Probable cause (PC) hearings play a unique role in delinquency cases. They are required only in the subset of cases that are potentially eligible for transfer to superior court, and their timing and impact depend on the offenses that are charged and the age the juvenile was at the time of the alleged offense. This post walks through the basics of PC hearings in delinquency cases.
Cases Requiring a PC Hearing
The Juvenile Code requires a PC hearing in most delinquency cases in which the juvenile is alleged to have committed a felony offense when they were age 13 or older. G.S. 7B-2202(a). There is no PC hearing requirement in cases in which the juvenile was aged 12 or younger at the time of any alleged offense. There is also no PC hearing requirement in cases in which only misdemeanor offenses are alleged.
The subset of delinquency cases in which a PC hearing is generally required is aligned with the subset of cases in which transfer to superior court is possible. Any case that begins as a delinquency matter and in which a felony offense is alleged to have been committed at age 13 or older is potentially eligible for transfer to superior court for trial as an adult. G.S. 7B-2200, -2200.5. It is possible for delinquency cases to allege felony offenses committed as young as age 8 through age 12. These cases are never eligible for transfer. The Juvenile Code does not require a PC hearing in these cases. However, a standard of proof beyond a reasonable doubt, which is a more significant burden than probable cause, is required to adjudicate a juvenile delinquent regardless of the nature of the allegations. G.S. 7B-2409.
Exceptions to PC Hearing Requirement
There are two kinds of cases that include felony allegations alleged to have been committed at age 13 or older that do not necessarily require a PC hearing.
1. Cases Subject to Mandatory Transfer
Some cases that are eligible for transfer to superior court must be transferred (mandatory transfer cases, G.S. 7B-2200(b), -2200.5(a)) and another set of cases can be transferred if transfer is requested and the court decides to order transfer based on evidence presented at a transfer hearing (discretionary transfer, G.S. 7B-2200(a), -2200.5(b), -2203). Mandatory transfer cases include cases in which a Class A felony is alleged to have been committed at age 13, 14, or 15 and cases in which a Class F or G felony is alleged to have been committed at age 16 or 17. G.S. 7B-2200(b), -2200.5(a). While both mandatory and discretionary transfer cases would be subject to the general requirement for a PC hearing based on the presence of felony allegations alleged to have been committed at age 13 or older, mandatory transfer cases are sometimes exempted from the PC hearing requirement. Whether a PC hearing is required in these cases depends on which mechanism (indictment or PC finding) the prosecutor chooses to use trigger the mandatory transfer, as explained in more detail below.
2. Cases Removed from Superior Court to Juvenile Court
The second category of cases that are excluded from the usual requirement for a PC hearing are cases that begin under the jurisdiction of the criminal court (because they include an allegation of a Class A – E felony committed at age 16 or 17, G.S. 7B-1501(7)b.2.) and are subsequently removed to juvenile court. Removal is ordered by the superior court after an indictment has been returned or a criminal information has been issued, and the prosecutor and defense attorney file a joint motion for removal. G.S. 15A-960. These cases then become delinquency cases and are resolved through the juvenile adjudication process. A PC hearing is not required following their removal to juvenile jurisdiction. G.S. 7B-2202(a).
Failure to Conduct PC Hearing
The Court of Appeals of North Carolina considered the impact of the failure to conduct a required PC hearing in In re Bass, 77 N.C.App. 110 (1985). The court held that the trial court’s failure to conduct the required PC hearing was error. However, the court found that the error did not result in prejudice to the juvenile, stating
We admonish the trial courts that juveniles should be afforded the protection of each of the procedural safeguards provided by the North Carolina Juvenile Code. However, the burden is upon respondent to show a reasonable possibility that a different result would have been reached at his adjudicatory hearing had he been afforded a probable cause hearing. Id at 115.
This requirement to show prejudice is similar to the prejudice requirement necessary to obtain relief based on the failure to hold a probable cause hearing in criminal cases. See State v. Wiggins, 334 N.C. 18 (1993). You can find more information about that and other aspects of probable cause hearings in criminal cases in my colleague Phil Dixon’s recently published chapter on Probable Cause Hearings in the Juvenile Defender Manual.
Timing of PC Hearing
There are two timelines that govern when required PC hearings must be conducted. For most cases, the hearing must be conducted within 15 days of the date of the juvenile’s first appearance. G.S. 7B-2202(a). The PC hearing can be continued for good cause. Id.
The PC hearing timeline is different in mandatory transfer cases. A PC hearing must be conducted within 90 days of the juvenile’s first appearance in these matters. G.S. 7B-2202(b1). Here again, the PC hearing can be continued for good cause.
