Duncan A. McMillan

Felony — Probable Cause Hearing — Indictment

In North Carolina, felony cases are usually, but not always, initiated by the issuance of a criminal warrant. In a felony case, the defendant is entitled to have a first appearance before a District Court Judge, usually within 72 hours of the arrest. The first appearance is an administrative setting at which the presiding judge must inform the defendant of the nature of the charges, review the conditions of pre-trial release previously set in the case, and make certain that the defendant understands his right to counsel in connection with the case. Unless a probable cause hearing is waived at the first appearance, the judge must also set a date for a probable cause hearing.

The North Carolina General Statutes provide that a person charged by a criminal warrant with a felony case is entitled to have a probable cause hearing within 15 working days of the first appearance date. In practical application, this “right” to a probable cause hearing is an empty right. It is very, very rare for a probable cause hearing to be conducted in Wake County. For practical purposes, the probable cause setting provides an opportunity for the defense attorney to gather information from the prosecutor regarding the state’s evidence in the case, and to determine whether the case might be resolved in the District Court by a way of a plea to a lesser included misdemeanor offense or by way of a guilty plea to a low grade felony. (District Court has jurisdiction to dispose of certain low-grade felony cases on bills of information. A bill of information is a form of criminal process, which will support the entry of a guilty plea and a judgment in a felony case).

If a felony case is not resolved in District Court, jurisdiction is transferred to Superior Court by submitting the case to the grand jury for the return of a true bill of indictment. A bill of indictment is the formal pleading required to transfer jurisdiction of a felony case from the District Court to the Superior Court. Although the District Courts have original jurisdiction for purposes of first appearance hearings and probable cause hearings, the Superior Court is otherwise vested with jurisdiction to handle felony cases. There is nothing magical about a bill of indictment. It is simply the formal criminal process used to bring a charge to court in Superior Court.

From time to time, defendants demand a probable cause hearing, and prosecutors offer no evidence, in which event the case is dismissed at the District Court level. Such a dismissal does not, however, prevent the prosecutor from submitting the matter to the grand jury for the return of a bill of indictment. If a case is dismissed for a finding of no probable cause, the defendant may be subject to an additional arrest and bond requirement upon the return of a bill of indictment.

Although most of the Wake County prosecutors are willing to share police reports and investigative material from their files, the criminal procedure act does not actually provide any formal mechanism for requesting discovery in a criminal case until probable cause is waived or the grand jury returns a true bill of indictment. The return of a bill of indictment triggers a number of procedural rights and time requirements in Superior Court. Among these rights are the right to request a formal arraignment; the right to request discovery; and the right to file motions regarding evidentiary and jurisdictional matters that might be present in a given case. The right to seek discovery is controlled by NCGS 15A-902.

The defendant’s right to request discovery is triggered by either the probable cause hearing or the date such hearing is waived, or the return of a bill of indictment, depending on variety of circumstances. Other discovery requirements and procedures are included in Chapter 15A-903 through 910 of the NCGS.