New SCOPA ruling about hearsay and preliminary hearings

SCOPA rules on hearsay and preliminary hearings in PA

The Supreme Court of Pennsylvania (SCOPA) just moments ago changed the rules when it comes to hearsay and preliminary hearings. It announced an opinion holding that hearsay evidence alone is insufficient to establish a prima facie case at a preliminary hearing. This overruled previous case law which allowed otherwise.

What exactly does this mean?

What is hearsay?

Well, hearsay evidence is basically testifying in court about something that someone else told you.

For example, when a detective who wasn’t at the scene of a crime testifies as to what a witness told them about what happened, but that witness is not there to testify in court.

What is prima facie?

A prima facie case level of proof in our criminal justice system. It is how much evidence the government must show at the preliminary hearing for the case to continue on (called “bound over”) for the Court of Common Pleas. Here’s a chart about relative levels of proof.

In order for a case to go forward, the government must prove

  • that a crime was probably committed, and
  • that the defendant was probably the person who did it.

That’s prima facie in a nutshell.


Since 2014 the Commonwealth has been able to use hearsay evidence only to establish a prima facie case. Because of this ability to bootstrap evidence without testing the evidence by cross-examination of the fact-providing witnesses, preliminary hearings have been little more than a rubber stamp for the government. In other words the government usually got an empty goal with the ball all one on from one foot away. Absent something really unusually, it was going to be a free pass for the government.

Before this ruling, the law forced MDJs in PA to rubber stamp cases because of hearsay rules

In today’s Supreme Court case, Commonwealth v. McClelland, the Pennsylvania Supreme Court addressed this issue by looking at the previous cases of

  • Commonwealth v. Ricker, a 2014 case holding that hearsay alone is sufficient to establish a prima facie case,
  • Commonwealth ex rel. Buchanan v. Verbonitz, a 1990 plurality opinion (meaning that 5 justices agreed on the outcome, but did not have the same rational for coming to that conclusion) holding that hearsay evidence was not sufficient for establishing a prima facie case, and
  • Rule 542(E) of the Rules of Criminal Procedure that do allow for hearsay at a preliminary hearing.

The bottom line legally:

The SCOPA in McClelland found that though the opinion in Verbonitz is a plurality opinion, because a “five-member majority of the Court held that hearsay alone is insufficient to establish a prima facie case at a preliminary hearing “because to do so violates principles of fundamental due process,” it is binding precedent. The Court further held that Rule 542(E) does not permit hearsay alone to establish all the elements of all crimes for purposes of establishing a prima facie case at a preliminary hearing. In coming to this conclusion, the SCOPA specifically disapproved of the decision in Ricker and held that the Commonwealth cannot use hearsay alone to establish a prima facie case at a preliminary hearing.

So what does this mean in plain English?

Now the scales of justice are a little bit more even. When you have a preliminary hearing, the Commonwealth has to put on some direct evidence from non-hearsay sources. Now with this ruling, a preliminary hearing is more than a rubber stamp. This ruling gets rid of the days where the Detective or police officer could get on the stand alone and describe what others saw with the result being the case being held over (bound over) to the next level court.

This will be particularly important in a cases such as sex assault on a child where the child is the only witness and the only direct evidence that establishes the actual elements of the crime. In the past, the Commonwealth would have an officer testify as to statements that the child witness said during an interview, but the child would not actually come to the preliminary hearing. If this is the ONLY evidence that the Commonwealth has, the government is in trouble. In that instance, this ruling requires the child witness to appear now. The defense attorney now can do his or her job and cross-examine the child witness.

Important Exception

But this doesn’t mean that every witness that the government would call at trial has to appear. This ruling allows the DA to establish some of the elements of the crime with hearsay evidence. For example, if a DUI driver crashes into a parked car, the court will not require the owner of the car to testify as to ownership or damage of the car at the preliminary hearing. Hearsay evidence as to that element will be permitted. It just can’t be all hearsay. The Commonwealth must put on some direct evidence to meet their burden at a preliminary hearing.

What you can do to save yourself or your loved one who is in trouble:

Call 717-657-3900 to speak with one of the attorneys at The McShane Firm. We are exclusively a criminal defense law firm. We are ready to fight for you.

Suggested additional reading: 

Our Clients are entitled to a Bill of Rights which states:

  • Our clients have the right to expect, we will be proactive in communication. You will hear it from us first. We will return all phone calls, texts and emails promptly.
  • Our clients have the right to expect plain speaking, straight shooting. No B. S.
  • Our clients have the right to expect us to do it right the first time, every time.
  • Our clients have the right to expect us to be on time and professionally prepared for all court appearances, and all meetings.
  • Our clients have the right to expect that they will be fully informed at all times.

This is our promise to you. Call today to get us on your side: (717) 657-3900.

PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.