Key Concepts

  • A probable cause hearing is a formal adversarial proceeding before a district court judge, but the rules of evidence are less strict and the burden of proof is lower – requiring only a “fair probability” that a crime was committed and the defendant committed it.
  • If the defendant waives a probable cause hearing or the state indicts the defendant prior to the hearing, then no hearing is necessary.
  • If a hearing does take place, the prosecutor should plan ahead and consider which approach (minimal presentation of basic facts vs. detailed examination of issues and witnesses) would be more beneficial for that particular case.

Adversarial Hearing, Right to Counsel

Although the specific practices for holding a hearing will vary somewhat by district, the basic procedural requirements are laid out in G.S. 15A-611. This is an adversarial hearing, so a prosecutor represents the state and the defendant must be represented by counsel, unless waived. See G.S. 15A-611(a)(1); G.S. 15A-611(a)(2), (c). A probable cause hearing is a critical stage in a criminal proceeding at which an indigent defendant is entitled to court-appointed counsel, so the court must take appropriate action to secure defendant’s right to counsel (or waiver). See G.S. 15A-611(c); Coleman v. Alabama, 399 U.S. 1 (1970); G.S. 7A-451(b)(4). Witnesses must testify under oath or affirmation, and they are subject to cross-examination. G.S. 15A-611(a)(4). The defendant may also choose to testify. G.S. 15A-611(a)(3).

Admissibility of Evidence at Probable Cause Hearing

The rules of evidence, other than those concerning privileges, do not apply at a probable cause hearing. See G.S. 8C-1, Rule 1101(b)(3) (rules of evidence inapplicable to “probable cause hearing in criminal cases”). However, there is an important limitation on the admissibility of evidence at a probable cause hearing contained within G.S. 15A-611(b) itself, which requires the state to show “by nonhearsay evidence, or by evidence that satisfies an exception to the hearsay rule” that there is probable cause to believe the charged offense was committed, and the defendant committed it.
There are two exceptions to the statutory requirement that only "nonhearsay evidence" may be used:

  1. Under G.S. 15A-611(b)(1), the state may introduce a report by an expert or technician concerning the results of an examination conducted in connection with the case, including the results of that testing if contained within the report. For example, the state may introduce an SBI report finding a fingerprint match to the defendant, or the positive results of a gunshot residue test conducted on the defendant’s hand.
  2. Additionally, if there is “no serious contest” as to its reliability, hearsay is admissible to prove value, ownership of property, possession of property by someone other than the defendant, and the lack of owner/possessor’s consent to the defendant’s taking of property or breaking/entering of premises. Reliable hearsay is also admissible to show chain of custody, authenticity of signatures, and the existence and text of government agency ordinances and regulations. See G.S. 15A-611(b)(2).
Practice Pointer

Issue #1:  “Reliable hearsay”
Reliable hearsay is admissible at a probable cause hearing to prove the various types of evidence enumerated in G.S. 15A-611(b)(2). For example, testimony from a law enforcement officer about statements made to that officer by the victim of a forgery and uttering, break-in, or larceny showing that the defendant lacked permission to sign or pass a check, enter the premises, or take the property should be sufficient to prove that element of the offense at a probable cause hearing, making direct testimony from the victim unnecessary.
A prosecutor could also show that a law enforcement officer’s testimony reporting the victim’s statements is “reliable” [and therefore admissible under G.S. 15A-611(b)(2)] by securing an affidavit from the victim. For example, an affidavit could state that the victim did not sign the check, authorize defendant to sign or pass the check, consent to defendant entering victim’s home or taking victim’s property.
Alternatively, in some cases the prosecutor might want to have the victim appear and testify, so that the prosecutor can evaluate what kind of witness the victim will be at trial. See more on this in Section D, below.

