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Down with Ricker, Long Live Verbonitz?

Criminal Cases May Not Survive a Preliminary Hearing Based Upon Hearsay Alone

Pennsylvania Supreme Court Overrules Ricker

Today’s decision in Commonwealth v. McClelland is a giant win for due process, criminal defense and court efficiency.  The Pennsylvania Supreme Court, relying on the case of Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990), clarified that the prosecution may not rely on hearsay alone to send a case to trial and/or keep an individual incarcerated.  

The McClelland Court relayed its clear holding on page two of the decision, stating “Upon careful review, we hold the Superior Court erred to the extent it concluded hearsay evidence alone is sufficient to establish a prima facie case at a preliminary hearing.  Accordingly, we reverse the Superior Court’s decision in this matter and disapprove the Superior Court’s prior decision in Ricker I, which similarly concluded hearsay evidence alone is sufficient to establish a prima facie case at a preliminary hearing.

In addressing Pa.R.Crim.P 542(E), the Supreme Court stated, on page 25, “We determine Rule 542(e), though not the model of clarity, does not permit hearsay evidence alone to establish all elements of all crime for purposes of establishing a prima facie case at a defendant’s preliminary hearing.

When further addressing Pa.R.Crim.P. 542(E) the Court went on to state, on page 28, “when a statute is susceptible to two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.

McClelland has, once again, made clear what has always been the case: The Commonwealth may not meet its burden at a preliminary hearing based upon hearsay alone.  In other words, the Commonwealth may not incarcerate its citizens without due process and upon hearsay alone.

Concurrences and Dissents

Justice Wecht would further limit hearsay, Justice Saylor has a nuanced view and Justice Baer would reduce the Commonwealth's preliminary hearing burden altogether.

Justice Wecht, in his concurrence, raises the salient question: “[I]F the prima facie case cannot be made on hearsay only, how much hearsay can be used?”  Justice Wecht goes on to succinctly state “as a sliding scale, the more hearsay that is allowed at preliminary hearings, the more the purposes and interest of the hearing are disserved.”  Justice Wecht concludes that hearsay should be admissible for for purposes of value and expert testimony but not never used in place of eyewitness testimony or other testimony establishing the material elements of an offense. 

Justice Saylor appears to present a nuanced view.  While concurring with the majority’s interpretation of Verbonitz he found Verbonitz to not be binding precedent.  Justice Saylor went on to suggest that the evidentiary standard at a preliminary hearing should be reduced to probable cause rather than prima facie.  In reaching this determination Justice Saylor relied on the floor set by the United State Constitution and a U.S. Department of Justice report touting that witness intimidation is on the rise.  (Perhaps the government is just charging witness intimidation more often as part of its general scheme of overcharging)

Justice Baer found that hearsay alone should and could be capable of passing a case beyond a preliminary hearing.  Justice Baer proposed that the Court should have dedicated more time to establish what types of hearsay would be admissible rather than finding that a case cannot be bound over based upon hearsay alone.  Justice Baer suggested that audio and visual recordings of witness statements, single layer hearsay provided by police and expert opinions should be admissible via hearsay.

Just my thoughts....

With many spelling and grammer errors, and subject to correction

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