No Probable Cause?

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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:

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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.

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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?

21 comments on “No Probable Cause?

  1. It is a bad practice not to follow the law as written. If PC hearings are useless, we should eliminate them or change the law to require that they are held only if a defendant requests them. They are often the first opportunity to obtain a bond hearing.
    I generally waive the hearing in writing to speed up the process of getting discovery. However in the past district judges here (Forsyth) have continued the case back to PC court even when I have waived PC rather than bind it over to Superior Court as the statute seems to require.
    I suspect that this is a kind of sleight of hand to keep cases from “pending” for a long time in Superior Court. Our local criminal case management plan sets goals to resolve cases from the time of indictment. If the case is technically pending in District Court until the grand jury indicts and the DA’s office keeps it bottled up there for 6-8 months, it makes the DA look more efficient because the case did not sit on the Superior Court docket for as long. I have had clients wait 9 months to a year without being indicted. This system allows District Court to function as a kind of waiting room where the waiting time is not monitored. However, this is just a theory. I’d be interested to know if anyone else thinks this makes sense.

  2. In 1989 or 1990, when I was a law clerk, the atty I worked for took me to court so I could see him demand a P/C hearing. He stood and read from the statute making a P/C hearing mandatory. When he finsined the Distrcit Court judge, now a Superior Court judge, said, “Sir, you have a lovely speaking voice.” Then the judge turned to the DA and said, “call your next case.”

  3. I agree with the BDs. Training is needed concerning PC hearings. We as a defense bar allow too much pushing from the bench and the DAs to simply waive or sit-on the hearing, waiting for an indictment.

    It is so bad in some counties (Rutherford) that if your client demands a PC hearing then the DA promises an habitual indictment (assuming the client qualifies). Furthermore, the DAs hold true to their word. I have three habituals pending now, simply b/c the client requested a PC hearing.

    The hearings are helpful to defense attorneys. However, if you win at that stage (RARE) and the case isn’t bound over, then nothing prevents (to my reading) the DA from seeking an indictment anyway.

    And waiving it up doesn’t help!!!! The case still sits for months until the indictment comes down. And by the way, “it really isn’t in superior court yet, so you have no right to discovery,” says the sassy DA.

    I say we all wake up tomorrow morning and each and every one of us demands PC hearings across the State. The instant inhale from every ADA in the state would be a precious sound.

  4. In response to BkPlem, note that the defendant may (and should!) request voluntary discovery from the State within 10 working days after the probable cause hearing or the waiver of the hearing. G.S. 15A-902(d). Then, if the defendant doesn’t get the discovery within 7 days of making the request, the defendant may file a motion with the judge seeking discovery. G.S. 15A-902(a). Some defense lawyers file a “Request and Alternative Motion for Discovery” within 10 days of the PC hearing or waiver to cover their bases. Good luck.

  5. Thanks Alyson.

  6. Ultimately, the case still gets screened by a Grand Jury in order to get to Superior Court. Having a PC hearing does not affect this requirement. If the legislature is going to change the law and require more PC hearings, then it should remove the Grand Jury requirement for all cases where the District Court has found probable cause. Other states do this, why can’t North Carolina.

    Basically, the way I see it is that the defendant should pick one: either get a PC hearing, or get a Grand Jury indictment. Don’t waste court time and resources with both.

  7. While I am still thinking of this, Ms. Grine points out two uses for Probable Cause Hearings:

    1. Discovery, (I am extrapolating the discovery use from her comment about prosecutors not, “tipping their hands,” and from my past experience in a state where preliminary hearings were the norm.)

    2. Developing impeachment evidence.

    Probable Cause hearings are meant solely for determining whether there is enough evidence to bound the case over to Superior Court. In my experience in another jurisdiction, it becomes much more than that. It turns into a fishing expedition by the defense to nitpick over details in order to, as Ms. Grine puts it, “develop impeachment evidence.”

    The defense bar can claim all day long that they are simply using all of the tools at their disposal to zealously represent their clients. But the misuse of Probable Cause hearings in the way that Ms. Grine and other members of the defense bar say it should be used is wrong. It is not what the hearing was intended for, and will turn a simple straightforward hearing into an hour long deposition, where the witness will be grilled about nitpicked details of an investigation that may still be ongoing, only to be subsequently castigated at trial when the case leads in a different direction. And all of this while North Carolina has the most generous criminal discovery law in the country.