Practice Pointer

Issue #2:  “No serious contest”
Reliable hearsay on certain elements is admissible under G.S. 15A-611(b)(2) if there is “no serious contest” as to its reliability. If the defense objects to the admission of hearsay evidence, the prosecutor should challenge the defense to articulate a legitimate reason why there is a “serious contest” regarding the reliability of the evidence. The Official Commentary to G.S. 15A-611 clearly explains that one of the main purposes of G.S. 15A-611(b)(2) is to avoid “forcing the State to bring all its witnesses to the probable cause hearing and in effect turn it into a mini-trial.” In other words, no legitimate purpose is served by forcing the state's witnesses to testify about matters that are not disputed.

Probable Cause Hearing is NOT a Suppression Hearing

A judge at a probable cause hearing is “not required to exclude evidence because it was acquired by unlawful means.” Therefore, the judge may accept and consider evidence offered at the probable cause hearing, even if that evidence was allegedly unconstitutionally obtained. G.S. 15A-611(b). Furthermore, even if a judge suppresses certain evidence at the probable cause hearing, that ruling does not preclude the state from later submitting the issue to a superior court judge. G.S. 15A-612(b); G.S. 15A-611, Official Commentary. The suppression of evidence at a probable cause hearing likewise does not bar further prosecution or indictment of the offense. See State v. Lay, 56 N.C. App. 796 (1982) (even if district court judge suppressed evidence and found no probable cause at preliminary hearing, “the State would not have been precluded from seeking an indictment on the felonies, and the District Court's ruling would have no legal effect whatsoever”).

Whether To Have Hearing

Most defendants waive probable cause hearings, but even when a defendant requests a hearing, the prosecutor still has some measure of control over whether a hearing occurs. For example, the state may obtain a true bill of indictment before the hearing date, or negotiate a guilty plea by information to a lesser charge, or, in appropriate circumstances, dismiss the original charges and recharge them later. See, e.g., G.S. 15A-611(d); State v. Lester, 294 N.C. 220 (1978). Therefore, if the defendant requests a probable cause hearing, the prosecutor should consider some of the benefits and disadvantages of conducting a hearing before deciding how to proceed.

  1. Advantages to Holding a Probable Cause Hearing
    1. Prosecutor learns the case, sees witnesses’ demeanor, and avoids procrastination.
    2. Screening – case may come across better or worse in court than it looked on paper.
    3. Defendant feels like he had his “day in court”—as do the victims, witnesses, and investigators. (This can be surprisingly effective in resolving difficult cases.)
    4. State may learn defense arguments, strategy, and tactics.
    5. Issues in the case become more focused – a case that could have ended up as a jury trial might narrow down to a single motion to suppress.
    6. Judge might make the difficult decision for the state (that is, find no probable cause in a marginal case).
    7. Assists criminal justice system: both sides learn the case better so justice is more likely to be accomplished, and cases are disposed of in a prompt and orderly fashion.
  2. Reasons to (i) Move for a Continuance, (ii) Obtain an Indictment Before Probable Cause Hearing, or (iii) Consider Dismissal and Recharging
    1. Consideration of the burden it places on vulnerable victims and witnesses, such as rape and child abuse cases.
    2. Witness is not available.
    3. Complex case—many essential witnesses or additional preparation needed.
    4. Parties already have an agreement for a negotiated plea in superior court.
  3. Additional Options to Help Obtain Probable Cause Hearing Waivers
    1. Offer additional discovery opportunities, such as facilitating a follow-up interview with victims or witnesses.
    2. Negotiate a plea offer.
    3. Make a bond reduction offer.

Suggestions for Conducting Probable Cause Hearing

If the probable cause hearing is not waived, it likely will be the first (and in some cases - the only) adversarial hearing that takes place in a felony case. The prosecutor can use this hearing to the state’s advantage for purposes of screening, plea negotiation, discovery, and trial preparation. Below are a few suggested steps to ensure that the state gets the most benefit from any hearing that does take place.

