PROBABLE CAUSE CONFERENCE
The Probable Cause Conference is generally the first hearing in a felony case following the District Court Arraignment. The court is required to schedule the Probable Cause Conference not less than 7 days and not more than 14 days after the District Court Arraignment. The purposes of the Probable Cause Conference are the following:
- Discussions between the prosecutor and defense attorney regarding possible plea agreements and other pretrial matters, including bond or bond modifications. The judge may also be included in those discussions at times;
- To have the judge consider requests for modification of bond;
- To take testimony from the alleged victim if requested by the prosecutor.
Below are some common questions and answers regarding the probable cause conference. If you have specific questions regarding the probable cause conference in your case, you should always feel free to consult your Blanchard Law attorney.
Can I waive the probable cause conference?
Yes, but only if the prosecutor also agrees to waive the hearing. Both the defendant and prosecutor are entitled to hold the probable cause conference, but if both agree to waive the hearing, they are required to submit a written statement to the court waiving the probable cause conference, and notifying the court whether they will hold the preliminary examination, waive the preliminary examination, or enter a plea.
Will the prosecutor request to take testimony from the alleged victim in my case?
The court rules permit the prosecutor to take testimony from the alleged victim at the probable cause conference. However, it is more common for the prosecutor to wait to take the testimony of the alleged victim at the preliminary examination, the hearing that follows the probable cause conference. It is relatively rare for the testimony to actually occur at the probable cause conference.
What happens at the probable cause conference?
During the probable cause conference, your lawyer will sit down and have a discussion with the prosecutor who is in charge of prosecuting your case. They may talk about information that the prosecutor still needs to provide to you and your lawyer, such as police reports, dash-cam or body-cam videos, videos of witness interviews, electronic evidence, or laboratory reports, and discuss timelines and methods for turning over that evidence.
The probable cause conference is also an opportunity for your lawyer to begin negotiating a possible resolution. The resolution that your lawyer is seeking varies from case to case. In some cases, nothing short of a dismissal is acceptable. In other cases, clients are seeking a reduction of the criminal charges or a guarantee that the consequences of a plea will be limited in some way, such as with a sentencing agreement. Your lawyer’s goal in negotiating with the prosecutor will be to obtain the best possible offer possible, and then you will be given the opportunity to decide whether that offer is acceptable to you.
Occasionally, the judge becomes involved in the conversation between the prosecutor and your lawyer. The judge might give input on whether or not they would accept a particular plea offer or sentencing agreement, or make suggestions about resolving the case in a particular way. However, the judge can’t force the prosecutor to make any particular offer to resolve the case, just like the judge can’t force you to accept any particular offer.
After your lawyer meets with the prosecuting attorney, he or she will need to have a discussion with you about the results of the meeting. If any plea offers are made, you’ll need to consider whether or not to accept the offer. Your lawyer’s role is advise you about the possible consequences of the plea offer, and make recommendations for a course of action in the case. You make the ultimate decision about whether or not to accept any offer, or to move the case forward toward the preliminary examination.
In some courts, you will end the probable cause conference by going in front of the judge in the courtroom to make a record about what happened at the meeting between your lawyer and the prosecutor, and whether any decisions have been made about whether the preliminary examination will be held or waived, or whether a plea will be entered at this stage.
Will I see the judge at the probable cause conference?
In many courts, you will at least briefly appear in front of the judge inside the courtroom during the probable cause conference, in order to make a record about what happened during the probable cause conference. You should dress for court assuming that you will appear in front of the judge. For men, you should wear a suit and tie, or at a minimum, dress slacks, collared shirt, and a tie. For women, dress slacks, a skirt, or a dress is appropriate. You should not wear jeans, low-cut shirts, short skirts, shorts, or flip-flops.
In some cases, where no plea agreement is reached, you may leave the courthouse without ever appearing in front of the judge. Sometimes, you simply wait while your attorney engages in a discussion with the prosecutor, and then have a private discussion with your lawyer. After that, your lawyer may advise you that you are free to leave the courthouse, and will give you instructions regarding the next steps in the case.
Who is present at a probable cause conference?
In criminal cases, the defendant is required to be present at the courthouse during the probable cause conference. However, it is common practice for the defendant not to be present in the room during the actual meeting that takes place between the prosecuting attorney and defense attorney. In most cases, the probable cause conference only involves the prosecuting attorney and defense attorney. However, sometimes the judge might also be present.
Why won’t I be present in the room during the meeting with the prosecutor?
It can feel frustrating to remain in the hallway of a courthouse while your lawyer goes into a conference room or judge’s chambers to discuss your case without you. However, it’s for your protection that your lawyer doesn’t ask you to be present during this meeting. When you make statements to police, prosecutors, or judges, those things can have a negative impact on you later at a trial or at sentencing. Your lawyer’s statements during plea negotiations can’t be used against you in the same way.
Additionally, when your attorney meets privately with the prosecutor, it allows them to have a frank conversation about all the aspects of your case, and get unfiltered feedback from the prosecutor. There is sometimes important information that the prosecutor might say to your lawyer privately that he or she might never say in front of you.
Will my case be resolved at the probable cause conference?
Some cases are resolved at the probable cause conference. Some are not. Whether your case is resolved depends on a number of factors. It is likely that a plea offer will be made at the probable cause conference. You will make the ultimate decision about whether that plea offer is acceptable to you. If you decide that the plea offer made is acceptable to you, a plea can be entered on the date of the probable cause conference in most courts.
The prosecutor may also ask that you waive the preliminary examination, the next hearing after the probable cause conference, in exchange for holding a plea offer open so that you can have more time to consider the offer. In general, we don’t recommend that you waive the preliminary examination unless the plea offer made is one that you are fairly certain you will accept.
If your case isn’t resolved at the probable cause conference, that doesn’t mean that it can’t ultimately be favorably resolved at a later date. Because probable cause conferences occur early on in the case, the parties simply don’t always have enough information to successfully negotiate a resolution. Other cases simply shouldn’t be resolved with a plea, and require a jury trial. You’ll have the opportunity to decide the best path for your case with the assistance of your Blanchard Law attorney.
What do I need to do to be prepared for the probable cause conference?
A probable cause conference is not a trial. It’s generally not a time where witnesses will be presented by either you or the prosecutor, with the exception that the prosecutor in rare instances puts on testimony from the alleged victim. You won’t be required to testify, and you won’t be required to present any evidence to the court. There is generally a significant period of time between the probable cause conference and the trial, so you don’t need to be worried that your case isn’t ready yet to be heard by a jury. The probable cause conference is part of the process of getting ready for a trial, if that ultimately becomes necessary to resolve your case.
Your lawyer may need your assistance in gathering information ahead of the probable cause conference, and may want you to provide documentation that could be helpful in negotiating a favorable resolution. You should provide any documentation requested in advance of the probable cause conference.