This article is in reference to what went on in Bill Cosby’s trial on July 7th, 2016. DA Steele argued and Judge O’Neill agreed that it was okay to use hearsay at a preliminary hearing against Dr. Cosby because it was “the law of the land.” This was an assault (sexual assault?) on the Sixth Amendment right of all Americans to confront their accusers at trial. This has been a right since 1791, at least until now.
This is from the first “Daily Times News”article above: “While the state Supreme Court is currently reviewing the Superior Court’s decision in Ricker, Steele said “it is still binding precedent” and argued unless the rule is overturned, “this is the law of the land.”
Is the allowing of “Hearsay” testimony at preliminary hearings instead of readily available witnesses, really the “law of the land?” Have Sixth amendment rights to cross examine witnesses really been eliminated from preliminary trial hearings?
This is what Steven F. Fairlie, the chair of the Montgomery County Criminal Defense Committee writes about the ruling Steele and Judge O’Neill cited. PA Superior Court: Hearsay Enough for Prima Facie Case?
Hearsay is an out-of-court statement used to prove the matter asserted. Generally, hearsay is excluded from legal proceedings because it is deemed unreliable, subject only to explicit and carefully defined exceptions (i.e. a “dying declaration” is admissible to prove the identity of the assailant and a “present sense impression” is admissible because statements made simultaneously as the information conveyed is perceived by the declarant is more likely to be accurate). Hearsay not otherwise considered reliable is excluded because a fact-finder cannot assess the credibility of the declarant through her own perception. In other words, the prohibition of hearsay prevents “he said; she said” situations from being given too much undue credence.
However, hearsay is admissible at preliminary hearings in Pennsylvania. The preliminary hearing is an initial stage of the criminal adversarial process whereby the prosecution must prove that it has the specific evidence necessary, if later proved true beyond a reasonable doubt at trial before a jury, for the defendant to be convicted of the crime charged. Preliminary hearings are held in front of a magisterial district judge, an elected position that does not require a law degree.
The admissibility or inadmissibility of hearsay in a criminal case is an especially important decision for the reliability of certain statements to be considered. As anyone who has ever sat for jury duty will note, one of the first questions a defense attorney or a prosecutor may ask is whether or not the potential juror will be especially swayed (for better or worse) by the testimony of a police officer. Preliminary hearings are generally considered to be prosecution-friendly, where the Commonwealth has a low burden. Nevertheless, the hearing serves an important role in holding the prosecution accountable.
This reality is what makes the intermediate appellate court’s decision in Ricker all the more alarming, and, perhaps, suspect. As the decision in Ricker stands, a prosecutor can in essence “phone it in” by having some different officer read the notes of the investigating officer, or worse yet, an officer provide his version of what the complaining witness said. There are absolutely no safeguards to such a system.
Certainly, we should be “alarmed” at a system where “there are absolutely no safeguards.
This is from the 2010 University of Illinois Law Review article entitled “THE CONFRONTATION CLAUSE AND PRETRIAL HEARINGS: A DUE PROCESS SOLUTION” by Christine Holst (pg 1614). She is talking about a 1987 Supreme Court Decision in “Pennsylvania V. Ritchie,” the last Supreme Court Decision in a case such as this.