what does a defense lawyer need to do in a probable cause hearing?

The prosecution is required to prove that it's more likely than not that a crime was committed and that the defendant committed that crime. The probable cause hearing provides the first opportunity for the defense attorney to challenge the evidence and the charges, and, if successful, the charges can be dismissed.

Full Answer

Do I need a lawyer for a probable cause hearing?

If you have any issues or questions regarding a probable cause hearing, it’s to your benefit to enlist the services of a criminal attorney in your area. Your attorney will be able to represent you during the hearing and can assist with rules of evidence, which are different than the rules during trial.

Can a defendant waive a probable cause hearing?

Defendants can also waive a probable cause hearing, that is, indicate to the prosecution that they do not want the hearing to take place. Those charged with misdemeanors do not have the same right to a probable cause hearing.

What evidence is used in a probable cause hearing?

Probable cause may be established during the hearing through many different forms of evidence. These can include physical evidence, forensic evidence, or testimonial evidence. In a probable cause hearing, the normal evidentiary rules often don’t apply, since trial has not formally begun yet.

Can a defendant sue for unreasonable probable cause hearing delays?

( Jenkins v. Chief Justice of Dist. Court Dep't, 416 Mass. 221 (1993).) Ultimately, unreasonable probable-cause-hearing delays can be difficult to remedy. A defendant must typically prove some kind of harm from the delay—for instance, a confession to a crime after the point at which the probable cause determination was supposed to have occurred.

When the grand jury finds that probable cause exists the defendant is what?

7. Indictment Returned -- If the grand jury decides the evidence presented establishes probable cause, it issues an Indictment against the accused. At least 16 of the 23 members of the grand jury must be present to conduct business, and at least 12 jurors must vote to indict. The Indictment is called a True Bill.

What is the purpose of the defense in a court proceeding?

After the Government rests, the defense has the opportunity to present witnesses and evidence to the jury. The defense also has the option of not having the defendant testify. There is no burden upon the defendant to prove that they are innocent.

Is the purpose of a preliminary hearing to determine the guilt of a defendant?

The purpose of the preliminary hearing is to determine if there is enough evidence to justify holding the defendant to answer for the alleged charge(s), which includes any misdemeanors that are charged along with the felonies. It's our job to try to convince the judge that there is not.

What is a probable cause hearing in Texas?

"Probable cause hearing" may refer to a preliminary hearing that happens well after the filing of charges, at which the court hears testimony in order to determine whether it's more likely than not that the defendant committed the alleged crimes. If the court finds "probable cause," then the case may proceed to trial.

How do you prepare for a defense in court?

How to write a defence?Defendant should reply on each allegation in particulars of claim. ... As well as a particulars of claim, defence must contain statement of truth.It is up to claimant to prove his position, that's why defendant may ask to provide solid proof for each allegations it wasn't stated in claim.More items...

What must the evidence provide to convict a person of a crime?

Evidence must also be sufficiently reliable to be admitted at trial. Evidence from expert witnesses, which might be used to establish the validity of or to challenge drug test results, ballistics, or computer forensics, to name but a few, must meet standards defined by the U.S. Supreme Court in Daubert v.

Can you go to jail at a preliminary hearing?

It is very unlikely that you would go to jail at the preliminary hearing. The court's job is not to find the defendant guilty or not guilty. Instead, the judge's role is to determine whether there is enough evidence for the charges to proceed to the Court of Common Pleas for trial.

Is defendant allowed to see evidence?

Accused persons are entitled to hear all of the evidence, and you will not have to leave the courtroom when other witnesses testify even if you intend to be a witness yourself. However, you must not tell any witnesses what evidence was given in the courtroom or the questions that were asked.

What is the process of determining whether the defendant is guilty or not guilty?

Jury Deliberations & Announcement of the Verdict After being charged, the jury deliberates, the process of deciding whether a defendant is guilty or not guilty. During this process, no one associated with the trial can contact the jury without the judge and lawyers.

Who decides whether probable cause exists in a case quizlet?

An initial hearing in which a magistrate decides if there is probable cause to believe that the defendant committed the crime with which he or she is charged.

What kind of trial has only a judge to determine innocence or guilt and sentencing?

bench trialA bench trial is tried to a judge only—there's no jury.

How long can you be held in jail before seeing a judge in Texas?

Generally, you'll be booked in at the local county jail and within 24-48 hours appear before a judge. That judge will formally notify you of the charges against you, set a bond for you, and give you a date for your first court appearance.

How does a probable cause hearing work?

