Standard of proof “probable cause”: interpretation of the supreme court of the USА and national practice of applying
Journal Title: Правова позиція - Year 2018, Vol 1, Issue
Abstract
The article is devoted to defining the nature of “probable cause” as a standard of proof in the criminal proceedings. Based on the analysis of case law of the USA Supreme Court, the main features of a “probable cause” as a standard of proof in criminal proceedings have been identified and analyzed. Probable cause is a requirement found in the Fourth Amendment to the United States Constitution that must usually be met before police make an arrest, conduct a search, or receive a warrant. Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search). Under exigent circumstances, probable cause can also justify a warrantless search or seizure. At the same time, to establish probable cause, police officers must be able to point to objective circumstances leading them to believe that a suspect committed a crime. Although the Fourth Amendment states that “no warrants shall issue, but upon probable cause”, it does not specify what “probable cause” actually means. The Supreme Court has attempted to clarify the meaning of the term on several occasions, while recognizing that probable cause is a concept that is imprecise, fluid and very dependent on context. In Illinois v. Gates, the Court favored a flexible approach, viewing probable cause as a “practical, non-technical” standard that calls upon the “factual and practical considerations of everyday life on which reasonable and prudent men … act”. The Fourth Amendment requires that any arrest be based on probable cause, even when the arrest is made pursuant to an arrest warrant. Whether or not there is probable cause typically depends on the totality of the circumstances, meaning everything that the arresting officers know or reasonably believe at the time the arrest is made. However, probable cause remains a flexible concept, and what constitutes the “totality of the circumstances” often depends on how the court interprets the reasonableness standard. Also, it is affirmed that probable cause exists when there is a fair probability that a search will result in evidence of a crime being discovered. In general, probable cause requires more than a mere suspicion that a suspect committed a crime, but not as much information as would be required to prove the suspect guilty beyond a reasonable doubt. As a conclusion, based on the analysis of the US Supreme Court practice and the doctrinal views of foreign scholars, it can be argued that in the criminal proceedings the standard of proof “probable cause” is the evel of persuasion (conviction) suitable for making decisions on the detention of a person and/or conducting a search by persons authorized by law, which is achieved on the basis of an assessment of the facts and circumstances of the criminal proceedings in their integrity, which is carried out using the special knowledge of these individuals, obtained from their professional experience, the results of which indicate a “probability”, rather than confidence and certainty, in the necessity of the decision making in the criminal proceedings.
Authors and Affiliations
А. А. Павлишин, Х. Р. СЛЮСАРЧУК
Keywords
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