Section 6.1 Preliminary Hearing Distinguished From Probable Cause Hearing

• Library: Criminal Practice 2012 Supp

A. (§6.1) Preliminary Hearing Distinguished From Probable Cause Hearing

A preliminary hearing, as it is referred to in Rule 22.09, or preliminary examination, as it is called in § 544.250, RSMo 2000, is a proceeding in which a judge makes a legal determination as to whether sufficient evidence has been presented by the State of Missouri to hold the defendant over for trial on a felony complaint. The preliminary hearing is not the probable cause hearing referred to in the statutes and Rules for issuance of a warrant for an arrest. See Rule 22.04(a)(1); § 544.020, RSMo Supp. 2004. The determination of probable cause for an arrest is made either before the arrest warrant has been issued or when the accused is brought before a judge after an arrest without a warrant. Gerstein v. Pugh, 420 U.S. 103 (1975). For time limits on detention without a charge or warrant, see § 544.170, RSMo Supp. 2004. Hearings for probable cause to arrest are very informal, and there is no right of cross-examination or right to counsel. In other words, hearings on probable cause to arrest are not adversarial in nature. The preliminary hearing, however, is an adversarial proceeding that is held to determine sufficiency of evidence to hold the defendant for trial; thus, it occurs later in the criminal proceedings.

The right to a preliminary hearing or examination is established in § 544.250 and Rule 22.09. A preliminary hearing is a means to prevent abuse of power by the prosecuting attorney while at the same time permitting arrest and detention of accused persons by means of limited inquiry into whether probable cause exists to believe that a felony was committed and that the accused is the offender. State v. Menteer, 845 S.W.2d 581 (Mo. App. E.D. 1992); State v....