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Waiver of Probable Cause

Navigating the legal system can be confusing at times. One of the more complicated aspects of the Criminal Procedure Act involves dismissing charges to the Grand Jury vs. Waving Probable Cause.

It helps to understand the underlying logic and protections afforded us under the US and North Carolina Constitution involving Due Process of the Law and Equal Protection legal issues.

“As criminal lawyers we want to make sure you understand the process of handling charges in court. It’s often not as simple as it may appear.”

– Danny Glover, Outer Banks Lawyer

What is Probable Cause?

You may have heard the term, “no warrants shall issue” without being supported by probable cause. Sometimes lawyers may refer to the legal standard as reasonable grounds to believe a crime took place.

That’s an important protection afforded to us under the 4th Amendment.

Probable cause is a term of art. It protects us from unreasonable seizures (arrests) and illegal searches. It is a legal standard requiring proof more than Reasonable Suspicion, but clearly less than Beyond a Reasonable Doubt.

In simple terms, probable cause is a probability. It is not the same as a determination of Guilty or Not Guilty. Reasonable minds may differ regarding whether it’s close to the civil standard of greater weight of the evidence.

Criminal charges are not allowed to proceed without there being a formal finding of Probable Cause, unless the person facing the allegations waives his or her rights to a PC hearing.

What does Dismissed to Grand Jury Mean?

If a matter has been dismissed to GJ, that means the State (the ADA) has sent the matter for consideration by the Grand Jury. The members are charged with the responsibility of issuing either a Not True Bill or a True Bill of Indictment.

An indictment by Grand Jury is nothing more than a formal finding of Probable Cause. It does not mean you’re guilty of criminal charges.

It’s a method under the Criminal Procedure Act that confirms the identity of the accused and further makes certain procedural (Constitutional) protections are followed.

Generally speaking, there is no statutory or constitutional right to appear before the Grand Jury, to answer the allegations, and/or to present evidence in the determination of Probable Cause.

But it is technically different than a Probable Cause hearing in court, where the proceedings take place in open court and there is the opportunity to cross-examine witnesses and present evidence, as may be appropriate.

For felony charges, a finding of Probable Cause is required in order for the case to be transferred to Superior Court. That can be accomplished in several different ways:

  • True Bill of Indictment by Grand Jury
  • Waiver of Probable Cause
  • District Court Probable Cause Hearing with finding of PC

Larger jurisdictions in North Carolina rarely, if ever, conduct District Court Probable Cause hearings. As such, either the matter is dismissed to the Grand Jury or the accused voluntarily waives their right to a PC hearing.

There are strategic considerations in determining the most appropriate manner to proceed. Each client, like each case, is different and has different needs. It’s really important to seek sound legal advice if you are faced with this issue.

“We strongly encourage people facing felony charges to speak with a lawyer without delay. There can be unintended consequences of forcing the State to dismiss charges to a Grand Jury, including the possibility of re-arrest.”

– Danny Glover, OBX Criminal Lawyer

Should I Sign a Waiver of Probable Cause?

If a defense attorney has asked you to sign a waiver of PC, chances are there is a good reason for that. In many, if not most instances, we’re trying to avoid a re-arrest and posting new bond.

In the event the prosecutor is unwilling or unable to proceed forward with a Probable Cause hearing in District Court, they may ask the person facing charges to waive. If you’re out of jail, that often makes sense.

If you refuse to waive, that’s your legal right. At the same time, you need to understand the State can file a dismissal of charges and thereafter submit the matter to the Grand Jury for Indictment.

The vast, vast majority of criminal matters sent to the Grand Jury result in a True Bill of Indictment. Once indicted, a Warrant for Arrest is issued for your arrest and the case will be transferred to Superior Court for disposition.

If you waive probable cause, the matter can be submitted to Superior Court and may not result in re-arrest. Each jurisdiction has unique procedures, protocols, and preferences regarding the issuance of an Indictment.

Speak with an experienced Outer Banks defense lawyer right away. Your future and your well-being deserve careful consideration of the facts, NC criminal laws, and constitutional protections.

Danny Glover is here to help you in Hatteras, Avon, Hatteras Island, Southern Shores, Currituck, Ocracoke, Kill Devil Hills, Nags Head, Duck, and Kitty Hawk.

Call now for a complimentary consultation.

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