What Happens at a Probable Cause Hearing?

By Joseph Nicholson

Occasions for a Probable Cause Hearing

There are two reasons a probable cause hearing might be held. The first occurs prior to an arrest when, upon the testimony of the Attorney General or a private citizen, a judge is asked to issue a warrant for someone's arrest. The second occurs after an arrest, either at the arraignment for a misdemeanor, or prior to arraignment for a felony. The latter occurrence is typically called a preliminary hearing. In both cases, the judge or magistrate will be presented with evidence and must decide whether there are grounds to detain the accused person and hold him for trial. The standard for probable cause is used by the judge to determine whether there is credible fact-based evidence linked specifically to the defendant that makes it reasonably likely that she might have committed a crime.

Issues at a Probable Cause Hearing

In a hearing to determine probable cause, a court must address two important issues. The first is whether a crime was committed within the jurisdiction of the court. State courts are usually limited in jurisdiction to the county in which they sit. Crimes that involve actions in multiple states might have proper jurisdiction in a federal rather than state court. The second issue is the finding of probable cause. The evidence presented can be physical, forensic or testimonial and is not restricted to the normal rules of evidence in a criminal trial. So, for example, hearsay can be presented in a preliminary hearing but not before a jury. Evidence is also not excluded on the basis of whether or not it was illegally obtained. This decision will be made later, during the trial, if probable cause is affirmed. Also reviewed at a preliminary hearing are the amount of bail and any additional charges that might be added after an arrest.

Defendant's Rights

Defendants have few rights at probable cause hearings that occur prior to their arrest. They are unlikely to ever know it occurred until after a warrant is issued and they're arrested. Even so, after they're arrested, they have the right to a preliminary hearing where the probable cause can be reviewed. The defendant has the right to appear and be represented by legal counsel. They can cross-examine the prosecution's witnesses and contest the assertion of probable cause. A defendant also has the right to waive a preliminary hearing, essentially conceding that probable cause existed, which often occurs in situations where the probable cause is obvious and manifest. This is not an admission of guilt, however, nor is it a plea. A formal plea is not entered until an arraignment. If probable cause is not found at a preliminary hearing, the defendant is released, but most jurisdictions allow them to be re-arrested if probable cause is subsequently determined to be present. Not every jurisdiction uses the preliminary or probable cause hearing process, however. Some hold probable cause hearings only in felony cases, whereas others use a grand jury system, where a jury of citizens rather than a judge or magistrate determines whether probable cause exists.

About the Author

Joseph Nicholson is an independent analyst whose publishing achievements include a cover feature for "Futures Magazine" and a recurring column in the monthly newsletter of a private mint. He received a Bachelor of Arts in English from the University of Florida and is currently attending law school in San Francisco.