Too Many Continuances in Pennsylvania Preliminary Hearings for Police No Shows

October 31, 2010
By Jason Antoine on October 31, 2010 10:23 PM |

Pennsylvania is unique to other states because a preliminary hearing is required to take place in every felony or misdemeanor case. In other states the grand jury system is utilized more frequently.

At the preliminary hearing, many cases get continued or rescheduled. This results in innefficieny in our criminal system. I believe some Pennsylvania District Courts are very slow at moving cases. There are many legitimate reasons for continuances. Continuances may be granted for various reasons but the following are the most common reasons I see attorneys and defendants continue the preliminary hearing: the defendant needs to hire an attorney, the attorney is busy in another court or in DUI and drug cases the police are waiting for lab reports. However, in my practice I have noticed an ongoing problem of "no shows" by police officers in the high crime areas such as Coatesville in Chester County and the City of Chester in Delaware County. In other districts, "officer no shows" are typically legitimate. For instance, the officer may be on vacation or in training or on the street making an arrest. I belive these are legitimate reasons for the judge to grant a continuance. However, in the high crime areas, officers chronically fail to appear sometimes for unknown reasons. Nonetheless, the judges will still continue the case and give the officer a chance to appear.

In the City of Chester, I recently had a drug case that was continued on the Commonwealth 3 times because the officer was unavailable. Of course, I objected to every continuance and asked the judge to dismiss the case. To my suprise, the judge granted every continuance. This is an example of how defendants in low income/high crime areas are not given as speedy of a trial as those in wealthier areas. These illegitimate continuances are also jamming up the court's docket. Last week I was in the City of Chester and the Sheriff responsible for transporting prisoners told me that 80% of the prisoner's cases were continued that day. This is ridiculous. These continuances result in overcrowding of our prisons. Many of these prisoners are incarcerated because of bail or have detainers from the probation department. Some of these prisoners will be released when they plead guilty in the Court of Common Pleas. However, because of all the continuances they will be awaiting there pre-trial in George Hill Correctional for 3-6 months. Pennsylvania needs to move cases quicker.

I have a solution to the problem. If you read the Pennsylvania Rule of Criminal Procedure 542(E), it states "the issuing authority may, for cause shown, grant a continuance." In my opinion some of our Magisterial District Judges forget the words "may" and "cause shown." If the cops do not show up for the preliminary hearing and "cause" is not shown, the case should be dismissed right on the spot. If the police have "cause" one continuance should be granted. The hearng should then be rescheduled on a date and time that is agreeable to both the officer and the defense attorney. A second continuance should only be granted if there is extaordinary circumstances that warrant a continuance on behalf of the Commonwealth, otherwise the case should be dismissed. A third continuance request should always warrant a dismissal of the case no matter what the reason. I know what you are thinking, this is too strict of a rule and criminals will get away scott free. This is not the case. The Commonwealth always has the right to refile the charges. In Pennsylvania double jeopardy does not attach at the preliminary hearing. Even if the charges are dismissed. the Commonwealth can always come back at the defendant and refile charges. Therefore, if the case is important to the Commonwealth it will refile the charges in a timely manner to protect the public. The purpose of my proposal is to advocate a culture of being ready to proceed with the case. The way the culture stands now is that continuances are freely granted. I think the police should be in court and ready to proceed with their hearing.The sames goes for the defense This will make the whole system more efficient.

Of course there are exceptions to every rule. There are two circumstances which are beyond the control of the cops and defense attorneys and continuances should be granted in these circumstances: 1) the police are waiting on a lab report; and 2) the defense attorney is handling a case in a higher court or a case which was previously scheduled in another district court. Also, I belive in professional courtesy, my opinion is that 1 vacation continuance should be given on each side as long as the court is notified in advance.

I believe my propositions will make the system run quicker and more efficiently. I think the rules committee should even consider amending Pa.R.Crim.Pr. 542(E) "the issuing authority may for [good] cause shown, grant a continuance..."

If you are incarcerated on bail and awaiting your preliminary hearing contact Jason R. Antoine Attorney at Law PLLC, Pennsylvania Criminal Defense Lawyer.