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Probable Cause Hearing — Definition

Chloe Meltzer | October 19, 2022

Legal Expert
Chloe Meltzer, MA

Chloe Meltzer is an experienced content writer specializing in legal content creation. She holds a degree in English Literature from Arizona State University, complemented by a Master’s in Marketing from California Polytechnic State University-San Luis Obispo.

Edited by Hannah Locklear

Hannah Locklear
Editor at SoloSuit
Hannah Locklear, BA

Hannah Locklear is SoloSuit’s Marketing and Impact Manager. With an educational background in Linguistics, Spanish, and International Development from Brigham Young University, Hannah has also worked as a legal support specialist for several years.

Summary: A probable cause hearing, also known as a preliminary hearing, requires the prosecutor to show there is enough evidence to charge the defendant. Here is SoloSuit's guide to probable cause hearings and how they work.

One element of the pre-trial stage of a criminal case is a probable cause preliminary hearing. This is referred to as either a “preliminary hearing” or a “probable cause hearing.” The hearing has the purpose of determining whether or not there is probable cause that a crime was committed and that the defendant was the cause of it. It is often used for the protection of criminal defendants, to ensure that there is enough evidence to push the criminal case to go to trial.

One definition of probable cause is that there must be a reasonable amount of suspicion, which is supported by circumstances. In other words, the purpose of a preliminary hearing is to force the prosecutor to prove that they have enough evidence to charge the defendant.

Although each state has its own rules and guidelines for preliminary hearings, if a defendant is in custody, typically they must be held within 30 days of the arraignment. If the defendant has pleaded guilty or no contest, then there will be no preliminary hearing. Should the defendant not be in custody, then the preliminary hearing may not take place for up to 90 days after arraignment.

When does a probable cause hearing take place?

The law of the state in which the case is located will dictate when a probable cause hearing takes place. However, most often defendants who have been charged with a felony will be given a probable cause hearing. This is considered a right, but defendants also have the right to waive a probable cause hearing. Typically defendants charged with misdemeanors do not have the same right to a probable cause hearing. In most states, a preliminary hearing is considered very serious, and in others, they are only held when a defendant requests it.

The purpose of a probable cause hearing

The purpose of a probable cause hearing is to establish whether or not there is enough evidence to bring the case to trial. Although the prosecution does not have to prove their case beyond a reasonable doubt, they will eventually need to do this. However, at this point, they will only need to show that there was most likely a crime committed by the defendant.

What happens at a probable cause hearing

There are usually two common issues addressed at a probable cause hearing:

  1. If the crime was committed within the court's jurisdiction.
  2. If the crime was committed by the defendant.

Typically other issues will also be discussed, such as bail, or any additional charges. They may also discuss whether the charges could possibly be dismissed.

During a probable trial, the prosecutor calls witnesses to testify. They may also introduce physical evidence at this time to push the judge to take the case to trial. The defense also has the right to then cross-examine any witnesses brought forth by the prosecution. The defendant's team can also challenge the physical evidence presented against the defendant, and work to persuade the judge that the prosecutor's case is not strong enough.

After a preliminary hearing is over, the defense can make a motion to dismiss. This is usually accompanied by an argument that the evidence submitted by the prosecution is insufficient. If the judge agrees, the case will be dismissed. However, if the prosecution has made a strong enough case, then it will deny the motion to dismiss, and a trial will be held.

What happens if you waive a probable cause hearing

If a defendant waives a preliminary hearing, then the hearing will simply not happen. The next step is to go to a pre-trial hearing, which is when the trial is planned. Even if you waive a preliminary hearing, it does not mean that you plan to plead guilty. It will not push the jury to learn about this either.

If you have been convicted of a crime and summoned to court, waiving a probable cause hearing is something you should carefully weigh before doing. Consult with a qualified criminal defense attorney to make sure that you protect your rights. You want to ensure that you explore every avenue to get the best possible outcome before waiving your hearing.

What happens if the charges are dropped at a probable cause hearing?

If the conclusion to a probable cause hearing involves the charges being dropped, it is the result of there not being enough evidence to potentially prove guilt at a trial. Although this is unlikely, this means that there is no way the defendant is guilty beyond a reasonable doubt.

Another option is the judge granting a motion to dismiss, which is when the charges are dropped. In some cases, some of the charges may be dropped, while others continue to be explored. This would lead to a trial, but only for the specific charges applied.

Rights of the defendant in a probable cause hearing

In general, a probable cause hearing is held to protect the rights of the defendant and allow them to make their case. The defendant's rights that are protected at a preliminary hearing include:

  • The right to attend the hearing in person
  • The right to be represented by an attorney
  • The right to cross-examine witnesses called upon by the prosecution
  • The right to contest the existence of any probable cause
  • The right to make a motion to dismiss
  • The right to waive the probable cause hearing
  • The right to present evidence for the defense and refute the prosecutor's evidence
  • The right to obtain a copy of the transcript of the preliminary hearing, and use this as evidence in the future

Although the defendant can waive their right to a probable cause hearing, it does not mean that they are admitting guilt. It has no effect other than waving the hearing. However, you will need to decide for yourself whether or not the prosecution has enough evidence to show probable cause, which can eventually lead to the dismissal of the case altogether.

Respond to a civil lawsuit

Probably cause hearings usually only happen in criminal cases. If you are involved in a civil lawsuit, this type of hearing most likely won't happen. However, you may have to attend a pretrial to schedule the date of your actual trial for a civil lawsuit. For example, if you are being sued for a debt that you owe, you may have to appear in court if you plan to fight the case.

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