Defending Clients At Probable Cause Hearings In Cobb County And In The Atlanta-Metropolitan Area
Commitment hearings, more commonly known as probable cause hearings or preliminary hearings, are an opportunity for an accused who is in custody to have his case heard before a judicial officer in order to determine whether there is enough evidence for the case to proceed forward. Georgia Codes 17-7-20 through 17-7-34 and Rule 26.2 of the Uniform Rules of the Superior Courts of the State of Georgia provide the legal framework for probable cause hearings in the state of Georgia.
Purpose Of The Commitment Hearing
The purpose of this hearing is to determine:
- whether or not there is probable cause to believe that a crime has been committed and the defendant is the person who committed the crime; and
- whether the charges brought are appropriate to the acts committed and whether the acts constitute a felony or a misdemeanor.
In a preliminary hearing, the court is not concerned with whether or not the defendant is guilty of the offense he is charged with by using a 'beyond a reasonable doubt' burden of proof. Instead, the court's role is simply to determine if there is enough evidence to suspect the guilt of the defendant and to require him to appear and answer the charges at a future date.
What Is Probable Cause?
Simply put, probable cause does NOT mean proof beyond a reasonable doubt. Instead, it merely means that it is more likely than not that 1) a crime was committed; and 2) the defendant committed that crime. In other words, there is more than a 50% chance that the accused committed a crime.
The United States Supreme Court has defined the term "probable cause" as the:
Facts and circumstances within the [a person's] knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. Michigan v. DeFillippo, 443 U.S. 31 (1979).
The Process
During the preliminary hearing, each side introduces evidence. The prosecution tries to show probable cause. The defense tries to show lack of it. If probable cause is established during the preliminary hearing and the case involves a misdemeanor, it is forwarded to the appropriate court, and a trial date is set.
If the case concerns a felony, it is forwarded to the district attorney for presentment to the grand jury so that it can be formally charged via an indictment. Presentment to the grand jury may be waived by the defendant, or it may be waived by statute for less severe crimes. However, in Georgia, defendants accused of felonies have a right to indictment by grand jury.
An accused who either has no bail bond or is unable to afford bond and who requests a preliminary hearing is entitled to a hearing. However, the posting of bail bond constitutes a waiver of the right to a preliminary hearing.
Rule 26.2 of the Uniform Rules of the Superior Courts of the State of Georgia provide that at the commitment hearing, the following procedures shall be used:
- The rules of evidence shall apply except that hearsay may be allowed;
- The prosecuting entity shall have the burden of proving probable cause; and may be
represented by a law enforcement officer, a district attorney, a solicitor, a private attorney or
otherwise as is customary in that court; - The accused may be represented by an attorney or may appear pro se; and
- The accused shall be permitted to introduce evidence.
Duties Of The Court
Rule 26.2 of the Uniform Rules of the Superior Courts of the State of Georgia provide that at the commitment hearing, the judicial officer shall perform the following duties:
- Explain the probable cause purpose of the hearing;
- Repeat to the accused the rights explained at the first appearance;
- Determine whether the accused intends to plead "guilty" or "not guilty," or waives the
commitment hearing; - If the accused intends to plead guilty or waives the hearing, the court shall immediately bind
the entire case over to the court having jurisdiction of the most serious offense charged; - If the accused pleads "not guilty" the court shall immediately proceed to conduct the
commitment evidentiary hearing unless, for good cause shown, the hearing is continued to a later
scheduled date; - Cause an accurate record to be made of the testimony and proceeding by any reliable method;
- The judicial officer shall bind the entire case over to the court having jurisdiction of the most
serious offense for which probable cause has been shown by sufficient evidence and dismiss any
charge for which probable cause has not been shown; - On each case which is bound over, a memorandum of the commitment shall be entered on the
warrant by the judicial officer. The warrant, bail bond, and all other papers pertaining to the case
shall be forwarded to the clerk of the appropriate court having jurisdiction over the offense for
delivery to the district attorney. Each bail bond shall contain the full name, telephone number,
residence, business and mailing address(es) of the accused and any surety; - A copy of the record of any testimony and the proceedings of the first appearance and the commitment hearing shall be provided to the proper prosecuting officer and to the accused upon payment of the reasonable cost for preparation of the record; and
- A judicial officer, conducting a commitment hearing, is without jurisdiction to make final disposition of the case or cases at the hearing by imposing any fine or punishment, except where the only charge arising out of the transaction at issue is the violation of a county ordinance.
The Right Of An Accused To Either Testify Or Not Testify
Georgia Code 17-7-28 provides that:
The court of inquiry shall hear all legal evidence submitted by either party. If the accused wishes to testify and announces in open court before the court of inquiry his or her intention to do so, the accused may testify in his or her own behalf. If the accused elects to testify, he or she shall be sworn as any other witness and may be examined and cross-examined as any other witness. The rules of evidence shall apply except that hearsay shall be admissible. The failure of an accused to testify shall create no presumption against the accused, and no comment may be made because of such failure.
It is critical to remember, however, that any testimony a defendant gives at a preliminary hearing is sworn testimony that could be later used against him at trial.
Final Thoughts
Georgia Code 17-7-29 states that as long as the evidence requires it, a judge can find probable cause for an offense that was not even listed in the arrest warrant.
In addition, even if the court dismisses one or all of the charges, that does not prevent the district attorney from later presenting the case before a grand jury for indictment. It would, however, be potentially beneficial for a defendant on the issue of bond if one or more of the charges were dismissed. And if all of the charges were dismissed, the defendant would be released without having to post bond at all, and would not have to answer the charges unless the case was formally charged at a future date.