Indictment in Place of PC Hearing in Mandatory Transfer Cases
Historically, the finding of PC in a mandatory transfer case was the one mechanism that triggered the transfer requirement. Amendments to the Juvenile Code enacting “Raise the Age” in 2019 included the option of triggering mandatory transfer either through a finding of PC or the return of a true bill of indictment. S.L. 2017-57, § 16D.4.(e). The Juvenile Code now directs that cases alleging a Class A felony committed at age 13, 14, or 15 must be transferred to superior court following either a finding of PC or on notice of the return of a true bill of indictment. G.S. 7B-2200(b). The longer 90-day timeline for a PC hearing provides time to seek an indictment. If an indictment is returned before the PC hearing is required, the matter must be transferred to superior court for trial as an adult and no PC hearing is held in juvenile court. If an indictment is not returned within the 90-day timeframe, the juvenile is entitled to a PC hearing.
This same structure applies to the other category of mandatory transfer cases – cases that allege a Class F or G felony at age 16 or 17. G.S. 7B-2200.5(a). However, the prosecutor can choose not to pursue transfer in these cases. G.S. 7B-2200.5(a1). If the prosecutor declines to transfer the case, a PC hearing must still be conducted within 90 days of the juvenile’s first appearance. The statute expressly provides that a finding of PC under these circumstances does not trigger transfer and the case moves to the adjudication phase of a delinquency case. Id. The prosecutor may change their position and choose to transfer the case any time between the finding of PC and adjudication. Id.
PC Hearing Requirements
The State has the burden of proof at the PC hearing to show that there is probable cause to believe that the alleged offense occurred and that the juvenile committed the offense. G.S. 7B-2202(c). This showing may be made through 1) nonhearsay evidence, 2) evidence that satisfies an exception to the hearsay rule, 3) a report or copy of a report made by a physicist, chemist, firearms identification expert, fingerprint technician, or an expert or technician in some other scientific, professional, or medical field, concerning the results of an examination, comparison, or test performed in connection with the case in issue, when stated in a report by that person, or 4) if there is no serious contest, reliable hearsay to prove value, ownership of property, possession of property in a person other than the juvenile, lack of consent of the owner, possessor, or custodian of property to the breaking or entering of premises, chain of custody, and authenticity of signatures. G.S. 7B-2202(c).
The juvenile may testify, call, and examine witnesses, and present evidence. G.S. 7B-2202(b)(3). Witnesses must testify under oath or affirmation and be subject to cross-examination. G.S. 7B-2202(b)(4).
The juvenile is allowed to waive the right to the PC hearing through their attorney. G.S. 7B-2202(d). The waiver must be in writing and must include a stipulation to the finding of PC. Id. The attorney for the juvenile cannot waive the right to a PC hearing without also stipulating to the finding of PC. The AOC-J-343, Juvenile Order – Probable Cause Hearing, includes a waiver of hearing and stipulation to probable cause that the juvenile’s attorney can sign. If the attorney for the juvenile waives the hearing and stipulates to the finding of PC, the court must also check the finding on the form that reflects the substance of that stipulation. All cases that require a PC hearing should have a completed AOC-J-343 before moving to transfer, adjudication, or dismissal, as applicable.
Impact of PC Hearing Outcome
There are several potential outcomes of a PC hearing, including
- finding PC for the alleged felony offense(s),
- finding PC for only lesser included felony offense(s),
- finding PC for only lesser included misdemeanor offenses(s), or
- finding no PC for any alleged offense or any lesser included offense.
If the court finds PC for the originally charged felony offense(s), the pathway for the case depends on whether that felony is subject to mandatory or discretionary transfer. If the felony offense is subject to mandatory transfer, the court must order transfer of the matter to superior court for trial as an adult. G.S. 7B-2200(b), -2200.5(a)(2). If the felony is subject to discretionary transfer, the case proceeds to a transfer hearing if the prosecutor, the juvenile’s attorney, or the court makes a motion for transfer. G.S. 7B-2200(a), -2200.5(b), -2203. If there is no motion for transfer, the case remains under juvenile jurisdiction and proceeds to adjudication.
If the court finds PC for only a lesser included felony, the nature of that lesser included offense must be determined. As described above, a finding of PC for any mandatory transfer offense triggers transfer, and a finding of PC for any discretionary transfer offense will trigger a transfer hearing if there is a motion for transfer.
If the court finds PC for only a lesser included misdemeanor offense, the case remains under juvenile jurisdiction and proceeds to adjudication. G.S. 7B-2202(f)(2). The adjudicatory hearing must be separate from the PC hearing. Id.
If PC is not found for any felony or misdemeanor offense, the case must be dismissed. G.S. 7B-2202(f)(1).
As always, you can reach me at greene@sog.unc.edu if you have questions or comments about this post.
