Probable cause hearings are a part of the pre-trial stages of a criminal case. They are intended to determine whether probable cause existed (usually in relation to the arrest of the defendant or a search for evidence).

Probable cause is a requirement in criminal cases. Basically, there must be sufficient reason, based on objective facts, to believe that the suspect has committed a crime or that certain property is connected with a crime. Law enforcement officers must have probable cause before they can make an arrest or seize evidence.  

When is a Probable Cause Hearing Necessary?

Defendants who have been charged with felony offenses have the right to a probable cause hearing (although those charged with misdemeanors do not have the same right). Depending on your state’s rules, the probable cause hearing may be optional.

Some states hold preliminary hearings in every serious case, while other states will allow hearings upon request by the defense. Other states may only hold probable cause hearings in felony cases.  

It is a good idea to consult with a qualified criminal defense attorney to make sure that you protect your rights concerning a probable cause hearing. While you may have a right to a probable cause hearing, there are two instances when the hearing becomes necessary.  

The first instance happens before an arrest occurs. When law enforcement requests an arrest warrant from the court, authorities need to establish probable cause before the court issues the warrant.

The second instance where a probable cause hearing is necessary occurs after the arrest occurs — usually to determine whether the arrest occurred legally. If law enforcement officers had probable cause to make the arrest, then the arrest will be considered legal. This second type of hearing is sometimes called a preliminary hearing, and can happen at the same time or in connection with arraignment.

One more point to consider: generally speaking, if the arrest was made pursuant to a warrant, then a probable cause hearing is not necessary. The issue of probable cause was already determined by the court when the arrest warrant was issued.

What Issues are Addressed in a Probable Cause Hearing?

Probable cause hearings usually address two main issues: whether the crime was committed within the court’s jurisdiction, and whether probable cause existed to justify the arrest or seizure of evidence. Other issues may be discussed, such as bail (especially if the hearing is being conducted in conjunction with arraignment), or any other charges that may be added to the case.

The hearing is intended to establish whether the prosecution has enough evidence against the defendant to take the case to trial. The prosecution does not have to show their case beyond a reasonable doubt at this point — they only have to show that it is more likely than not that a crime was committed, and also that the defendant committed the crime.  

How is Probable Cause Established?

Probable cause is usually established through the presentation of several different forms of evidence. These types of evidence can include physical evidence, forensic evidence, or testimonial evidence.  

At the probable cause hearing, the normally strict rules of evidence are not in effect yet, as trial has not formally begun. Some states allow the prosecution to rely on hearsay testimony (or other testimony that would otherwise be inadmissible at trial) at the probable cause hearing.

Evidence that may have been obtained illegally may not be excluded for the purpose of the hearing. (Although that evidence, if illegally obtained, may be excluded from trial.) Typically, the law enforcement officer who initiated the arrest will be called to testify regarding their knowledge of the circumstances of the case.

What Rights does a Defendant have in a Probable Cause Hearing?

Even though trial has not officially begun, the defendant still has legal rights, even in the context of a probable cause hearing. Among these rights, the defendant has:

  • The right to appear in person at the hearing;
  • The right to be represented by a lawyer during the hearing;
  • The right to cross-examine witnesses who have been called to testify by the prosecution;
  • The right to contest the existence of probable cause; and
  • The right to waive the probable cause hearing.

If you do choose to waive your right to a probable cause hearing, that does not mean that you are admitting guilt. Formal pleas in the case (like pleading “guilty” or “not guilty”) don’t happen until a formal arraignment.  

Because the hearing is intended to establish whether the prosecution has enough evidence to take the case to trial, cases can be dismissed if the prosecution is unable to prove that probable cause existed at the time of arrest.

Do I Need a Lawyer for Help with a Probable Cause Hearing?

If you have been arrested and are facing criminal charges, it is in your best interests to enlist the services of an experienced criminal defense lawyer. Probable cause hearings can become complicated very quickly, and you will want to have someone with that kind of expertise on your side.  

Your attorney will be able to talk you through the facts of the case, protect your rights during the course of the case, and can represent you in court during your hearing. Depending on your agreement, can also represent you in court at trial, if it comes to that.