what is the legal term for challenging the probable cause of a case? does paperwork need to be filed for this? how do I ask for this pre-trial

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what is the legal term for challenging the probable cause of a case? does paperwork need to be filed for this? how do I ask for this pre-trial

I heard there was a way to have a pre-trial hearing to determine that the officer had enough of a probable cause to charge you with a crime? if there was not suffeciant evidence to support the probable they cannot proceed further?

Asked on June 18, 2009 under Criminal Law, Minnesota

Answers:

M.S., Member, Connecticut Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Although I do not practice in MN, generally the first question when dealing with a probable cause issue is whether the arrest was "on-site" or the result of a warrant.  If the arrest was made on-site, a motion to dismiss may be based on a lack of probable cause.  If the arrest was made pursuant to a warrant, the issue gets trickier due to the fact that a judge would have had to have made a probable cause determination prior to signing off on the warrant.  However, the inquiry does not end there.  If you can demonstrate that a material fact was either left out of the warrant, and/or that there were material misrepresentations within the warrant, and that those statements/omissions would have affected the probable cause determination, then pursuant to the doctrine of Franks v. Delaware, that may also be a basis for a motion to dismiss.  Regardless, these are highly complicated areas of the law; therefore, I recommend that you consult with and/or retain a criminal defense attorney to discuss this issue further (and/or draft the appropriate motions) in addition to evaluating any other potential defenses that may be available to you based upon the particular facts of your case.


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