Probable cause and standards of proof |

Probable cause and standards of proof

Last week, the judge in the Kobe Bryant case found that “probable cause” existed and, accordingly, Mr. Bryant would be bound over for trial on the charges lodged against him.

All well and good, I suppose (unless, of course, you’re Kobe Bryant), but just what is “probable cause?” And while we’re at it, let’s take a minute or two to discuss what will now be the greater standard of proof against which the prosecution’s case must be weighed by the jury that will ultimately decide Kobe Bryant’s fate.

In his “Order re Probable Cause,” Judge Gannett, held that “the court finds that the evidence, taken in a light most favorable to the prosecution, is sufficient to “induce a reasonable belief’ that defendant (i.e., Kobe Bryant) committed sexual assault as charged.”

To the uninitiated in the ways of law, the judge’s line “taken in a light most favorable to the prosecution” might raise some eyebrows. Was the judge “home-courting” Mr. Bryant? Well, in a word, no.

First, the purpose of a preliminary hearing is to determine if there exists probable cause to believe that an offense has been committed and that the person charged committed it.

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Second, the probable cause standard requires evidence “sufficient to induce a person of ordinary prudence and caution conscientiously to entertain a reasonable belief” that an accused person committed a particular crime.

“Probable cause” can be described, alternatively, as “reasonable cause” or, perhaps less elegantly, as “having more evidence for, than against.”

“Probable cause” means a reasonable ground for belief in the existence of facts warranting the proceedings complained of. It is an apparent state of facts found to exist upon reasonable inquiry (that is, such inquiry as the given case renders convenient and proper) which would induce a reasonably intelligent and prudent person to believe that the accused committed the crime charged.

The keys here are upon the “apparent facts,” upon “reasonable inquiry” and giving rise to a “reasonable belief.” There is nothing absolutist about this standard. Absolutism is why cases are tried and verdicts ultimately rendered.

In criminal proceedings, the evidence at preliminary hearing must be “taken in a light most favorable to the prosecution.” Still, the prosecution has the burden of establishing probable cause and that probable cause exists as to each element of the crime charged.

In simplistic terms, this means that there must be a reasonable belief that the accused committed each necessary link in committing the crime. At preliminary hearing, it is not necessary for the prosecution to “show beyond a reasonable doubt” that the defendant committed the crime or even the probability of the defendant’s conviction. This is left for trial.

A preliminary hearing has a limited purpose and that is to determine the reasonableness of trying the accused for the crime with which he or she is charged. The preliminary hearing is not a mini-trial and the judge, in conducting a preliminary hearing, is not a trier of the facts. Rather, his or her sole function at this stage in the proceedings is to determine the existence or absence of probable cause, to determine the reasonableness of the belief that the accused “more likely than not” appears to have committed the crime.

Admittedly, the standard is not harsh and, without pretension to the contrary, errs on the side of law enforcement. Evidence which may be presented at a preliminary hearing, with its more relaxed procedural rules, may be barred from trial.

In fact, hearsay and other “incompetent” evidence may properly be presented at a preliminary hearing. In fact, hearsay evidence can comprise the bulk of evidence presented at the preliminary hearing. Generally, however, it does not comprise the entire sum and substance of the hearing. In fact, where competent evidence is available, the prosecution may rely entirely on hearsay.

So, if a “more-probable-than-not” standard governs preliminary hearings, upon what standard will a criminally accused (and Kobe Bryant, specifically) be judged? Here the bar gets raised substantially. Rather than “reasonable belief” and “apparent facts,” the prosecution must “prove” its case “beyond a reasonable doubt.”

Keep in mind that for guilt to be determined, the accused will be convicted (or not) by amateurs. That is, the accused’s fate will be decided by the lay men and women of the jury. Every person accused of a felony has the right to be tried by a jury of 12, and the verdict must be unanimous.

At the outset, that alone presents a formidable hurdle. Twelve amateurs of ordinary sensibilities, reason and conscience must be convinced “beyond a reasonable doubt” that the accused committed the crime of which he stands accused and every element of (or link in) that crime.

“Beyond a reasonable doubt” means, simply, “fully satisfied,” “entirely convinced,” or sometimes phrased as “convinced to a moral certainty.” It can be understood to mean “clear, precise and indubitable.” The facts must be proven to establish clear and uncontroverted guilt. If “probable” cause means “reasonably likely,” “beyond a reasonable doubt” means “with certainty,” as certain as a human endeavor can be.

When Judge Gannett bound Kobe Bryant over for trial, he found, erring on the side of The People, upon the limited evidence presented that “reasonable people could reasonably infer” that Kobe Bryant had “likely’ committed the crime with which he’s charged.

If Mr. Bryant is to be found guilty by a jury of 12 earnest citizens, they must be “unshakably certain” that the facts indisputably support the crime as charged.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. He may be reached at 926.4461 or by e-mail at

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