What is a Preliminary Hearing?

If you or someone you know has recently been charged with a crime, they will be scheduled for a “preliminary hearing.” The words sound just like what they mean; a meeting with the judge, your attorney, and the prosecutor to determine if, before anything else, there is enough evidence to even cast reasonable suspicion on the accused. This hearing a crucial first step in criminal procedure, and takes place even before the first motion is filed.

A preliminary hearing is an evidentiary hearing, at which the prosecutor shows the judge or magistrate all of the evidence he or she has against the accused. The preliminary hearing does not involve a jury, and evidence that is admitted in the preliminary hearing may be objectionable and excluded at trial itself.

The purpose of a preliminary hearing is to determine whether there is any reason to believe that a crime was committed, and that the accused may have been the one who committed that crime. This is the time when a good attorney may be able to help the accused. A good attorney should look for flaws in the prosecutor’s progression of the crime, the evidence the prosecutor has of the commission of a crime, and the manner in which the prosecutor acts so that the attorney can determine if a plea bargain may be the best option for the accused.

A preliminary hearing is also a good testing ground for you to see how the attorney you have hired works. If the attorney takes the hearing seriously, and is diligent in his defense even at the preliminary hearing, then you have an attorney who, at the very least, is going to try hard to help you. If your attorney does not seem to be taking the hearing seriously or is unprepared, you may wish to consider another attorney before you get too far into the case. Some attorneys do not utilize opportunities to attack the case at the preliminary hearing, and you need to keep an eye out for this lazy kind of lawyering.

If you have an impending preliminary hearing, don’t wait until you get to court and hear from the judge that you’re headed to trial before hiring an attorney. Preliminary hearings are important, and are stressful for an accused person. Do not try to handle it alone: you deserve every opportunity for a great defense.

Explanation of Common Attorney Billing Practices

When you first meet with an attorney a lot of words may be thrown around, and it can sometimes get confusing. The attorney will send you a written agreement with the duties he or she has taken on, your rights and responsibilities as a client, and the agreement for payment. Sometimes the terms of payment can be confusing, so this is a brief explanation of the most common billing practices.

Fixed fees:

A fixed attorney fee means that for a certain service you will pay a definite amount. For example, an attorney may charge you $1,000.00 to represent you at your preliminary hearing. Or, an attorney may charge you $2,000.00 to help you through the ARD process.  Most often, fixed fees are due prior to the attorney beginning work.

Fixed fees are gaining favor among attorneys and clients alike. The method is straightforward, and the client always knows what his or her total charges are going to be. It’s a good method to use when the legal process is finite. That is, when the steps that need to be taken are well known by the attorney and when the client has a set goal in mind.

Some common times when fixed fees are used: ARD, basic criminal matters (generally not trials and appeals), uncontested divorces, adoptions, immigration visa applications, basic will drafting.

Hourly Billing:

Hourly billing is the more traditional approach to paying an attorney. An hourly rate is set for the work to be done, and the attorney tracks the hours he or she spends on the work, often down to the tenth of an hour. A good attorney will also track what is accomplished during each time period, and the hourly rate may differ if the work is research and writing, time in court, or travel time. Hourly rates also vary depending on where the attorney is located and the area of law in which he or she works.

Hourly billing can sometimes seem daunting for the client because it is unknown how much the final fee will be. But some attorneys are able to make fairly accurate estimates of the time it takes to do things, especially if he or she has been working in that field for a while. Most often a client will have to pay an initial amount, called a retainer, and the attorney will use that amount to begin paying the hourly fees. The client will be asked to add to the retainer as it is depleted.

Some common times when hourly fees are used: trial and preparation for upcoming trial (whether civil or criminal), appeals work, estate planning, complicated divorce actions (disputed or when children are involved), custody hearings, motion hearings, or when projects are indefinite in scope or subject (like just keeping an attorney on retainer for business consultations).

Contingent Fees:

Contingent fees are like a combination of fixed fees and hourly fees. A contingent fee means that the attorney getting paid is contingent (relies on) the client winning some money at trial or in a settlement. The attorney will take some percentage of the money won as payment; this percentage is determined at the time the client hires the attorney. Sometimes clients are required to pay for all filing fees and court costs, but otherwise the client is not responsible for any payment if the case is lost.

The hourly part comes in if the attorney is fired prior to the settlement. Then the client often owes the attorney his or her normal hourly rate for work already completed. Again, an attorney will track these hours and will often keep the client updated about how much time has been spent on the case.

Some common times when contingent fees are used: anytime there is a civil lawsuit and a money settlement is expected (car accidents, employer discrimination, civil rights claims, worker’s compensation claims).

**Note** Contingent fees are not permitted in some situations because it is considered bad for the public. No contingent fee agreements are allowed in divorce cases, child custody cases, criminal cases, and other similar issues where paying the attorney more for winning does not promote the good of all persons involved.

Fifth Amendment: Right to Remain Silent

The inspiration from this post comes from an article that you may wish to read. It is an article that describes how one attorney took his client’s rights so seriously that he ended up in contempt of court because of it- and how one judge can be so far off base that having a dedicated attorney is not only a benefit, but an absolute necessity. See this ABA article: “Law Firm Says Judge Jailed Defense Attorney for Telling Client to Take the Fifth.”

The Fifth Amendment of the United States Constitution provides the right to remain silent, it is also less commonly known as the right not to incriminate oneself while testifying in court or speaking with law enforcement or prosecutors. You may choose to waive that right and confess, but all defendants are to be made aware of the right to remain silent.

The Fifth Amendment of the United States Constitution is mirrored by the Pennsylvania Constitution in Article I, Section 9, which states that an accused cannot be compelled to give evidence against himself. The Pennsylvania courts have interpreted the two provisions together, and use federal standards when examining the Pennsylvania privilege.

The right applies any time a witness (not just the defendant but any witness) is asked to testify or talk about a subject that may implicate him in a crime. If the witness thinks that his or her statement will show criminal involvement, then he or she has the right to take the Fifth and refuse to answer the question. This right applies anytime the statement may be used against the person, not just at trial, but at any time when the person is asked a question by judicial officers or law enforcement, from initial interrogation to the appeal.

Be careful, because even in a civil proceeding, if the statement could cause criminal proceedings, then the witness may take the Fifth. The same applies to an administrative proceeding. If you are in front of the state licensing board or the employment board or a similar board you have the right to take the Fifth there as well.

An attorney should be prepared to object to any question which may incriminate the witness- especially if the witness is also a defendant. Failure of the attorney to make an objection can result in criminal prosecution (for an ordinary witness), conviction (for the defendant), and a claim of ineffective assistance of counsel (to which every defendant has a Constitutional right).

If a judge has compelled a person to testify despite their claim of the Fifth Amendment, it is grounds for what is called reversible error. Reversible error means that upon appeal, the appellate court will reverse the trial court’s decision and send the issue back for a new trial. Compulsion was what the judge was attempting to do in the article which inspired this post.

The privilege does not extend to consequences which would be non-criminal; this includes liability in a civil suit, community disgrace, loss of employment, or even something which would cause a loss of probation if it does not create any criminal liability. The court will also not stop the jury from making any adverse inferences or assumptions based on the refusal to answer.