  1. Preparation
    Know the charges and elements, and look for:
    1. Correct crime charged;
    2. Correct victims’ names (check proper business name of commercial establishment, especially in larceny and embezzlement cases);
    3. Elements the state must prove;
    4. Essential (and alternative) witnesses to prove necessary elements.
  2. Planning
    Know the facts of the case, and:
    1. Talk with investigators and review their reports;
    2. Review the scientific evidence. Does the state have any? What is its status (for example, has the lab analysis been completed)? Does the state need to have any additional evidence collected (for example, request a search warrant for sample of defendant’s blood)?;
    3. Talk to and prepare witnesses;
    4. Order follow-up investigations as needed.
  3. Goals
    Learn more about the defendant, and:
    1. Find out about defendant’s reputation and prior criminal record (if the case goes to trial, the prosecutor may need to get certified copies of defendant’s record);
    2. Anticipate defendant’s defense;
    3. Talk to the defendant’s lawyer.
  4. Evaluate
    After the hearing, the prosecutor should make an honest assessment of the strengths and weaknesses of the case that came out at the hearing, and consider what plea alternatives may exist. Remember that G.S. 7A-272 allows a defendant, with the consent of the prosecutor and judge, to plead guilty or no contest in district court to a Class H or I felony.

Approaches to Conducting the Hearing

Each prosecutor and each office will have their own preferences and established practices for conducting probable cause hearings, but in general most hearings fall into one of the three categories described below. Before the hearing begins, the prosecutor should decide which approach makes the most sense for a particular case.

  1. Minimum Evidence Approach
    Subpoena and tender only those witnesses who are absolutely necessary to establish the essential elements and identify the defendant.
    1. Protects victim and witnesses from harassment.
    2. Takes the least amount of time and allows the prosecutor to handle more cases.
    3. Defendant may take the stand and testify about defenses, since he has less opportunity to make his case through cross-examination of multiple witnesses.
  2. Whole Case Approach
    Call all significant witnesses and thoroughly explore any difficult issues in the case.
    1. Weeds out marginal cases.
    2. Encourages pleas by showing defendant all the evidence against him.
    3. Both the state and the defense learn more about issues in the case.
    4. May clear up any public speculation or misinformation about the case.
    5. Enables the prosecutor to evaluate the credibility of witnesses before trial.
    6. Gives investigating officers and witnesses courtroom experience to prepare them for trial.
  3. Discovery approach
    Be sure to request a court reporter at the hearing, or record the hearing and have a transcript prepared.
    1. Subpoena and closely examine any potentially hostile or alibi witnesses.
    2. Use hearing to establish victim’s and witness’s identification of defendant:
      1. Be careful to alert officers to not be suggestive.
      2. Let victim volunteer an identification to the prosecutor or an investigator before testifying.
    3. Look around the courtroom for defendant’s family and friends – consider calling them as witnesses and staking them out on excuse or alibi, so they can be impeached at trial if they change their testimony.
    4. Stake out defendant and defendant’s witnesses on details, so they can also be impeached at trial if they change their testimony.
    5. Crawford protection: if a witness testifies at the probable cause hearing and is subject to cross-examination, the state may be able to use that testimony later at trial if the witness is unavailable. See State v. Ross, 216 N.C. App 337 (2011).

Follow-up After Hearing

  1. Consider plea offer: if an offer was made orally, confirm that offer with a follow-up in writing.
  2. Keep pressure on defendant and defense counsel – set a firm deadline for the defense to accept the plea offer, to avoid wasting time preparing for trial unnecessarily.
  3. Make any necessary corrections to criminal pleading (for example, the arrest warrant) to ensure that the bill of indictment will be drafted correctly.
  4. Keep careful notes for trial.
  5. Continue preparing for trial.
  6. Meet with law enforcement officers involved:
    1. Request any necessary follow-up investigation.
    2. Review problems revealed at the probable cause hearing, and discuss the overall case approach.
    3. Examine physical evidence, complete additional lab analysis, and ensure the witnesses can establish a chain of custody.
Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume I, Chapter 3.