967 N.W.2d 797
N.D.2021Background
- Joseph Brown was charged with criminal trespass, burglary, theft (class C felonies), and criminal mischief; the district court held a preliminary hearing.
- Officer Gannon Miller was the State’s only witness; he did not respond to the scene, did not investigate, and had not spoken with witnesses—he had been "driving around looking for" Brown.
- The district court curtailed the State’s examination, concluded the proposed testimony was "nothing but hearsay," and dismissed the felony charges without prejudice, stating a witness must have "hands‑on, direct contact" to establish probable cause.
- The State appealed, arguing the court improperly excluded permissible hearsay testimony and prevented the presentation of evidence relevant to probable cause.
- The North Dakota Supreme Court reversed and remanded, holding the court abused its discretion by preventing the State from presenting hearsay evidence at the preliminary hearing and by misapplying the law on credibility and admissibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly excluded hearsay and curtailed examination at the preliminary hearing | Hearsay is permissible at preliminary hearings; the court must allow the State to present evidence and only then weigh credibility | The court has discretion to refuse hearsay and may assess weight and credibility (even give testimony zero weight) | Court abused discretion: must allow State to present evidence (including hearsay) and may judge credibility only if testimony is implausible or incredible as a matter of law; remand for preliminary hearing |
| Whether dismissal without prejudice is appealable by the State | Dismissal/quashing of an information is appealable under statute; dismissal without prejudice is equivalent for appealability | Dismissal was proper (no separate appealability argument preserved) | Court has jurisdiction: order dismissing without prejudice is appealable under N.D.C.C. § 29‑28‑07(1) as a quashing equivalent |
| Proper standard and scope of judge's credibility weighing at a preliminary hearing | Preliminary hearings require only minimal probable cause; judge should draw inferences favorable to prosecution and limit credibility rejection to implausible testimony | Judge may weigh evidence and assess credibility broadly at preliminary stage | Probable cause is a minimal standard; judge may only reject testimony as incredible when implausible as a matter of law and otherwise must allow the prosecution’s evidence to stand for probable cause determination |
Key Cases Cited
- State v. Mitchell, 960 N.W.2d 788 (2021) (discusses appealability principles and that hearsay may form the basis of probable cause at preliminary hearings)
- State v. Gratton, 938 N.W.2d 902 (2020) (preliminary hearing is a minimal probable‑cause screening and judge’s credibility weighing is limited)
- State v. Blunt, 751 N.W.2d 692 (2008) (probable cause at preliminary hearing may be based on hearsay; court may resolve conflicts but has limited authority to discredit testimony)
- State v. Gwyther, 589 N.W.2d 575 (1999) (an order dismissing a complaint or information is treated as an appealable quashing of an indictment)
- Healy v. Healy, 397 N.W.2d 71 (N.D. 1986) (characterizes the probable‑cause showing at preliminary hearings as minimal)
- People v. Buhrle, 744 P.2d 747 (Colo. 1987) (trial judge may not disregard testimony favorable to the prosecution unless it is implausible or incredible as a matter of law)