The prosecutor begins a probable cause hearing by producing evidence to prove a prima facie case, which means that the evidence is accepted as fact until proven otherwise. In some states, the law allows the prosecution to rely on hearsay testimony and other testimony that would otherwise be inadmissible at trial. Depending on the nature of the crime and the facts of the case, this process might involve calling witnesses. Typically, the arresting police officer is called to testify about everything he knows about the case.

What is the purpose of a criminal hearing?

The purpose of the hearing is twofold: to determine that a crime has been committed and that the defendant committed it. The hearing is relatively short, but it's an important step in the process.

What happens if a judge finds that the prosecution does not have enough evidence to prove a prima facie case

If the judge finds that the prosecution does not have enough evidence to prove a prima facie case – in other words, he does not find probable cause – the court will dismiss the case. The case might also be dismissed if witnesses fail to appear to testify.

Why should charges be dismissed?

The defense might argue that the charges should be dismissed or downgraded on the basis that the evidence is weak or circumstantial, or that the defendant has been overcharged. The defense attorney and the prosecutor can address the judge to argue their positions after the court has heard all relevant testimony.

What is the process of calling witnesses?

Depending on the nature of the crime and the facts of the case, this process might involve calling witnesses. Typically, the arresting police officer is called to testify about everything he knows about the case. The defense attorney can then challenge the evidence and cross-examine any witnesses.

Can a defendant waive probable cause?

A defendant has the right to waive the probable cause hearing. This sometimes happens in return for the prosecutor reducing the charges against him. This isn't the same as agreeing to the charges or pleading guilty, and the waiver can't be used against the defendant at trial.

Is a probable cause hearing open to the public?

The judge, the defendant's attorney, the prosecutor and any subpoenaed victim and witnesses are present, and the hearing is open to the public.

What is probable cause in police?

Probable cause is a legal standard of evidence that police officers must have in order to arrest someone or obtain a warrant. If the police do not follow the probable cause requirement, you may be able to have evidence against you excluded from a court proceeding.

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What is probable cause hearing?

But "probable cause hearing" typically refers to a quicker proceeding involving a determination that there was a valid basis for arrest—that determination allows the authorities to continue to confi ne a defendant who hasn't bailed out of jail or been released on "OR.". This kind of probable cause hearing frequently occurs in conjunction ...

Which amendment requires that arrests be supported by probable cause?

The Fourth Amendment requires courts to confirm that an arrest is supported by probable cause either before or shortly after officers take a suspect into custody. A judge or magistrate's signing an arrest warrant serves this purpose, but most arrests don't involve warrants.

What happens if probable cause is not found?

If a probable cause determination doesn't occur within the prescribed timeframe, the authorities generally have to release a jailed suspect. But courts will often sanction a delay when law enforcement can prove an extraordinary cause for it. ( Jenkins v. Chief Justice of Dist. Court Dep't, 416 Mass. 221 (1993).)

How long does probable cause take to be determined?

As a general rule, a probable cause determination within 48 hours of arrest satisfies the Fourth Amendment. ( County of Riverside v. McLaughlin, 500 U.S. 44 (1991).) Some states shorten the window, requiring a probable cause hearing within 24 hours of arrest. But if authorities delay a probable cause determination—even one that's held within the requisite period—for an improper purpose, then a Fourth Amendment violation may result. For example, delay is unlawful if it's for the purpose of gathering evidence to justify the arrest.

Can a defendant prove unreasonable probable cause hearing delay?

Ultimately, unreasonable probable-cause-hearing delays can be difficult to remedy. A defendant must typically prove some kind of harm from the delay—for instance, a confession to a crime after the point at which the probable cause determination was supposed to have occurred.

What is probable cause hearing?

Generally, a probable cause hearing happens together with the defendant’s first court appearance after their arrest. The judge will determine whether probable cause supported the arrest.

What is the objective of probable cause?

Objective. Probable cause requires objective facts, not subjective beliefs. A police officer must have more than a subjective hunch to make an arrest or get an arrest warrant. They need to have objective evidence that indicates the suspect’s responsibility for the crime. Even if a police officer believes that they have probable cause, ...

What happens if a warrant is issued before arrest?

If the police get a warrant before making an arrest, the warrant will satisfy the Fourth Amendment requirement of probable cause. However, since officers generally do not get a warrant before making an arrest, a judge often will need to determine whether probable cause exists soon ...

Can a judge agree with probable cause?

Even if a police officer believes that they have probable cause, a judge may not necessarily agree. They will review the information in the affidavit for the warrant and make a final decision. You should be aware that being guilty of a crime and having probable cause for an arrest are two different things. Probable cause may exist even ...

