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Probable cause is a legal term used in most common law American
criminal law jurisdictions that denotes the standard by which a police officer
may conduct a personal or property search, or an arrest. This term comes
from the Fourth Amendment of the United States Constitution.
The most widely held definition is "a reasonable belief that a crime
has been committed". However, this definition is controversial. A
proposed alternate definition is "reason to believe that an injury
had criminal cause".
In the United States a probable cause hearing is the preliminary hearing
that typically takes place after arraignment and before a serious crime
goes to trial; the judge is presented with the basis of the prosecution's
case and the defendant is afforded full right of cross-examination and
the right to be represented by legal counsel. If the prosecution cannot
make out a case of probable cause the court must dismiss the case against
the accused. See also: evidentiary hearing.
Summary of the Controversy
The controversy over the classic definition of probable cause can be categorized
in the following areas:
- Syntactic problems: definition vs. usage
- The definition: "reason to believe that a
crime has been committed" is inconsistent with the most common
usage i.e., "The officer had probable cause to believe a crime
had been committed." (simple synonym for "reason").
- Law/Crime circularity
- The common definition makes reference to either
"crime" or "violations of law", but the United
States Constitution is defining the law. If law is "that which
is crime", and crime is "violations of law", then
this forms a logical circle. There must exist an a priori notion
of "that which is crime" before codification of law, i.e.,
"a crime is when a person causes injury to victim". Without
a tight coupling between the notion of crime and "victims with
injury", a large number of "victimless crimes" potentially
might arise (and, civil libertarians argue, in fact have)
- Improper sequence of events
- According to the Fourth Amendment, the arrest sequence
should be
- Civilian complaint ("oath or affirmation")
- Probable Cause determined
- Specific warrant issued (an important check
against the execution of standing orders)
- Arrest made
However, most arrests today are warrantless, and probable cause
hearings are almost always made after the fact.
- Weak Burden of proof
- To prove "reason to believe that a crime has
been committed", all that is needed is the statement of opinion
of one person, the arresting officer. With "reason to believe
that an injury has criminal cause", a more rigorous burden
of proof is required, that is, demonstrable facts connecting the
accused with the victim's injury.
- Undermines Bill of Rights mission of protecting rights
of all citizens, including those accused of crimes
This all must be understood in the context of the times
of the American Revolution. These conditions are detailed in the Declaration
of Independence. Civil libertarians argue that the corruption of this
definition over time, deviating from what the original authors had intended,
is one primary factors which has allowed near police state conditions
to arise in America.
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