Rule 2.4. Duty of judge or magistrate upon making of a complaint

Alabama Rules of Criminal Procedure

Rule 2. Commencement and prosecution of criminal proceedings.

Rule 2.4. Duty of judge or magistrate upon making of a complaint.

The judge or magistrate before whom a complaint is made may subpoena

for examination any necessary witnesses. A judge or magistrate may use

audiovideo communication equipment to examine any necessary witnesses and to

acknowledge under oath facts alleged in the complaint. The audio-video

communication equipment shall operate in a manner that will allow the judge or

magistrate and the witness simultaneously to view and orally communicate with

each other. In the event a duly summoned witness fails to appear, the judge or

magistrate is authorized to issue a writ of attachment for the defaulting witness,

commanding that said witness be brought before the issuing judge or magistrate

at once for the purpose of examination. If the judge or magistrate is reasonably

satisfied from the complaint and the evidence, if any, submitted that the offense

complained of has been committed and that there is probable cause to believe that

the defendant committed it, the judge or magistrate shall proceed under Rule 3.1.

[Amended 6/10/2019]

Committee Comments

Under Rule 2.4, the judge or magistrate is required to determine from the

complaint, from any affidavits filed with the complaint, and from any testimony

taken that the offense complained of has been committed and that there is

probable cause for believing that the defendant committed it.

The purpose served by the rule is consistent with Alabama law and the

mandates of the Fourth Amendment to the United States Constitution. In

Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d

1503 (1958), the United States Supreme Court stated that:

“The purpose of the complaint, then, is to enable the appropriate magistrate

… to determine whether the ‘probable cause’ required to support a warrant

exists

with Alabama law and the

mandates of the Fourth Amendment to the United States Constitution. In

Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d

1503 (1958), the United States Supreme Court stated that:

“The purpose of the complaint, then, is to enable the appropriate magistrate

… to determine whether the ‘probable cause’ required to support a warrant

exists. The [magistrate] must judge for himself the persuasiveness of the

facts relied on by a complaining officer to show probable cause. He should

not accept without question the complainant’s mere conclusion that the

person whose arrest is sought has committed a crime.”

The rule allows the judge or magistrate to examine any witnesses, under

oath, that he deems necessary. The rule also makes it clear that the judge or

magistrate must subpoena only those witnesses who are deemed necessary by

him and that the prosecutor of a complaint cannot require issuance of a subpoena

to compel attendance of non-essential witnesses. The requirement of calling

“necessary” witnesses does not preclude the use of hearsay testimony even on

essential elements of proof, assuming the requirements of the “totality of the

circumstances test” are met. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317,

76 L.Ed.2d 527 (1983).

Note from the reporter of decisions: The order amending Rule 2.4,

effective June 10, 2019, is published in that volume of Alabama Reporter that

contains Alabama cases from __ So. 3d.