Is probable cause a percentage?

No percentage has been assigned to probable cause. Some judges seem to believe that the standard is less demanding than the preponderance of the evidence standard used in civil cases. Since that standard involves a greater than 50 percent probability, probable cause may not be what most people would consider “probable.”.

Can a constitutional violation occur if the hearing is delayed?

Even if the hearing occurs within the required period, a constitutional violation still may arise if law enforcement delayed the hearing for improper reasons, such as looking for evidence to support probable cause.

Do police have probable cause?

To make a valid arrest or get an arrest warrant from a judge, the police must have probable cause. This is a different standard from the reasonable suspicion standard required to make an initial stop. Determining how much evidence is necessary to justify a finding of probable cause depends on the specific facts of the situation.

What is probable cause?

"Probable cause" generally refers to the requirement in criminal law that police have adequate reason to arrest someone, conduct a search, or seize property relating to an alleged crime. This requirement comes from the Fourth Amendment of the U.S. Constitution, which states that:

What is the legal cause to arrest, search, or seize property?

Legal cause to arrest, search, or seize property exists when facts and circumstances known to the police officer would lead a reasonable person to believe: that property to be seized is contraband, stolen, or constitutes evidence of a crime.

What is probable cause to seize property?

Probable cause to seize property exists when facts and circumstances known to the officer would lead a reasonable person to believe that the item is contraband, is stolen, or constitutes evidence of a crime. When a search warrant is in play, police generally must search only for the items described in the warrant.

How to obtain a warrant?

Typically, to obtain a warrant, an officer will sign an affidavit stating the facts as to why there is an adequate reason to arrest someone, conduct a search or seize property. Judges issue warrants if they agree, based on " totality of the circumstances " that adequate cause exists. There are many instances where warrants are not required ...

What is the exclusionary rule in criminal cases?

Should evidence prove to have resulted from an illegal search, it becomes subject to the "exclusionary rule" and cannot be used against the defendant in court. After hearing arguments from the prosecuting and defense attorneys, the judge decides whether evidence should be excluded.

Do police have probable cause?

In situations where police are allowed to effect an arrest, search or seizure without a warrant, they also must have probable cause and it's required for prosecutors to charge a defendant with a crime as well.

Do police need a warrant to search for contraband?

in emergency situations which threaten public safety or the loss of evidence. Police also do not need a warrant to search or seize contraband "in plain site" when the officer has a right to be present.

What is the purpose of probable cause hearing?

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.

What action does the judge take at the conclusion of a 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.

Why is probable cause waived?

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.

How long does a waiver of probable cause take?

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).

How long does a probable cause hearing last?

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).

What is the case of State v. Cradle?

State v. Cradle, 281 N.C. 198 (1972). 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.

Is there a constitutional right to 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).#N#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).

What does the court consider when determining probable cause?

Courts consider the "totality of the circumstances" (all of the facts and information) before deciding whether there is probable cause for a particular arrest, search, or prosecution. Judicial reviews of probable cause determinations are rooted in common sense, not legal technicalities.

What does probable cause mean in court?

Instead, courts have interpreted probable cause to mean that the police or judge must have an objective (reasonable) belief that the person to be arrested and charged has committed a crime; or that the place to be searched contains evidence of a crime.

What is warrant in police?

Warrants are written court orders that authorize police to make arrests or to search for particular objects or materials at a specified location and time. To get a warrant, officers must convince a judge that probable cause (a reasonable suspicion based on facts) exists for the arrest or search.

What is a bench warrant?

Judges can issue another type of warrant, called a "bench warrant," when defendants fail to appear for their court hearings. Bench warrants authorize the police to arrest the absent defendant. Sometimes the police go looking for the defendant, but most often, the warrant sits in the system.

What amendment says that police need probable cause?

master:2021-07-14_10-45-33. The Fourth Amendment to the United States Constitution says that the police need "probable cause" to make arrests, conduct searches, and obtain warrants. Before proceeding to trial, prosecutors must prove to a judge that there is probable cause to even charge defendants with crimes.

How can a lawyer help you?

A lawyer can help you challenge unlawful arrests and searches by filing a motion to suppress (exclude) evidence. A lawyer can also make a motion to set aside (dismiss) an information or indictment if the lawyer thinks a judge might find that there is not enough evidence (less than probable cause) to support the charges.

What to do if you think you might be the target of an arrest or search warrant?

If you think you might be the target of an arrest or search warrant, or if you have been charged with a crime, talk to an experienced criminal defense lawyer as soon as possible. An experienced lawyer can help you understand the law and how it applies to your case.