Admissibility of Hearsay Evidence at a Pennsylvania Preliminary Hearing

June 11, 2014 by

Preliminary Hearing

Hearsay is an out of court statement offered for the truth of a matter asserted by the party attempting to introduce it into evidence. Generally, hearsay is not admissible at trial because it is considered unreliable given that the speaker was not under oath and not subject to the opposing party’s cross examination. While there are a number of exceptions to the Hearsay Rule, the purpose of this blog is to explain the admissibility of hearsay at a preliminary hearing.

At a preliminary hearing a magistrate judge determines if a crime was committed and if the accused was connected to the crime. The evidentiary threshold at a preliminary hearing is the preponderance of evidence standard which is far below the criminal trial standard of proof beyond a reasonable doubt. However, the preponderance of the evidence standard means that more than likely the defendant was connected to the crime. Procedurally, the preliminary hearing is the first screening of a crime and its function is not to try the defendant which is why it does not require the same high degree of proof or quality of evidence that is required at trial.

The prosecution and defense often use experts in presenting their case but those experts are usually not an issue during a preliminary hearing because the standard is simply if the accused is connected to the crime. DUI cases have caused significant controversy given that the “connection” to the crime is often established through the expert and not just the expert report. The expert report provides information of the accused Blood Alcohol Level (BAC) and the scientific method used to determine it. Defense attorneys have argued that a DUI prosecution requires the testimony of the expert as well as the introduction of the expert report, and without the expert testimony the expert report is inadmissible hearsay even with the lower evidentiary standard at the preliminary hearing. The defense argument is that the connection is the expert explaining the scientific method in the report which indicates intoxication which is the foundation for the charged offense. These arguments are usually made when the prosecution cannot present any police or civilian witness testimony of DUI impairment.

Despite these defense arguments there are several Pennsylvania Superior Court decisions that firmly hold that hearsay evidence is admissible for the purposes of a preliminary hearing. However, the testimony provided at the preliminary hearing form the basis of most pre-trial motions as well witness impeachment and assessing the credibility of testimony at trial. Although few cases are dismissed at the preliminary hearing stage, a strong defense argument often demonstrates the weaknesses in a case. Since the burden of proof at trial is beyond a reasonable doubt, if defense counsel can show the prosecutor the weaknesses in the prosecution’s case that may substantially reduce or eliminate the number and severity of the criminal charges against a defendant. If you need representation at a preliminary hearing please contact Gregory J. Spadea online or call our office at 610-521-0604 of Spadea & Associates, LLC in Folsom, Pennsylvania.

Filed Under: Criminal Law, General Tagged With: , ,

Your Right to Counsel at a Pennsylvania Grand Jury Hearing

March 18, 2014 by

Grand Jury Room Door
Pennsylvania law provides for two types of grand jury: a multicounty investigating grand jury with statewide jurisdiction, convened on the application of the Attorney General, and a county investigating grand jury, generally convened upon the application of a county district attorney and limited in jurisdiction to the county in which it sits.  The word “grand” distinguishes the jury from a “petit” jury of 12 who sit at trial to decide a defendant’s guilt or innocence.

In Pennsylvania there are investigating grand juries composed of 23 citizens who, after hearing testimony from witnesses and reviewing all the evidence, determine if sufficient evidence exists to find that a crime was committed.  Investigating grand juries do not have the power to indict or formally charge a person with a crime.  If 12 or more of the 23 grand jurors agree that sufficient evidence exists, it issues a written document known as a presentment.  A presentment summarizes the evidence and recommends that the prosecutor file charges against the person who is the target or subject of the grand jury’s investigation.  While a prosecutor is not required to act on a grand jury’s recommendation they do in most cases.  The grand jury’s presentment often serves as the prosecutor’s affidavit of probable cause which Pennsylvania requires in order to file criminal charges.

The work of a state grand jury is secret and a defendant along with his defense counsel only becomes aware of its findings upon an indictment.  Once indicted or charged, the defendant and his attorney only have 60 days to prepare a case for trial unless a Court grants a motion for a continuance.  Grand juries are not permitted in all cases in Pennsylvania and in order to utilize this system in place of a preliminary hearing, a prosecutor must formally represent to the Court that the grand jury is needed because of the threat of witness intimidation.

