Wednesday, July 7, 2010

Probable Cause v. Probable Cause

P.C. is a phrase we criminal lawyers throw around all the time. And depending on where and how it's being used, it can have different meanings. But I wish the use of probable cause at preliminary hearings would stop. It's confusing and misleading.

Preliminary hearings are typically very short in duration with normally one witness testifying. Typically the arresting police officer testifies about the nature of the arrest. Cross examination is very limited and most defendants lose this hearing.

The purpose of a preliminary hearing is for the judge to determine if there is enough evidence in the case to allow the state to formally charge the defendant. The preliminary hearing judge is not concerned about the validity of the arrest and/or search. Without the basic constitutional protections, we in the defense bar are extremely outgunned at a preliminary hearing.

The burden on the state to get a case through preliminary is extremely low. And at the end of testimony the judge says one of 2 things: "finding of probable cause" or "finding of no probable cause."

But probable cause to what?

A lot of people understand the police must have probable cause to arrest and/or search. The mechanics of the law may not be understood, however. But most know the cops can't just walk up and start searching anyone standing on a sidewalk. They need "probable cause" to do so.

And when the preliminary hearing judge finds probable cause, too many people assume the judge was basically saying the cops had probable cause to do whatever they did. Wrong. Wrong. Wrong.

The defense attorney can later file a variety of pre-trial motions and attempt to get the case thrown out without risking a guilty verdict at trial. The 2 motions I use most are a motion to quash arrest and to suppress evidence. In most cases, those two requests are part of a single motion.

Many times the basis for both of these motions is no probable cause. And if there was no probable cause, the actions of the police were unlawful. As a defense attorney, if there is any challenge to the arrest and/or search, this is where it's litigated.

Factual issues are for trial: did the defendant do it? Legal issues are for motions: did the police officer have probable cause to stop and then search the defendant? In a lot of cases, the defendant is clearly guilty because they were found in possession of something illegal. For them, the only way to get out from under the case is a motion challenging the actions of the police. It is in this way that some guilty people "get off".

You might think that if the person is guilty, so what? And if you do think that way, you're thinking like a lot of cops. Many police take shortcuts around constitutional rights on the streets just to make a case. For them, the ends justify the means. We criminal defense attorneys (and some higher courts) are the only folks standing guard in protection of personal rights.

In some respects, motion hearings are sometimes do-overs of the preliminary. However, they are much longer and the officer has to answer all of my questions (within reason). But motion hearings are backwards compared to trials.

Since it's a defense motion, we get to go first. We call witnesses. The State cross-examines them. We rest. And then the State can call witnesses. I get to cross them. The State rests. I argue. The State argues. I rebut. The judge rules.

Most defense attorneys call the arresting officer(s) as witnesses. But now we are on direct and can't ask leading questions. This feels very backwards in practice since we are used to taking cops on cross. And watching the State cross-examine its own police is strange because it's about as gentle as being stroked with a silk handkerchief.

But sometimes, I just call the defendant and rest. If my client can prove up my motion through his testimony alone, I put him on and rest. The State will then have to call their officers to rebut the allegations set forth in the defendant's testimony. This puts me back in my comfort zone of cross-examining police officers.

Sometimes, however, we file motions to get hearings that are quasi-depositions. Serious cases, like murders, are rarely disposed of by motion. I don't think the judges want to throw murder cases out. It's too political.

But by filing a pre-trial motion and conducting a hearing on that motion, I am going to get police officers testifying under oath about the case. I am going to hear things in advance of trial that are not in police records and reports. And I would always call the cops as my witnesses.

In these types of hearings, I want to ask very general, open-ended questions, sit back, and let the cop talk. The more they talk the better. If the testimony changes later, I have impeachment material. If it stays the same, then I have heard it before.

Ultimately these motion hearings are essentially discovery depositions, which are not allowed in criminal cases. What I get out of these hearings is a preview of the State's case at trial.

I don't know if I read somewhere to do these or if I just thought of it. I don't think I invented it, but I am the only one I have seen use it. I filed 2 of these motions in a recent case (a murder). I challenged the arrest and the show-up identification. I had my hearing. I was able to impeach the arresting officer with his own report. As expected, the judge denied both motions. 

However, that case was dismissed on the day of trial. I think part of the reason it was dismissed was based on testimony that came out during the motion hearing. Why? It conflicted greatly with the version of the events the one eyewitness gave to my investigator a month later. That interview was recorded, burned to CD, and given to the prosecutor a month before trial. Also, the 3 police officers that testified at the hearing were not consistent with each other or the police records.

Again, this is a motion with merit that I doubt will be granted. However, I get cops on the record testifying under oath about the case. Any time you can get this to happen before trial is a very good thing in my opinion.

In summary, probable cause is usually the issue in dispute in pre-trial motions to quash arrest and suppress evidence (at least in mine). And since probable cause to stop, probable cause to arrest, and probable cause to search all have entirely different meanings based on the situation, it can be confusing. Add in probable cause from preliminary hearings and it's a bigger mess for the defendant and the family.


1 comment:

  1. Just a law student, but this is fascinating.


Please feel free to offer comments and opinions. However, if you require legal assistance please call 312-504-4554 to speak with me personally.