¶1concurring.
¶2Miniaturization is more than a modern technological phenomenon. Parallel processes affect other fields. A comparable process may be the diminishment of deep-rooted legal doctrines to achieve judicial economy.
¶3Since Rule 5.1(a) of the Federal Rules of Criminal Procedure was adopted in 1972 to allow a finding of probable cause at a preliminary examination to “be based upon hearsay evidence in whole or in part,” there has been a developing attitude “to reduce, not increase, the number of preliminary motions” for “reasons largely of administrative necessity and the efficient administration of justice.” FRCrimP 5.1, Notes of Federal Advisory Committee on Rules (1972). NDRCrimP 4(a), when adopted in 1973, allowed an arrest warrant to be issued on a finding of probable cause based upon “hearsay in whole or in part_” A similar sentence was added to NDRCrimP 5.1(a) in 1995 to allow a finding of probable cause at a preliminary hearing on only hearsay evidence.
¶4Today’s result, allowing virtually automatic transfer from juvenile court to criminal court on hearsay evidence alone, seems to be an extension of the same trend to remove traditional safeguards for judicial economy. That best explains this departure from past precedents.
¶5This result essentially permits the detective or policeman, rather than the judge, to determine the existence of probable cause. While I would have thought this a highly debatable proposition considering the unreliability of most hearsay evidence, see NDREv 802 and 803, I recognize this trend toward judicial economy has gone too far to turn back the clock.
¶6Therefore, I choose to emphasize the judicial duty that is heralded by the Notes of Advisory Committee on Rules with FRCrimP 5.1: “To [permit] a probable cause finding [to] be based upon hearsay does not preclude the magistrate from requiring a showing that admissible evidence will be available at the time of trial.” As NDRCrimP 4(a) explicitly directs, the judge should take care that “there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.”
¶7I concur in the result.