For the Defense - Volume 3, Issue 1 - 2018 - 44
In July of 2015, the Pennsylvania Superior
Court in Commonwealth v. Ricker agreed with the
trial court that hearsay evidence may be used to
support a prima facie case during a preliminary
hearing, holding that the accused does not have
the right to confront the witnesses against him
at his preliminary hearing.3 After the Superior
Court affirmed, Ricker sought review with the
Pennsylvania Supreme Court, which was granted
on April 18, 2016,4 but subsequently dismissed as
improvidently granted on September 28, 2017.5
Meanwhile, the Superior Court has continued
to hold that a prima facie case may be based
solely on hearsay evidence6 resulting in criminal
defendants being denied an opportunity to cross
examine critical witnesses during their preliminary
hearings.
Unless or until Ricker is overturned or the
Rules of Criminal Procedure are amended,
Pennsylvania prosecutors will continue to argue
that the Commonwealth may prove its prima facie
case exclusively using hearsay testimony. Defense
counsel representing a client at a preliminary
hearing must now overcome the obstacles
created by this controversial decision and the
Commonwealth's simplified interpretation of the
Ricker holding. One such way is the aggressive
use of the magisterial subpoena power by criminal
defense attorneys.
Who can issue subpoenas for a
preliminary hearing?
The issuing authority, usually the Magisterial
District Justice, shall issue process as may be
necessary for the summoning of witnesses for the
Commonwealth or the defendant in a criminal
proceeding.7 A defendant's rights to confrontation
and compulsory process have been held to attach
pretrial and therefore a subpoena can be utilized
to prepare a defense.8
It is important to note that the Commonwealth
is not obligated to produce all of its potential
witnesses during a preliminary hearing.9 With
this in mind, a defendant may call witnesses on
his or her own behalf, but only to negate the
existence of a prima facie case and not merely for
the purpose of discovering the Commonwealth's
case.10
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Vol. 3, Issue 1
The Pennsylvania Supreme Court recognized,
"that [t]he [preliminary] hearing's principal
function is to protect an individual's right against
unlawful detention. . . . In seeking this protection,
the defendant has the right to contest the
existence of a prima facie case and may not be
denied the opportunity of presenting evidence
which, in his view, negates its existence."11
Who should be subpoenaed to testify?
Subpoena ad testificandum
A subpoena ad testificandum is a "process
to cause a witness to appear and give testimony
. . . ."12 So long as the defense calls witnesses to
negate the Commonwealth's prima facie case, the
defense may subpoena those who have personal
knowledge or were eyewitnesses to the alleged
incident that would tend to prove or disprove an
element of an offense charged.13
A good starting point is the affidavit of
probable cause when in search of potential
witnesses to subpoena for a preliminary hearing.
Private investigators can play an integral role
in the defense of a criminal case and utilizing a
private investigator to locate potential witnesses
and obtain statements in the preparation of
testimony will allow you to be fully prepared to
call witnesses on your client's behalf.
Affiants, other responding officers, and eye
witnesses could be subpoenaed if the defense
investigation reveals that their testimony could
be beneficial to negating a prima facie case.
Just because you have subpoenaed witnesses
to testify does not require you to call them as
witnesses. Subpoenaing additional affiants
or responding officers allows you to call those
individuals in the event that the Commonwealth
attempts to "hide the ball" by utilizing only
hearsay statements of other officers. Additionally,
anyone that your client knows witnessed the
alleged incident and could offer defense favorable
testimony or anyone who may have information
to negate the Commonwealth's prima facie
case should be considered for testimony. Never
assume that the Commonwealth will have all the
potential witnesses at the preliminary hearing.
To the contrary and in light of the ruling in
Table of Contents for the Digital Edition of For the Defense - Volume 3, Issue 1 - 2018
Contents
For the Defense - Volume 3, Issue 1 - 2018 - 1
For the Defense - Volume 3, Issue 1 - 2018 - 2
For the Defense - Volume 3, Issue 1 - 2018 - Contents
For the Defense - Volume 3, Issue 1 - 2018 - 4
For the Defense - Volume 3, Issue 1 - 2018 - 5
For the Defense - Volume 3, Issue 1 - 2018 - 6
For the Defense - Volume 3, Issue 1 - 2018 - 7
For the Defense - Volume 3, Issue 1 - 2018 - 8
For the Defense - Volume 3, Issue 1 - 2018 - 9
For the Defense - Volume 3, Issue 1 - 2018 - 10
For the Defense - Volume 3, Issue 1 - 2018 - 11
For the Defense - Volume 3, Issue 1 - 2018 - 12
For the Defense - Volume 3, Issue 1 - 2018 - 13
For the Defense - Volume 3, Issue 1 - 2018 - 14
For the Defense - Volume 3, Issue 1 - 2018 - 15
For the Defense - Volume 3, Issue 1 - 2018 - 16
For the Defense - Volume 3, Issue 1 - 2018 - 17
For the Defense - Volume 3, Issue 1 - 2018 - 18
For the Defense - Volume 3, Issue 1 - 2018 - 19
For the Defense - Volume 3, Issue 1 - 2018 - 20
For the Defense - Volume 3, Issue 1 - 2018 - 21
For the Defense - Volume 3, Issue 1 - 2018 - 22
For the Defense - Volume 3, Issue 1 - 2018 - 23
For the Defense - Volume 3, Issue 1 - 2018 - 24
For the Defense - Volume 3, Issue 1 - 2018 - 25
For the Defense - Volume 3, Issue 1 - 2018 - 26
For the Defense - Volume 3, Issue 1 - 2018 - 27
For the Defense - Volume 3, Issue 1 - 2018 - 28
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For the Defense - Volume 3, Issue 1 - 2018 - 43
For the Defense - Volume 3, Issue 1 - 2018 - 44
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For the Defense - Volume 3, Issue 1 - 2018 - 56
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