    And now with attorneys like BkPlem above talking about leading defense attorneys across the state to seek PC hearing just to stick it to the prosecution, it is no wonder that DAs across the board have to use all of the tools at their disposal just to make sure that justice is done in a case. And I find it entertaining that s/he bemoans the prosecutor who offers to not seek a Habitual Felon indictment in exchange for waiving a PC hearing, yet then two paragraphs later talks about deliberately gumming up the court system with PC hearings that may not be beneficial to his client simply to hear, “the instant inhale of every ADA in the state.”

    Given all of that, it is no wonder that Prosecutors, who already have to deal with the umpteen-million procedural safeguards that the defendant enjoys in a criminal case, will use all of the tools at their disposal to see that justice is truly done. It still baffles me to this day that the defense has so many things in its favor, and yet they still manage to find something to complain about.

  8. This discussion is taking exciting turns. I will grab an excerpt from the NC Defender Manual Vol. 1, Ch. 3 that speaks to a concern raised by Prosecutor about the proper use of the hearing. Let’s see if it sparks any more thoughts. Good luck out there.

    Some cases have held that discovery is a legitimate purpose of a probable cause hearing. See Coleman v. Alabama, 399 U.S. 1, 9 (1970) (recognizing constitutional right to counsel at probable cause hearing because counsel can use hearing to obtain discovery and develop impeachment evidence); Vance v. North Carolina, 432 F.2d 984, 988–89 (4th Cir. 1970) (to same effect). Other cases state that the purpose of a probable cause hearing is to screen the case, not to provide discovery. Those cases still acknowledge, however, that the hearing “may afford the opportunity for a defendant to discover the strengths and weaknesses of the State’s case.” State v. Hudson, 295 N.C. 427, 430 (1978). Thus, questions that provide the defendant with discovery should be permissible as long as they also bear on the determination of probable cause.

  9. I again go back to the stated purpose for any preliminary hearing / probable cause hearing: to determine whether the case should be bound over to Superior Court. While having any pretrial hearing where a witnesses gives sworn testimony will always provide incidental discovery, it is still not the purpose of the hearing.

    If you really want to get down to it, one could make the argument that the defendant ought not be allowed to examine any witnesses at a probable cause hearing. Think about it, the law allows the Grand Jury to make a determination about whether probable cause exists to charge a defendant. The Grand Jury does so without any participation by the defendant whatsoever. If the stated purpose of a probable cause hearing in District Court is the same thing as a Grand Jury, then why is it that the defendant is allowed to ask any questions at all? Why is the defendant allowed to participate in the first place?

    I have my own ideas as to why the probable cause hearing exists, but I digress…

  10. The prosecutor tips his hand when he talks above about “fishing expedition” and “nitpicking”. Prosecutors want to talk all day about how they serve justice etc. etc., but of course, what they seek to do is put people in jail, whether or not they could prove the case absent the considerable procedural and substantive resources at their disposal. For instance, they control the calendar, they run the courtrooms, they get to set which judges hear which cases, they get to limit the ways the defendant can appear on simple bond hearings, they get to dismiss district court cases at the probable cause hearing and get an indictment with a new bond, they run the grand jury. Plus, they have whole teams of investigators and police officers and the whole state’s investigatory apparatus.

    Then they want to blame the defense bar for using some of the few tools for “abuse.” It’d be laughable, if it wasn’t so sad.

    • Let me take the chance to tell everyone else reading these comments about the, “considerable procedural and substantive resources,” at the defendant’s disposal:

      The defendant gets to know everything there is to know about my case prior to trial. He gets to know who my witnesses are, where they live, what they will testify to, and what things they will show to the jury. I even have to go out and look for evidence that helps the defendant’s case, regardless of whether that evidence exists. What do I get in return from the defendant? Nothing. (The few random things the defense gives me in the middle of trial hardly constitutes “reciprocal” discovery. And there is no judge in this state who would actually prevent a defendant from presenting a case because of discovery violations…)

      The defendant only needs one person out of twelve to hold out in order to walk free. I have to convince twelve strangers to unanimously agree beyond a reasonable doubt. Try getting twelve people to agree on what to eat for lunch, let alone deciding guilt or innocence.

      Those twelve strangers are told that a jury trial is, “a search for the truth,” despite the fact that the court goes out of its way to deliberately keep large amounts of the truth from them.

