No Probable Cause?

One of the things I do as Defender Educator is design CLEs for public defenders and private assigned counsel. In an effort to plan top-notch programs, I meet from time to time with trainers who do similar work around the country. They are the big dogs (BDs) of indigent defense education. I also like to call in seasoned trial lawyers (STLs) from around North Carolina to talk about what they are observing in court, so I get a sense of what areas of law and practice are ripe for training. A certain conversation recurs at these BD/STL meetings. It pertains to probable cause hearings and goes like this:


Alyson: Do we need to offer training on any other topic we’re not currently addressing?

BDs: You’re not doing anything on preliminary hearings.

STLs: That’s because they’re not happening. We’re not getting probable cause hearings in most districts of North Carolina.

BDs: (Incredulous) Don’t your statutes provide for them?

STLs: Well, yes.

BDs: What’s wrong with you? Why aren’t you demanding what your client is entitled to by law?

STLs: There are some practical reasons. In some places prosecutors will give you a bond reduction if you waive PC. Also the sooner you get the case in Superior Court the sooner you get open file discovery. Mostly though, it’s the culture—it’s just not done in my district.

BDs: What a crazy state. Great barbecue and basketball though.


Our statutes clearly contemplate that probable cause hearings will take place in the preliminary stages of a criminal prosecution in North Carolina. Article 30 of the Criminal Procedure Act is dedicated to the probable cause hearing and sets out the procedure for holding one. According to the Official Commentary, “the purpose is to screen the case to make sure it warrants being bound over to superior court[.]” Article 29 (First Appearance Before District Court Judge) establishes the defendant’s right to a probable cause hearing in all cases within the original jurisdiction of the superior court. Under G.S. 15A-601(a), a defendant who has been charged with a crime in the original jurisdiction of the superior court must be brought before a district court judge for a first appearance. At the first appearance, the judge “must schedule a probable-cause hearing unless the defendant waives in writing his right to such a hearing.” G.S. 15A-606(a). Reinforcing the importance of the right, the statute includes a safeguard to protect against early, uncounseled waivers of probable cause hearings. “A defendant represented by counsel, or who desires to be represented by counsel, may not before the date of the scheduled hearing waive his right to a probable-cause hearing without the written consent of the defendant and his counsel.” Id.

Yet, contacts around the State report that probable cause hearings have in large part fallen by the wayside. The reasons are not hard to guess. At the heart of it, dockets are heavy and resources are tight. Some prosecutors may prefer not to “show their hand” or to provide the defendant an opportunity to develop impeachment evidence for use at trial. Some defense lawyers may choose to waive PC in order to get the matter into a court of record where open file discovery applies. Other defense lawyers probably feel that while the hearing would be a valuable screening and discovery tool for their client, they have little leverage to obtain one in light of the prevailing culture in their district. Some district court judges may have developed a mindset that “we don’t hold those here.” In any event, if the defendant refuses to waive, prosecutors can voluntarily dismiss the case, causing the defendant to be re-arrested upon indictment. See State v. Lester, 294 N.C. 220 (1978) (probable cause hearing not necessary following indictment). The defendant would then have to post another bond—sometimes a higher one than they posted when the matter was in district court. In some parts of the state, court actors have adopted a passive approach of continuing the matter along in district court for months, until the State is prepared to indict.

[I would be remiss as Defender Educator if I did not point out that there are a few remedies the defendant may seek if a probable cause hearing is not held within statutory time limits or the State seeks an indictment before a probable cause hearing takes place. Click here and go to Section 3.2 of the NC Defender Manual to learn more.]

Does the practice of not having pc hearings negate an important process the legislature set in place for people accused of crimes in North Carolina? Is proceeding directly to the grand jury an acceptable substitute as a screening device? According to the Official Commentary on G.S. 15A-611, at one stage, a legislative committee included a restriction on the power of the prosecution to bypass the probable cause hearing and proceed to the grand jury, but the restriction was subsequently deleted and never made it into black letter law. Cases interpreting G.S. 15A-606(a), such as Lester, have held that defendants do not have a right to a probable cause hearing as a matter of course; prosecutors may exercise their discretion to initiate criminal proceedings by indictment. Yet, our statutory scheme requires that a probable cause hearing be held within 5 to 15 days of initial appearance, which is earlier than the State is generally prepared to seek an indictment. G.S. 15A-606(d). Also, G.S. 15A-606(f) states that a probable cause hearing should only be continued upon a showing of good cause, or upon a showing of extraordinary cause in the event that the moving party failed to give 48 hours notice. Thus, it seems that the legislature contemplated that probable cause hearings would take place at an early stage of criminal proceedings, but left room for the State to seek an earlier indictment in the rare case that it was prepared to do so. This interpretation is at odds with current practices of continuing the case repeatedly in district court or taking a voluntary dismissal until the matter can be submitted to the grand jury in lieu of holding the probable cause hearing.

The way outsiders like the BDs see it, court actors in North Carolina—judges, defense lawyers, and prosecutors alike—have collectively lost sight of the importance of probable cause hearings and the statutory mandate that they be held soon after arrest. How do you see it? Is there cause for concern?