118.1Probable Cause Hearings
- Defendant has a statutory right to a probable cause hearing on all felony (and related misdemeanor) charges within 15 working days of the first appearance, unless the charge has already been indicted.
- In practice, most probable cause hearings are waived by the defendant because the scope of the hearing is limited, and the state is not barred from indicting the defendant even if the court does not find probable cause at the hearing.
Statutory Basis and Purpose of a Probable Cause Hearing
There is no Constitutional right to a probable cause hearing. See Gerstein v. Pugh, 420 U.S. 103 (1975) (due process does not require full probable cause hearing). By statute, however, a probable cause hearing is held (unless waived) for cases within the original jurisdiction of superior court, see G.S. 15A-601(a), which generally includes felonies plus any accompanying misdemeanors described in G.S. 7A-271. Thus, a probable cause hearing may be held for both a felony, such as involuntary manslaughter, and impaired driving, a misdemeanor, if the two charges arose from a single event like a vehicle collision in which the defendant was driving while impaired and killed someone. Because a prosecutor should not ordinarily resolve an allied misdemeanor in district court before trying the felony in superior court (see the related entry on Double Jeopardy), the prosecutor should address both the felony and the related misdemeanor at this hearing. Alternatively, the prosecutor could dismiss the related misdemeanor that is charged in a separate instrument, and then add the misdemeanor as a related count to a subsequent felony indictment, in accordance with G.S. 7A-271(a) and G.S. 15A-926(a).
The purpose of a probable cause hearing is to determine whether probable cause exists to prosecute a defendant, so that the defendant will not be unjustifiably tried. Discovery of the state’s evidence is not a purpose of the hearing. State v. Hudson, 295 N.C. 427 (1978); see G.S. 15A, Article 30, Official Commentary (“affording discovery opportunities to the defendant is not a purpose of the proceeding”) (emphasis in original).
When and Where a Probable Cause Hearing is Required
At a defendant’s first appearance, the district court judge must schedule a probable cause hearing within fifteen working days. See G.S. 15A-606(a) and (d). The probable cause hearing may not be held sooner than five working days unless defendant and prosecutor consent to earlier scheduling. If a session of district court is not scheduled in the county within that time, the judge must schedule the hearing for the first day of the next available session.
A defendant has a right to a probable cause hearing in felony cases only before an indictment has been returned by a grand jury. State v. Lester, 294 N.C. 220 (1978). After an indictment has been returned in a case, or after an information is filed in superior court upon waiver of indictment, the case is within the jurisdiction of superior court and the district court has no jurisdiction to hold a probable cause hearing. G.S. 15A-611(d); see also G.S. 15A-611, Official Commentary. Therefore, the state can avoid a probable cause hearing by obtaining an indictment before the probable cause hearing. See State v. Lester, 294 N.C. 220 (1978) (probable cause hearing not prerequisite to indictment); see also State v. Hudson, 295 N.C. 427, 431 (“it is well settled that there is no necessity for a preliminary hearing after a grand jury returns a bill of indictment”). Similarly, a probable cause hearing will not be held if an information is filed on waiver of indictment. See G.S. 15A-611(d).
If a probable cause hearing is held, it must be held before a district court judge in the county where the charged offense occurred. See G.S. 15A-131(b) and (c). However, a probable cause hearing may be held in a county other than where the charged offense occurred, if both parties consent to a change of venue and sign a written waiver of venue in compliance with G.S. 15A-133.
Continuing the Probable Cause Hearing
The probable cause hearing may be continued for “good cause” upon a motion by either the state or the defendant. G.S. 15A-606(f). If the motion is made less than 48 hours before the time set for the hearing, the party seeking the continuance must make a showing of “extraordinary cause” to obtain a continuance. This 48-hour requirement is intended to avoid inconveniencing witnesses subpoenaed to testify at a probable cause hearing and to prevent unnecessary delay in the procedure. See G.S. 15A-606, Official Commentary. The requirement is not intended “for the protection of defendants.” State v. Siler, 292 N.C. 543, 555 (1977). A defendant is not entitled to have the case dismissed based on a violation of G.S. 15A-606’s procedures, unless the defendant shows that the case was prejudiced by either a delay in holding the probable cause hearing or a lack of “timely” notice of continuances. State v. Siler, 292 N.C. 543 (1977).
