Rule 6.2 - Proceedings at Preliminary Hearing(a)Procedure. At a preliminary hearing the judge shall determine probable cause and the conditions for release, if any. All parties shall have the right to cross-examine the witnesses testifying and, subject to the provisions herein, introduce evidence. Only evidence relevant to these questions shall be adduced. At the close of the prosecution's case, including cross-examination of prosecution witnesses by the defendant, the judge shall determine and state for the record or state in open court whether the prosecution's case establishes probable cause. The defendant may then make a specific offer of proof, including the names of witnesses who would testify, or the defendant may produce the evidence offered. (b)Process. Unless otherwise ordered by the court for good cause shown, process shall issue to secure the attendance of witnesses requested by the defendant or the prosecuting attorney.(c)Hearsay Evidence. The findings by the court shall be based on substantial evidence, which may be hearsay, in whole or in part, provided there is a basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.(d)Suppression Motions Inapplicable. Objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary hearing.(e) Amendment of Charging Affidavit. The charging affidavit may be amended at any time to conform to the evidence, unless substantial rights of the defendant would be prejudiced.(f) Binding Over the Case to the Grand Jury. If, from the evidence, it appears that there is probable cause to believe that a felony has been committed, and that the defendant committed it, the judge shall bind the defendant over to await action of the grand jury.(g) Discharge of the Defendant. If, from the evidence, it appears that there is no probable cause to believe that a felony has been committed or that the defendant committed it, the defendant shall be discharged from custody. The discharge of the defendant shall not preclude the state from presenting the same offense to a grand jury.Comment
Rule 6.2(a) limits the issues at a preliminary hearing to probable cause and the conditions of release. A defendant is permitted to cross-examine witnesses and present testimony and evidence. Rule 6.2(b) complements these rights by providing defendants with process to secure the attendance of witnesses, unless otherwise ordered by the court on a showing of good cause.
Rule 6.2(c) notes the admissibility of hearsay, which is in accord with Rule 1101(b)(4) of the Mississippi Rules of Evidence (except for rules pertaining to privileges, the rules of evidence are inapplicable in probable cause hearings in criminal cases). There is no constitutional requirement that hearsay evidence be excluded from a probable cause hearing. See Conerly v. State, 760 So. 2d 737, 740-41 (Miss. 2000) (determination of probable cause may be based on corroborated and substantiated hearsay); Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956) (upholding a grand jury indictment based solely on hearsay testimony).