      I have to make sure that I do the best job I can each and every time I try a case, because I don’t get a “do-over” for being a crappy lawyer. If the defense attorney does a bad job representing his client at trial, I may wind up having to try the case all over again from scratch through no fault of my own.

      The defendant gets countless chances to re-litigate his case and undo the jury’s verdict after conviction. So far we have direct appeal, MAR, Habeas Corpus (to an entirely separate court system), and now the “Innocence Inquiry Commission.” All he needs is one of them to work for him to either get a new trial, or get a free walk altogether. What do I get to do with newly found evidence of a defendant’s guilt after a not guilty verdict? Nothing…

      As far as the other things that you mentioned, try spreading all of that out across the more than 300 pending cases that I am directly responsible for, and you will quickly find that it is spread very thin. Combine that with my low pay, long hours, and a shrinking state budget that would rather spend millions building a bridge in New Bern than supply us with enough paper for our copier, and you will have a much better idea of exactly how this system works.

      That is the real system I work in. A system that I choose to work in, despite the uphill battle I face every single day. What keeps me going is the simple fact that my ethical obligation is to find the truth, no matter what that truth is. Your ethical obligation is to do whatever it takes to set a guilty man free. I know I can sleep well at night, can you?

      • You are both committing the fallacy, inherent in the entire adversarial system, of assuming that your perspective on an issue like this is valid 100% of the time.
        Prosecutor, you for example, as indicated by your last assertion, are assuming that someone who is trying to get PC hearings, etc. is attempting to “do whatever it takes to set a guilty man free”. With all due respect, if you are worth the suit you wear, then you know full well that many innocent people are held without sufficient probable cause, which is what renders this issue so important… at least to me.
        I was arrested last year for something that was NOT an illegal substance (not even by a stretch), because the police officer involved insisted that he thought it LOOKED like an illegal substance. Instead of testing it, he sent it off to the SBI and put me in jail anyway. Because of the lack of adherence to the rights of due process afforded me in 15A-606, I sat in jail for 8 MONTHS – the entire rest of the year.
        I realize my case is very unique, but it should be taken as an indicator of what is wrong with this system and what needs to be done to right those wrongs. I have a feeling you’ll dismiss what I’m saying through some turn of personal logic, but it doesn’t remove the importance of this issue. What do you think should be done about these kinds of situations? There are many factors that play into this, but the PC hearing issue is a HUGE one of those factors and should not be down-played to serve the convenience of your side of the bar, however important your above points may be when trying to nail a person who is actually guilty (an assumption that I do not envy a person such as yourself in having to make about every defendant they come across in order to make a living).

  11. Is it lawful to place a warrant on someone that bought stolen goods without the knowledge at the time of the buy that it was stolen? The item was returned and the persons that was the sellers were identified in a photo line up and the warrant is still on the baffled citizen.

  12. NC does not have a judicial system…..it is now called the political system…..so very sad…..

    Attorneys are allowed to twist and tweak the law….and get by with it….
    just last year when my daughter’s vehicle crash claim was settled….after over 5 years…..there was a towing and storage bill for over $5000 which the attorney was suppose to pay…..the company had agreed to settle for $2500…..

    The attorney then called the towing company and told the owner that he would send them $300 and if they did not like it….they would get nothing and there was nothing that they could do about it….

    I have sent this “issue” into the Bar…and they did nothing…..

    Attorneys can screw around with people’s lives and get by with it…..

    So there seem to be 2 sets of NC LAWS to follow…..one for the majority of us…and the other one for people who work in the judicial system….

    So very sad…..

  13. Just imagine how hard it is to get a prosecutor to believe a defendant when they allege perjury on a warrant affidavit. They will do backflips to avoid looking into it unless there is a video and that is not likely.

    Cops we expect to lie, especially narcs, they do it legally all day long and then we expect them to switch to the truth at the stage where it counts most, either in getting a warrant to check out a tip or suspicion , or to keep a case from getting dismissed in court.

    Cops justify it by what they see as the greater utility of convicting a person they see as guilty and not deserving of the laws supposed protection as opposed to the wispy theoretical protections afforded the citizenry by adherence to ‘ technical ‘ legal principles.

    Prosecutors, however, are far too smart and savvy to believe the claims made by some ( or many ) of the cops , claims that are too coincidental and heard all too often to be sincere. Just like Judges, prosecutors are loath to upset the apple cart by investigating such claims.

