Continued from the May 7th, 2011 blog.
If you do not waive your Pennsylvania DUI preliminary hearing and choose to exercise this right, there are certain strategies a good attorney will implement. In a Pennsylvania DUI preliminary hearing, many times the judge will hold the charges for court. However, a good DUI defense attorney will set you up for success at trial by using the preliminary hearing as a tool. First, preliminary hearings are recorded in Chester County, PA and Delaware County, PA. There is a tape recorder running while the witnesses are testifying. I always check with the judge to make sure the tape recorder is running. That means your attorney's cross-examination of the police officer in a DUI case will be recorded. For a fee, you will have the ability to have this recording transcribed by a court reporter. If you plan on taking your Pennsylvania DUI case to trial, the transcript will be invaluable. Many times police officers are not prepared for the preliminary hearing and will make inaccurate statements when questioned. My office will do a thorough cross-examination and bring out inaccuracies in the officer's story. The officer will be stuck with the inaccurate statements he makes at the preliminary hearing at trial. If the police officer deviates at trial from what he said at the preliminary hearing, your attorney may confront the officer with the transcript. This is called impeaching the witness with a prior inconsistent statement. I frequently use prior inconsistent statements at trial to make the officer appear untruthful on the stand.
Another strategy to implement at the preliminary hearing is to use the hearing as a discovery tool to find out what evidence the Commonwealth has against the defendant. When the case proceeds to the Court of Common Pleas (post-preliminary hearing), the Commonwealth should turn over all of its evidence to the defense, upon a request for discovery from defense counsel. The preliminary hearing is not supposed to be a discovery tool for defense attorneys. However, good attorneys will use the preliminary hearing to obtain this discovery evidence early and find out how the victim(s) will testify at trial. Often, the Commonwealth's attorney will object to questions that get into discovery issues because the scope of the preliminary hearing is limited to whether the Commonwealth has enough evidence to establish a prima facia case. This is a tightrope act for defense attorneys. Competent defense attorneys will ask unobjectionable questions that will serve the purpose of finding out what facts the Commonwealth has against the client and staying within the evidentiary bounds of the preliminary hearing. It is important to get as much testimony out of the witness as possible at the preliminary hearing. This way it is less likely that there will be any surprises at trial and you will know what to expect. A good Pennsylvania criminal attorney will use the preliminary hearing how a civil attorney would use a deposition as a discovery tool. Many attorneys will be reading your "police criminal complaint" and "affidavit of probable cause" on the way into the courtroom. If I know a hearing is going to occur I will typically make an outline of all the points I plan to hit at the preliminary hearing to make sure I do not miss anything.
Another technique that I use, and have had a lot success with, is simply listening to what is going on in the courtroom hallways. Call it sneaky, call it what you want, I don't put my ears up to walls. It's not unethical to listen to what police and government officials say in public places. I guarantee if you say something stupid in the courtroom hallway, the police and prosecution will jump all over you, so why don't you do the same with them? Other than myself, I haven't seen any other attorney call police on their statements made in public. When I show up to court I am always cognizant of the conversations between the DA and the officer, and conversations that occur between witnesses in the hallway. Of course, conversations that occur between your attorney and the officer are inadmissible in evidence as "plea negotiations." As a rule of evidence in Pennsylvania plea negotiations are protected and cannot be brought up in court. However, statements that police make to the DA in front of you and to other people in hallways do not occur in the scope of plea negotiations. Every hear the phrase "anything you say will be held against you in a court of law." I throw this same philosophy back at the police. My philosophy is "officer, anything you say can be used against you in a court of law." I will give you an example of how I used this tactic against the Valley Township Police Department in Chester County.
To be continued............
Contact Jason R. Antoine, Esquire, Chester County DUI lawyer if you have an upcoming preliminary hearing date and need to cross examine the police to get to the truth of the matter.