Witnesses testifying before a Pennsylvania grand jury are permitted to consult with counsel at any time following a question.  While defense counsel does not have an absolute right to be in grand jury hearing room, State judges will typically allow it because answers to questions will frequently create a self-incrimination issue under the Fifth Amendment, along with a right to counsel issue under the Sixth Amendment.  If a prosecutor believes that a subpoenaed witness is likely to make a legitimate claim that his testimony will tend to incriminate himself, the prosecutor may apply to the supervising judge of the grand jury for an order of immunity. Such an order gives the witness protection from having his testimony before the grand jury used against himself in a later court proceeding.  If you receive a subpoena for a Pennsylvania grand jury, I do not recommend ever appearing without an attorney because any statement you make could later be used against you at a trial unless you are granted immunity.

If you receive a subpoena to appear before a grand jury or are charged with a crime you should contact Gregory J. Spadea at 610-521-0604 of Spadea & Associates, LLC in Folsom, Pennsylvania.

Filed Under: Criminal Law Tagged With: , ,

Blood Evidence and the 2 Hour Rule in DUI Cases

March 11, 2014 by

Whiskey with car keys and handcuffs concept for drinking and driving

A blood sample is often a key piece of evidence in a DUI case. While you can refuse to supply a blood sample after an arrest, you risk a one year license suspension simply based on your refusal. The license suspension is a civil sanction carried out by the Pennsylvania Department of Transportation (PENDOT) and therefore outside the scope of a criminal prosecution. Therefore, the Pennsylvania District Attorney could withdraw charges against you and still suspend your license simply because you refused to submit to a blood test. Therefore, I never recommend refusing a blood test under any circumstance since it is better to have your attorney dispute the admissibility of the blood test with pretrial motions and arguments at trial. This article, however, focuses on the use of blood after a certain period of time.

The Pennsylvania DUI statute section 3802(a) (1) does permit the Court to convict someone based on general impairment without the presentation of blood evidence but if the prosecution is pursuing a case under general impairment it forces the prosecution to rely on the testimony of a law enforcement officer and his subjective observations at the time of the alleged incident. Subjective observations, unlike objective blood evidence, are open to interpretation since there are several reasons to explain the unusual movements of an automobile or a person’s demeanor following a traffic stop on a suspicion of DUI.

The presentation of blood evidence at a DUI trial requires the prosecution to present testimony regarding the analysis of whole Blood Alcohol Content (BAC). It is important to understand that to calculate whole BAC, the prosecution must present evidence which mathematically converts blood serum to whole blood BAC utilizing a predetermined conversion factor. In other words, the officer must get your blood drawn and have your BAC tested within two hours after you last drove. If the arresting officer does not obtain your BAC within two hours, the prosecution must show your BAC using a Breathalyzer or the presence of another prohibited substance outside the two hour limit. Next, the prosecution has to show good cause why a blood test could not be obtained within two hours. Finally, it has to prove that you did not ingest any alcohol or drugs between the time of arrest and the time the sample was obtained.

This makes the case much harder for the prosecution but even if the judge allows the prosecutor to go forward, you must fight the good cause showing why the officers could not take your blood test within two hours. If the prosecution shows that the delay was your fault, the judge will rule against you.

It is important to remember, however, that in many DUI cases a person’s BAC level is just above the percentage cutoff and so a successful defense argument could lead to a full acquittal or, in the alternative, a conviction for a lesser offense under the statute allowing a person to avoid jail time and a license suspension in some cases. If you are charged with a DUI contact Gregory J. Spadea at 610-521-0604 of Spadea & Associates, LLC in Folsom, Pennsylvania.

Filed Under: Criminal Law Tagged With: , ,

Direct vs. Circumstantial Evidence

January 28, 2014 by

Male Forensic Scientist Holding an Evidence Bag With a Gun Inside
Sometimes my office receives a phone call from a potential client asking me to evaluate their case based on the facts in evidence to see how strong the prosecutor’s case is. I explain the types of evidence including circumstantial and direct evidence.

