Criminal procedure
Criminal investigation
Arrest warrant  · Search warrant
Probable cause  · Knock and announce
Exigent circumstance
Search and seizure  · Arrest
Right to silence  · Miranda warning (U.S.)
Grand jury
Criminal prosecution
Statute of limitations
Bill of attainder  · Ex post facto law
Criminal jurisdiction  · Extradition
Inquisitorial system  · Adversarial system
Arraignment  · Indictment
Nolo contendere (U.S.)  · Plea bargain
Rights of the accused
Right to a fair trial
Presumption of innocence
Jury trial  · Speedy trial
Habeas corpus  · Bail
Exclusionary rule (U.S.)
Self-incrimination  · Double jeopardy
Verdict and sentencing
Acquittal  · Conviction
Not proven (Scot.)
Mandatory sentencing
Suspended sentence
Parole  · Probation
Tariff (UK)  · Life licence (UK)
Dangerous offender (Can.)
Cruel and unusual punishment
Capital punishment  · Execution warrant
Related areas of law
Criminal defenses
Criminal law  · Evidence
Civil procedure
Portals: Law  · Criminal justice

 

 

Contents [hide] 1 Definition 2 Related cases 3 Probable cause hearings 4 Critique 5 External links

Probable cause hearings

In the United States a probable cause hearing is the preliminary hearing that typically takes place after arraignment and before a serious crime goes to trial; the judge is presented with the basis of the prosecution's case and the defendant is afforded full right of cross-examination and the right to be represented by legal counsel. If the prosecution cannot make out a case of probable cause the court must dismiss the case against the accused. See also: evidentiary hearing.

 

Critique

The first definition above "a reasonable belief that a crime has been committed", has been criticised for several reasons, highlighted here. The alternative definition "reason to believe that an injury had criminal cause" corrects these deficiencies.

Circular reasoning: Which came first, law or crime? If crime is "things which the law prohibits", and law defines "that which is crime", we have self-reference. And since the phrase probable cause first occurs in the United States Bill of Rights, which was defining the law, it has been suggested that probable cause must be defined, not in terms of law, but in terms of connection between the accused and an injured victim.

Semantic Error: The most common usage of "probable cause" is usually something like "the officer had probable cause to believe that a crime occurred". However, this definition also includes belief. A simple substitution of the definition into the most common usage results in the bizarre "the officer had a reasonable belief that a crime has been committed to believe that a crime occurred". Either our definition or this usage is incorrect.

Individual Discretion: The system of government defined by the US Constitution, with separation of powers, checks and balances, and juries, suggests that the decision to arrest should not be made on-the-spot by an individual, such as a police officer. The language of the Constitution suggests that arrests, searches and seizures should be a deliberative process, starting with the "oath or affirmation" of a civilian complaint, and that indictments should be made by (Grand) juries.

Failure to make connection to victim's injury: The purpose of the Fourth Amendment is to protect the rights of citizens against the abuses of government. The Declaration of Independence states that the Colonists were being "transported beyond the seas to be tried for pretended offenses".