hearing.

“I’m very pleased that people accused of crimes will no longer have to proceed all the way to a jury trial to meaningfully test whether the prosecution has sound evidence against them,” said Blair County Assistant Public Defender Julia Burke.

Burke pointed out that when only an officer testified and gave his or her version of the case and what witnesses said, it denied defendants an important, early chance to call evidence into question.

“There was no opportunity to evaluate whether an officer accurately understood, interpreted or described what a witness observed,” Burke said.

Burke said by finding out early if there are discrepancies between what witnesses and victims experienced and what police allege, weak cases and cases with no merit proceeded through the court system despite the fact that the preliminary hearing was intended to keep that from happening.

“Magisterial district judges get to decide again,” said defense attorney Daniel Kiss.

Kiss pointed out preliminary hearings are useful in that they provide defense attorneys with the chance to see and hear live witnesses and victims testify to see if prosecutors can prove the bare minimum. For judges, it means hearing witness testimony that may lead to a decision that police do not have enough evidence for a particular charge, Kiss said.

Two types of cases brought up when the issue is discussed are children who are alleged victims who will have to testify and alleged victims in domestic abuse cases, the latter of which can often become uncooperative by the time a case gets to court.

Blair County District Attorney Pete Weeks pointed out the concern for shielding alleged victims, particularly children, is a drawback in regard to the decision on hearsay evidence, and he said it will likely mean a change in negotiations with defense attorneys early in the process.

It will mean prosecutors and defense attorneys will have more incentive to negotiate to avoid subjecting an alleged victim to testifying at a preliminary hearing because guilt or innocence isn’t the issue at that point.

Weeks said prosecutors try to strike a balance at protecting the victim and prosecuting the case.

“If it’s a child abuse case, we’re going to look to not have them testify,” he said of a preliminary hearing.

Weeks agreed it does give both sides the ability to test the merits of the charges and said overall, it won’t have much of an impact on the way his office prosecutes because they don’t rely on hearsay evidence to build the case against a defendant.

“You definitely find out more about your case,” Weeks said of seeing how witnesses perform on the stand.

Weeks pointed out that only two of the current six magisterial district judges were on the bench when preliminary hearings did require more than just hearsay evidence.

“Ultimately, it gives the judges discretion to decide how much hearsay is enough or too much,” Weeks said.

Mirror Staff Writer Greg Bock is at 946-7458.

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