Waiver of Probable Cause Hearing;
The defendant may waive his right to a probable cause hearing. See G.S. 15A-606(a) and (g). A waiver of a probable cause hearing must be executed in writing. AOC charging forms contain the language and space for executing this waiver. See, e.g., AOC-CR-100 (Warrant for Arrest, side two). The fact that the defendant either waived or demanded a probable cause hearing may not later be used as evidence at trial. G.S. 15A-606(b).
Issues to be Decided at Probable Cause Hearing
Pursuant to G.S. 15A-611(b), there are only two substantive issues to be decided at a probable cause hearing:
- Is there probable cause to believe the charged offense was committed?
- Is there probable cause to believe that the defendant committed the charged offense?
After the Probable Cause Hearing
At the conclusion of the probable cause hearing, the judge must take one of three actions as directed by G.S. 15A-612:
- If the judge finds probable cause as charged, or probable cause for a lesser included felony offense, the judge must bind defendant over to superior court and note such findings in the case record. G.S. 15A-612(a)(1).
- If the judge finds no probable cause as charged, but finds probable cause to a lesser included misdemeanor, the judge may:
- Schedule the case for trial in district court on the misdemeanor charge not sooner than five working days nor later than fifteen working days after the date of the scheduling order [G.S. 15A-612(a)(2) and 15A-613]; or
- Accept a plea of guilty or no contest to the misdemeanor charge with the consent of the prosecutor [G.S. 15A-613(a)]; or
- Proceed to try the misdemeanor offense immediately with the consent of both the prosecutor and defendant. [G.S. 15A-613(2)].
- If the judge finds no probable cause for the charged offense or any lesser-included offense, the judge must dismiss the case. G.S. 15A-612(3). Dismissal does not bar further prosecution or indictment. State v. Cradle, 281 N.C. 198 (1972).
Indicting after a finding of no probable cause
Because jeopardy does not attach at a probable cause hearing, a prosecutor may still indict or otherwise institute a new charge even if the judge found no probable cause and dismissed the case, or found probable cause only for a lesser-included felony or misdemeanor offense. G.S. 15A-612(b). As a practical matter, however, the prosecutor should carefully consider the reasons why the court failed to find probable cause, and take steps to correct any deficiencies in the case before presenting it to the grand jury.
Additional Considerations: Pretrial Release and Discovery
As noted above, once the probable cause hearing is concluded, or upon a waiver of probable cause by the defendant, the defendant will either be bound over to superior court or calendared for trial in district court. When that occurs, the judge must again review the defendant’s eligibility for pretrial release. See G.S. 15A-614; -534. Waiver of the probable cause hearing initiates the deadline for the defendant to request statutory discovery from the state. A defendant represented by counsel before waiver of the probable cause hearing has ten working days after waiver to request voluntary discovery. See G.S. 15A-902(d). If a represented defendant is indicted or consents to a bill of information before a probable cause hearing is held or waived, the ten working days runs from notice of the indictment or consent to the information. Id.
Consequences of Failure to Conduct Probable Cause Hearing
Failure to conduct a probable cause hearing in a case does not affect the later validity of a trial unless a defendant shows prejudice. G.S. 15A-1443(a); State v. Brunson, 221 N.C. App. 614 (2012) (defendant did not show prejudice due to failure to hold probable cause hearing – probable cause was otherwise established on two occasions: at issuance of warrant and before the grand jury); State v. Hudson, 295 N.C. 427 (1978). Furthermore, a probable cause hearing is not a prerequisite to seeking a bill of indictment or proceeding by criminal information. Therefore, a failure to conduct a probable cause hearing does not prevent prosecution of the defendant in superior court. State v. Oliver, 302 N.C. 28 (1980).