Written by attorney Steven J. Topazio

What is a Probable Cause Hearing?

When an individual is arrested and charged with a felony offense that doesn’t fall within the final jurisdiction of the District Court, the case has to be transferred to the Superior court. The case gets to the Superior Court by way of a probable cause hearing conducted in the District Court. At a probable cause hearing, the District Court must review the evidence to determine whether the case should be bound over (that is, transferred) to Superior Court, and witnesses are subject to cross examination. If the District Court finds no probable cause it will dismiss the case. For defense counsel, a probable cause hearing provides the opportunity to examine commonwealth witnesses; for discovery; and the development of impeachment evidence for use at trial. Because of this valuable discovery opportunity for the defendant, most district attorneys choose not to hold probable cause hearings, choosing rather to bypass the probable cause stage and seek a direct grand jury indictment instead.

At the probable cause hearing the judge determines whether sufficient evidence exists to send the case to the Superior Court for trial. The judge reviews 1) whether there is probable cause to believe a crime was committed and 2) whether there is probable cause to believe the person in front of the court is the one who committed the crime. Rarely does a judge overturn the prosecution and dismiss the case. In fact, the prosecution or judge can add additional charges to the case at this hearing. The length of a probable cause hearing varies by state. It may last three hours. It may last three questions.

Eight things to expect at the probable cause hearing:

  1. Probable cause hearings are shorter than trials.
  2. The probable cause hearing is not a finding of fact.
  3. The goal of a probable cause hearing is to screen the prosecution's case.
  4. The prosecution is only required to show "probable cause" at this hearing.
  5. The probable cause hearing will be conducted in front of a judge. No jury will be present.
  6. Although the defendant may be held to answer for trial, that does not mean the defendant is guilty.
  7. Neither the prosecution or defense will present their whole cases; they want to save their case strategies for the trial.
  8. Cross examination of police officers or witnesses may occur.

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