RULE 5.1 PRELIMINARY EXAMINATION(a) Probable Cause Finding. If from the evidence it appears that an offense has been committed and that there is probable cause to believe that the defendant committed it, the magistrate shall forthwith bind the defendant over to the grand jury and either release the defendant pursuant to applicable law or commit the defendant to jail by a written order. The finding that an offense has been committed and that there is probable cause to believe that the defendant committed it shall be based upon evidence which may not be inadmissible hearsay except documentary proof of ownership and written reports of expert witnesses. The defendant may cross-examine witnesses against him or her and may introduce evidence. Rules excluding evidence from consideration by the magistrate on the ground that it was acquired by unlawful means are applicable. The evidence of the witnesses is not required to be reduced to writing by the magistrate, or under the magistrate's direction, and signed by the respective witnesses; but the proceedings shall be preserved by electronic recording or its equivalent and when the defendant is subsequently indicted such recording shall be made available for listening to by the defendant or defendant's counsel to the end that they may be apprised of the evidence introduced upon the preliminary examination.
(b) Discharge of Defendant. If it does not appear from the evidence that an offense has been committed and that there is probable cause for believing the defendant committed it, the magistrate shall discharge the defendant. The discharge of the defendant shall not preclude the State from instituting a subsequent prosecution for the same offense.
(c) Records. After concluding the proceeding the magistrate shall transmit forthwith to the clerk of the criminal court all papers and records in the proceedings in those cases wherein probable cause is found. Where probable cause is not found, the records and papers will be returned to the clerk of the general sessions court.
[Amended effective August 1, 1979.]
The subject of the preliminary examination, or preliminary hearing, has been the focus of a considerable amount of litigation in recent years. The purpose, scope, and quality of evidence to be admitted upon a preliminary hearing have likewise been the subjects of intense debate. Some of the language in McKeldin v. State, 516 S.W.2d 82 (Tenn.1974), authored by Justice Joseph W. Henry, the same justice who served as the Tennessee Supreme Court's liaison with this Commission, has fueled the contention that this stage of the proceeding is a discovery procedure for the accused. It is the Commission's position, to the contrary, that McKeldin does not convert the preliminary hearing into a "fishing expedition," with unlimited potential for discovery. The case holds that the preliminary hearing is a probable cause hearing, which can result in providing discovery to the defendant, an important byproduct of its probable cause function. It should be reiterated that McKeldin did not mandate discovery at the preliminary hearing; it merely recognized a prevailing practice.
Discovery is specifically addressed elsewhere in these rules, and the rights of the accused and of the State clearly spelled out. As stated above, the preliminary examination is a probable cause hearing, and the scope of the proceeding is under the control of the magistrate in the exercise of a sound discretion. It is unnecessary for the magistrate to hear more of the State's proof than is necessary to establish probable cause, and the magistrate may terminate the hearing at any time that probable cause has been established and the accused has been afforded the opportunity to cross-examine the witnesses called by the State and to present defense proof reasonably tending to rebut probable cause. There is no right of the accused to call as witnesses all of the State's witnesses and question them. The magistrate may permit the accused to call witnesses summoned by the State, if in the exercise of a sound discretion the magistrate determines such testimony to be of use to the magistrate in determining probable cause, or the absence thereof. To repeat, the scope of the hearing is under the control of the magistrate, in the exercise of a sound discretion and governed by principles of fundamental fairness. The purpose of the hearing is to adjudicate the existence or absence of probable cause, and not to discover the State's case.
The quality of the evidence required is clear; it may not be inadmissible hearsay, except in those two instances deemed by the Commission to be sufficient to warrant their being exceptions, i.e., documentary proof of ownership and written reports of expert witnesses. Waugh v. State, 564 S.W.2d 654 (Tenn.1978). See also Chapter 867, Public Acts 1978, effective amending T.C.A. §40-1115.
The last sentence of 5.1(a) has been added to the rule to clearly eliminate the archaic and impractical requirement of T.C.A. §40-1115, while making it clear that the constitutional right of the defendant to have access to a recording of the proceedings must be honored. See Britt v. North Carolina, 404 U.S. 226 (1971). There is no requirement that a written transcript of the proceedings be made; and certainly the requirement for an electronic recording can be waived, if knowingly and voluntarily done.