    Unless there is hard core proof of perjury , even when the cop cannot produce an alleged informant or explain anomalies that would stagger a statistician , prosecutors turn a blind eye. As long as a plea or conviction is assured, most all prosecutors will wink and nod at likely phony stories.

    In rural and small towns, it is almost unheard of for a defendant to file a suppression motion or to demand the production of an alleged informant , even when the state’s case is based entirely on the allegations of unknown and unproven informants, who may not even exist!

    At worst, the cop just claims that he promised the informant that he would never have to testify or appear. The case may go away but the cop risks no perjury investigation and moves on to another case. They stand to lose nothing unless exposed, and exposure is not sought out or desired by anyone in the system, except the accused.

    Every study of merit that examined police perjury concludes that it is ‘ commonplace ‘ and that prosecutors only hesitate when it comes to an open and obvious violation, one that might cause professional difficulty; but the line is crossed as soon as a prosecutor accepts a story for trial or other action that tastes sour and leaves ones’ eyebrows raised at the unstated but understood fact that to believe such a tale brings membership into the cop’s fraternity of those who see the Oath as something that does not matter enough to interfere with the ultimate goal: Conviction.

    Don’t pat yourself on the back for making sure that there are no egregious and obvious perjuries but allowing the subtle and unprovable ones to pass muster. Peosecutors are supposed to seek Justice, not to protect police from scrutiny of unlikely and unprovable stories. What is wrong with insisting that an informant appear before any magistrate asked for a warrant when the only alleged ‘ reliable ‘ source of information is the informant and there is no corroboration ?

    There is a case locally wherein a tip from someone of unknown and unclaimed reliability , matched with a highly general and non specific tale from an alleged ‘ reliable informant ‘ formed the basis of the warrant. NO investigative evidence whatsoever to support it..only a tip and a supposed informant that just happened along with exactly what was needed in a hurry, with no details.

    The prosecutor just ignores all this and offers a plea, hoping the time will not come when dismissal is necessary…that is not the attitude os someone who is devoted to justice, but expediency and results.

    Shame on anyone that fits that bill.

    • We see this way too often in small towns. The narcs make their own rules and ruin peoples lives. If you do not waive your PC hearing, you are threatened with potentially an indictment later on. A relative’s probable cause hearing has been continued twice…the state says they are not ready to proceed. In the interim, they leave defendants in limbo. Can’t move forward. In our town, they would arrest you at your workplace just to ruin your life!! Informants…what a joke. They are looking to get out of trouble…even plant evidence…when the car is supplied by the narcs and a tracker in the car!! No drugs found…Just saying…small towns can ruin good people.

  14. my son was not given a pc he also had a bond on a habitual status and i found out the
    da lie to the grand jury about my son in his paper to get a felon charger to go to superior court. i let the da know that my son was very sick with lupus and also community correction everything was check out to be right but he said he did’nt care

  15. The truth is for the DA to avoid giving a defendant a requested Probable Cause Hearing as requested is a violation of that defendant’s Due-Process. This means that the defendant is entitled to the hearing, requested it, did not waive it but did not get it! In order for a case to be bound over to Superior Court, it must be thru indictment so the time in between while the DA waits for an indictment which could be a year away; the defendant’s Due-Process right to the hearing is being violated by the Court. This should be challenged because procedural laws has been broken since a requested Probable Cause Hearing is part of the Stages of Criminal Procedures. The DA and the Courts are breaking the Law! The statues says a defendant is entitled to a Probable Cause Hearing, but there is no Law in N.C. that says the Court can violate that statue.

  16. My son has been in jail since October 19th,2015.He turned hiself in.The only time he has been before the Judge is when they set his bond,I have been to every court date they have set. At the January court date still not seeing the judge, his court appointed lawyer said his case would go to superior court.this lawyer has not even spoken to my son and I can’t even get him to return my phone calls. Johnston County Courts are a joke! It’s nothing but a power struggle and money hungy place.I seen a case where the guy was on his 3rd felony and he was giving a slap on the wrist.If you can’t treat all humans the same then you need to find another job.there is nothing fair about the Johnston County Court system.

  17. Just a public citizen chiming in, I have been told in my county that some judges are just not fourth amendment friendly, I would have thought the Constitution wasn’t optional.

  18. After reading many of these comments, it is clear most are not concerned with the defendant. You are more concerned about convenience for the court, Prosecutor, and expedience.

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