Probable Cause Hearings

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 What Is a Probable Cause Hearing?

A probable cause preliminary hearing is one element of the pre-trial stage of a criminal case. The hearing is usually referred to as a “preliminary hearing” or a “probable cause hearing”. In any event the hearing is held to determine whether probable cause exists to conclude that a crime was committed and the defendant was the perpetrator. It is a protection for criminal defendants in that it requires the prosecution to produce sufficient evidence to establish probable cause in order for the criminal case to go forward to trial

One definition of probable cause is as follows: “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true.”

Each state has its own rules regarding preliminary hearings, but usually if the defendant is in custody, it must be held within 30 days of the arraignment. If the defendant has pleaded guilty or no contest at the arraignment, then, of course, there is no need for a preliminary hearing and it would not take place. If the defendant is not in custody, then the preliminary hearing might not take place for 60 or 90 days after arraignment.

When is a Probable Cause Hearing Necessary?

Whether a probable cause hearing takes place depends in part on the law of the state in which the case is located. In most states, defendants who have been charged with felony offenses have the right to a probable cause hearing. Defendants can also waive a probable cause hearing, that is, indicate to the prosecution that they do not want the hearing to take place. Those charged with misdemeanors do not have the same right to a probable cause hearing.

Some states hold preliminary hearings in every serious case, while other states will hold the hearings when they are requested by the defense. Other states may only hold probable cause hearings in felony cases, but not in misdemeanor cases

A person should consult with a qualified criminal defense attorney to make sure that they protect their rights concerning a probable cause hearing. A defendant would want the advice of an experienced criminal defense attorney before deciding whether to waive their right to a preliminary hearing or whether they should request one.

What Happens When You Waive a Probable Cause Preliminary Hearing?

If a defendant waives a preliminary hearing, then the hearing does not take place. The next step in the process would probably be a pre-trial hearing at which the case would be set for trial. Of course, the waiver of a preliminary hearing does not mean that the defendant is pleading guilty. The waiver has no effect other than to make holding of the hearing unnecessary.

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 it was committed by the defendant. Other issues may be discussed, such as bail, or whether additional charges are being added to the case or possibly charges dismissed.

The purpose of the hearing is to establish whether the prosecution has enough evidence against the defendant to take the case to trial. The prosecution does not have to prove 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 that the defendant committed the crime.

The prosecutor calls witnesses to testify, and can introduce physical evidence also in an effort to persuade the judge, who presides at the hearing and renders the decision, that the case should go to trial. The defense has the right to cross-examine the prosecution’s witnesses and can challenge the physical evidence presented against the defendant, in order to persuade the judge that the prosecutor’s case is not strong enough.

When the hearing has finished, the defense may make a motion to dismiss and argue that the evidence submitted by the prosecution is insufficient. If the judge agrees with the defense, the judge will dismiss the case. If the judge thinks that the prosecution has met its burden, it denies the defense’s motion to dismiss and the case is allowed to go forward to trial.

Can Charges Be Dropped at a Probable Cause Hearing?

At the conclusion of a preliminary or probable cause hearing, the charges can be dropped. The prosecutor could decide that there is not enough evidence to prove at a trial that the defendant is guilty beyond a reasonable doubt. The prosecutor could then dismiss the case. This is unlikely.

As mentioned above, another possible outcome is that the judge grants a defense motion to dismiss. This would mean that the prosecution comes to an end and the defendant would go free of the criminal charges. Or, the judge could dismiss some charges but rule in favor of other charges standing. In this situation, the case would go forward with the surviving charges.

How is Probable Cause Established?

The prosecution wants to present enough evidence to establish probable cause, but would prefer not to present all the evidence they have. The prosecution is at a disadvantage in that when it presents its evidence, it is showing its hand, so to speak, to the defense. After the preliminary hearing, the defense knows about the evidence the prosecution has and is therefore in a better position to attack the prosecution’s case at trial.

The prosecution may well have the police officer who arrested the defendant. The arresting officer is likely to be a key witness in many criminal cases. The arresting officer may be a witness to the crime or to part of the crime at least and is an invaluable source of information about the evidence, how it was obtained and how it was analyzed..

In addition, the prosecution might present a key eye witness. An eye witness is a person who personally saw the defendant commit the crime, so can give testimony that is considered the most persuasive. Members of a jury and judges also place a high value on the testimony of an eye witness.

Today, of course, video films from cameras posted in public places are frequently used as evidence as a defendant can be caught on film in the act of committing an offense. In addition, physical evidence such as blood stains, fibers from the clothing of a defendant left at the scene of a crime, and hair, which can all give rise to DNA evidence. Then, of course, shoe prints or footprints and fingerprints are also types of physical evidence that a prosecutor might use to establish probable cause.

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

The defendant’s rights at a preliminary hearing are as follows:

  • The right to attend the hearing in person;
  • The right to be represented by an attorney at 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 by making a motion to dismiss and through argument;
  • The right to waive the probable cause hearing;
  • The defendant can present evidence for the defense and refute the prosecutor’s evidence, but usually does not; and
  • The right to obtain a copy of the transcript of the preliminary hearing, which can be used as evidence in the future, especially regarding statements made by the prosecutor, prosecutors witnesses, and the defendant themselves.

Again, if a defendant chooses to waive their right to a probable cause hearing, that does not mean that the defendant is admitting guilt. It is a waiver of the preliminary hearing only and has no other effect.

And, again, the hearing is intended to establish whether the prosecution has enough evidence to show probable cause, and charges can be dismissed if the prosecution is unable to show probable cause to support any charge against the defendant..

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

If you have been charged with a criminal offense and your preliminary hearing or probable cause hearing is coming up, you should contact an experienced criminal defense attorney as soon as possible.

Your attorney can tell you whether it is in your interest to waive the hearing or attend and participate. They can advise you as to what degree of participation, if any, would be in your interest.


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