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Previous PageFile uploaded: 11/1/2019

 

RULE7B.  Preliminary examinations.

(aBurdenof proof. At the preliminary examination, the state has the burden of proofand proceeds first with its case. At the conclusion of the state's case, thedefendant may testify under oath, call witnesses, and present evidence. Thedefendant may also cross-examine adverse witnesses.

 

(b) Probablecause determination. If from the evidence the magistrate finds probable cause tobelieve that the crime charged has been committed and that the defendant hascommitted it, the magistrate must order that the defendant bebound over for trial. The findings of probable cause may be based onhearsay, in whole or in part. Objections to evidenceon the ground that it was acquired by unlawful meansare not properly raised at the preliminary examination.

 

(c) Ifno probable cause. If the magistrate does not find probable cause to believethe crime charged has been committed or the defendant committed it, themagistrate must dismiss the information and discharge the defendant. Themagistrate may enter findings of fact, conclusions of law, and an order ofdismissal. The dismissal and discharge do not preclude the state frominstituting a subsequent prosecution for the same offense.

 

(d) Witnesses. At a preliminaryexamination, the magistrate, upon request of either party, may excludewitnesses from the courtroom and may require witnessesnot to converse with each other until the preliminary examination isconcluded. 

 

(e) Writtenfindings. If themagistrate orders the defendant bound over for trial, the magistrate mustexecute a bind-over order and include any written findings in the case record.

 

(f) Assignmenton motion to quash. If a defendant files a motion to quash abind-over order, the motion shall be decided by thejudge assigned to the case after bind-over, regardless of whether the judgeconducted the preliminary examination in the judge?s role as a magistrate.

 

Effective November 1, 2019