What Happens at a Probable Cause Hearing in NC?

This guide is for anyone charged with a felony in Greensboro or Guilford County who has been given a probable cause date.

The UNC School of Government’s Defender Manual notes that dismissals here are not common. The State can also skip the hearing by indicting first.

A lawyer can cross-examine the State’s witnesses under oath and build a record for trial. That is where defense for a felony charge in Greensboro starts, before the case reaches superior court.

Have a probable cause date? Call (336) 379-0539 before it arrives, so your lawyer has time to prepare.

What Is a Probable Cause Hearing?

A probable cause hearing is a district court hearing on a felony charge, held before any indictment. The Defender Manual notes the right comes from statute, not the constitution.

G.S. 15A-611(b) sets the standard in these words:

“The State must by nonhearsay evidence, or by evidence that satisfies an exception to the hearsay rule, show that there is probable cause to believe that the offense charged has been committed and that there is probable cause to believe that the defendant committed it.” G.S. 15A-611(b)

Probable cause is a much lower bar than guilt, and there is no jury.

Under In re Winship, 397 U.S. 358 (1970), a conviction at trial needs proof beyond a reasonable doubt.

For the trial side, see who carries the burden of proof at trial.

If the term itself is new, read how probable cause differs from reasonable suspicion.

When the Hearing Happens: The 15-Working-Day Clock

The hearing clock starts at your first appearance before a district court judge. If you are held in custody, that appearance comes within 72 hours or at the next regular session, if sooner (G.S. 15A-601(c)).

If you were released before it, the first appearance is held at the next session of district court in the county.

At that first appearance, the judge must tell you the charges, confirm you have the paperwork and review your release (G.S. 15A-605). It helps to know what happens at your first appearance before that day comes.

Unless you waive it, the judge must set the hearing no later than 15 working days after the first appearance (G.S. 15A-606(d)). If no district court session is scheduled in the county within that time, it goes on the first day of the next session.

The hearing also cannot be set sooner than 5 working days after the first appearance, unless you and the prosecutor both agree.

Count working days, not calendar days.

If no court holiday falls in between, the 15th working day after a Monday first appearance is usually the Monday three weeks later.

A continuance or the next-session rule can move the date.

Either side can ask to continue the hearing for good cause. Except for extraordinary cause, the motion must be made at least 48 hours before the hearing (G.S. 15A-606(f)).

A special rule covers people who have no lawyer yet, can afford one and have said they want one. The judge will tell them the hearing will not be continued because they still have no lawyer, except for extraordinary cause (G.S. 15A-606(e)).

What Happens at a Probable Cause Hearing in Court, Step by Step

At a probable cause hearing, the State calls sworn witnesses. Your lawyer tests them, and then the judge rules.

1The Prosecutor Calls Witnesses Under Oath

A prosecutor must represent the State, and you may be represented by a lawyer (G.S. 15A-611(a)). Every witness testifies under oath or affirmation and can be cross-examined.

2Your Lawyer Cross-Examines

The Defender Manual calls the hearing a chance for discovery and for building impeachment evidence for trial.

The manual also advises counsel to ask that the hearing be recorded, and transcribed if the case goes to trial.

3The Evidence the State Can Use

The State must use nonhearsay evidence or evidence that fits a hearsay exception (G.S. 15A-611(b)). The statute adds two exceptions of its own.

An expert’s lab or fingerprint report is admissible. If there is no serious contest, reliable hearsay can also prove facts such as ownership of property or chain of custody.

Most of the Rules of Evidence do not apply here; only the privilege rules do (N.C. Rule of Evidence 1101(b)(3)). The hearsay limits in G.S. 15A-611(b) still apply.

The district judge does not have to throw out evidence because it was gathered unlawfully (G.S. 15A-611(b)). The Defender Manual notes the judge may still choose to exclude it, so your lawyer can raise the issue.

4Whether You Testify

You may testify, call and question your own witnesses, and offer other evidence (G.S. 15A-611(a)(3)). The Defender Manual says counsel should rarely call the defendant or defense witnesses.

What you say at the hearing can be used against you at trial, so decide this with your lawyer.

Three Ways the Judge Can Rule

The judge must take one of three actions at the end of a probable cause hearing.

Ruling	What Happens Next	Statute
Probable cause found for the felony or a lesser felony	The case is bound over to superior court, and the judge notes the findings in the case records.	G.S. 15A-612(a)(1)
Probable cause only for a lesser misdemeanor	The case can stay in district court. A plea needs the prosecutor’s consent. A trial can happen at once if both sides agree, or is set 5 to 15 working days out.	G.S. 15A-612(a)(2), G.S. 15A-613
No probable cause on any charge	The judge must dismiss. The State can still bring a new prosecution for the same offense.	G.S. 15A-612(a)(3), (b)

After bindover, the prosecutor must send a bill of indictment to the grand jury. The exceptions are a dismissal or a bill of information (G.S. 15A-627(a)).

The next step is explained in how a grand jury indictment works.

If you are in custody when the case is bound over, the judge must review your release again (G.S. 15A-614). Before that moment, it helps to know how a bond motion works.

Why This Hearing Matters Even When the Case Goes Forward

The Defender Manual calls discovery and impeachment the hearing’s possibly more important functions, because courts do not often dismiss for lack of probable cause.

The manual adds that the hearing may give both sides a more realistic view of the case and encourage a plea agreement. A judge may also be willing to lower bond after learning about weaknesses in the State’s case.

How much you gain depends on your lawyer’s preparation and the facts of your case.

Waiving or Losing the Hearing

You can give up the hearing, but only in writing (G.S. 15A-606(a)). If you have a lawyer or want one, a waiver before the hearing date needs written consent from you and your lawyer.

A waiver means the judge must bind the case over to superior court (G.S. 15A-606(c)). Neither a demand nor a waiver can be used as evidence at your trial (G.S. 15A-606(b)).

A lawyer may waive for a reason. The Defender Manual says a prosecutor may offer earlier discovery, a bond reduction or a misdemeanor plea in return.

Discovery timing is another reason to hire early. If you have a lawyer before or during the hearing, or before you sign a waiver, your lawyer has 10 working days after it to request discovery as of right (G.S. 15A-902(d)).

Without a lawyer by then, that 10-day window runs from a later event, such as notice of an indictment or the appointment of counsel.

The hearing can also be lost. It may not be held if you waive indictment and a bill of information is filed in superior court before the hearing date (G.S. 15A-611(d)).

The Defender Manual explains that once the State gets an indictment, the district court can no longer hold the hearing. See how an indictment can cancel this hearing.

The manual also says some judicial districts still hold probable cause hearings and many others do not. Where they are rare, counsel may need to file a demand.

Immediate Steps to Take Before Your Hearing

Use the days before a probable cause hearing to prepare with a lawyer.

• Call a lawyer before the hearing date, not on the morning of it.
• Write down the names of possible witnesses and keep every paper you received.
• Do not discuss the case with police or post about it online.
• Go to every court date. If you were released and miss court, a judge can issue an order for your arrest (G.S. 15A-305(b)(2)).

The safest move is to talk to a felony lawyer before the hearing. You can also meet the Greensboro criminal defense lawyers at our firm and see the charges they handle.

Have a hearing date coming up? Call (336) 379-0539 today so there is time to prepare.

Frequently Asked Questions

This article explains North Carolina law in general terms. It is not legal advice about your case, and laws, penalties and court procedures change. Contact an attorney about your specific situation.