Circumstantial evidence relies on an inference to connect it to a conclusion of fact. It is not based on personal knowledge of the facts in controversy, but of other facts from which deductions are drawn. These other facts are also called indirect evidence because they are applied to principal facts by linking them through established occurrences. Circumstantial evidence usually accumulates into a collection, so that the pieces then become corroborating evidence. Together, they may more strongly support one particular inference over another. It is important to understand that circumstantial evidence varies in it degree of strength, however the more corroborating evidence there is, the stronger the circumstantial evidence becomes. Circumstantial evidence is especially important in criminal cases where direct evidence is lacking especially if there are no witnesses.

One example of circumstantial evidence is the behavior of a person around the time of an alleged offense. If someone was charged with theft of money and was then seen in a shopping spree purchasing expensive items, the shopping spree might be circumstantial evidence of the individual’s guilt. If a witness actually saw the person take the money that would be an example of direct evidence.

While Direct Evidence is obviously stronger than circumstantial evidence, a jury can still convict someone solely on circumstantial evidence. However, the burden of proof is always on the prosecution to show the defendant is guilty beyond a reasonable doubt. Reasonable doubt does not mean certainty and that allows the prosecution to meet its burden in cases where it cannot actually produce an eyewitness or any direct evidence.

When the prosecutor has no direct evidence he creates a timeline and attempts to place the defendant at the scene of the crime using his cell phone or EZ-Pass. Sometimes the victim’s calendar indicates the person they met with when the crime was committed.

Direct and Circumstantial Evidence are concepts that you need to understand if your case is headed for trial or you are weighing a plea offer from the District Attorney. If you have any questions about these concepts contact Gregory J. Spadea at 610- 521-0604 of Spadea & Associates, LLC in Folsom, Pennsylvania.

Filed Under: Criminal Law Tagged With: , , , , ,

Attacking the Credibility of a Witness at Trial in Pennsylvania

November 4, 2013 by

Side profile of a lawyer and a witness on the witness stand

Generally the character of a witness including the accused is not admissible at trial. However, the character of a witness is admissible when and if the accused introduces it during his testimony or the prosecution is put in a position to rebut an allegation made by defense counsel. For example, if the defense were to introduce evidence that the victim has poor vision and needs to wear corrective lenses in a case involving identification of the accused, then the prosecution can introduce evidence that the victim was wearing contact lenses, when he or she made the identification. This is the reason why defense counsel must thoroughly investigate the background of any witness called to testify including hiring an investigator when appropriate to avoid surprises.

Another exception to the general rule that character evidence is not admissible is if the defense counsel or prosecutor introduces it for another purpose. For example to show that a witness has engaged in previous crimes. The attorney introducing the evidence would submit that it being introduced to prove that the witness had prior knowledge and experience in committing the crime or had a motive to commit the crime and not as a means of attacking the witnesses character.

However even if an attorney introduces bad character evidence against opposing counsel’s witness, the opposing counsel can always impeach the credibility of the attorney’s witnesses. The rules of impeachment allow either the prosecutor or defense counsel to attack the credibility of any witness including their own witnesses. An attorney may use any evidence to impeach the credibility of a witness but is generally limited to prior convictions involving dishonesty or untruthfulness. In Pennsylvania, most courts will not allow an attorney to introduce a witness’s arrest record if it did not result in a conviction. The reason is the fact that a witness was arrested and charged with a crime, in and of itself, is not evidence of guilt.

The rules of evidence regarding character impeachment are more restrictive in Pennsylvania than they are in the federal courts. The federal rules of evidence allow an attorney to cross exam a witness on any past incidents regarding their character involving dishonesty or untruthfulness even if they did not result in a conviction.

It is important to hire an attorney that understands both the federal and Pennsylvania rules of evidence. If you have any questions or are charged with a crime please call Gregory J. Spadea at 610-521-0604 or contact us online.

Filed Under: Criminal Law Tagged With: , , , ,

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