PRINGLE, Chief Justice.
This is an original proceeding brought pursuant to C.A.R. 21 to prohibit the Respondent Court from proceeding with the criminal action brought against the petitioner until he is afforded a proper preliminary hearing. We issued a rule to show cause why the requested relief should not be granted. For the reasons set forth herein, we make that rule absolute.
On December 6, 1974, the petitioner appeared before the El Paso County District Court at a preliminary hearing which was being held at his request to determine whether there was probable cause to charge him with the crime of aggravated robbery. The prosecution called as its only witness Deputy Sheriff Roper, who testified, inter alia, that three eyewitnesses to the alleged robbery identified the defendant in a photo lineup as the perpetrator.
On cross-examination, the following ensued:
Petitioner contends that as a result of this limitation on his cross-examination, he was denied his constitutional right to confront witnesses against him, and was denied his right to cross-examine witnesses at a preliminary hearing as protected by Rule 7(h) of the Colorado Rules of Criminal Procedure. We agree that the respondent unduly limited the petitioner's crossexamination, and therefore denied him his rights as protected by Rule 7(h).
As a preliminary matter, we must deal with the respondent's contention that this is not a proper case for disposition by original proceeding; that the defendant therefore should await final judgment and then appeal. This contention ignores the fact that the purpose of the preliminary hearing is to determine whether there is probable cause to believe that a crime has been committed, and probable cause to believe that the defendant was the perpetrator. Resolution of these questions must be made prior to trial in order to avoid the anomalous situation where a defendant may be found guilty at trial, and then attempt to have the conviction reversed for a preliminary hearing on probable cause. The illogic of this anomaly is further exemplified by the observation of Judge McGowan, writing for the District of Columbia Circuit Court of Appeals, when he states:
Clearly, a refusal to review upon original proceedings the action of the trial court here would result in a situation where such action could never be reviewed as the trial would render the issue moot. See Blue v. United States, 119 U. S.App.D.C. 315, 342 F.2d 894, 900 where the Court of Appeals for the District of Columbia Circuit pointed out that mandamus before trial was the proper remedy and therefore refused to grant relief after trial.
Ordinarily we will not review factual determinations of probable cause made at preliminary hearings. Where, however, the issue is a failure to follow the rules of this Court, and a refusal to intervene by way of original proceeding could result in the perpetuation of this fundamental neglect, we must, under the supervisory powers of this Court to enforce its own rules, accept original jurisdiction.
We are aware of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (Feb. 18, 1975), where the United States Supreme Court in a case dealing with Florida procedure apparently held that the right of cross-examination is not constitutionally required in a preliminary hearing. We are, nevertheless, faced here with Colo. Crim.P.Rule 7(h)(3), which provides as follows:
Our Rule is in pari materia analogous to Fed.Crim.P. 5(1) (2), formerly (5)(c), which also guarantees the right of crossexamination at a preliminary hearing. See
While it is true that a preliminary hearing is not to be conducted as a minitrial, and the rules of evidence may be tempered according to the sound discretion of the trial judge, see People v. Quinn, 183 Colo. 245, 516 P.2d 420, and Crim.P. 7(h)(3), that is not to say that the trial judge can completely curtail cross-examination of a witness on testimony that is vital on the issue of probable cause. Yet in refusing to allow defense counsel in this case to test the strength of the identifications as given to the deputy sheriff, the judge did precisely that.
We therefore hold that the trial judge abused his discretion in not permitting questions on cross-examination that were clearly calculated to deal with the question of whether the hearsay identification testimony given by the officer was sufficiently credible to rise to the dignity of probable cause to believe that the defendant committed the crime charged.
The rule to show cause is made absolute.