dissenting: I agree with the law cited by the majority opinion. I disagree with the majority’s conclusion that probable cause existed to believe that the defendant committed the crimes charged. Therefore, I dissent and would affirm the district court’s decision to dismiss charges and discharge the defendant.
K.S.A. 22-2902 establishes that every person arrested on a felony warrant has a right to a preliminary examination-unless the warrant issued following grand jury indictment. K.S.A. 22-2202(16) defines a preliminary examination as “a hearing before a magistrate on a complaint or information to determine if a felony has been committed and if there is probable cause to believe that the person charged committed it.”
Where there is evidence that a crime has been committed, the judge must determine whether there is probable cause to believe that the person charged committed the crime. There is no disagreement in this case that the felonies charged were committed. The question is whether there was probable cause to believe that the defendant committed the felonies. To prove probable cause, there must be sufficient evidence to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt. The evidence need not prove guilt beyond a reasonable doubt, only probable cause. State v. Bell, 259 Kan. 131, 132-33, 910 P.2d 205 (1996).
As noted by the majority opinion, this court requires a judge to pass judgment on the credibility of prosecution and defense witnesses when determining whether probable cause exists. State v. Bell, 259 Kan. at 133; State v. Jones, 233 Kan. 170, 174, 660 P.2d 965 (1983). In Jones, the question before this court was whether the trial court conducting die preliminary examination could consider testimony relating to an accused’s defense. We concluded that a magistrate “has a duty not only to pass judgment on the credibility and competency of a witness, but may consider evidence of a defense.” 233 Kan. at 174. In Jones, prosecution witnesses and the accused’s witnesses presented directly conflicting testimony. The prosecution witnesses testified that the accused was the ag*538gressor and the accused’s witnesses testified that he had to use the chain in self-defense to ward off the crowd. This court concluded that “a question of fact exists for the jury, and the magistrate must draw the inference favorable to the prosecution. Where there is some doubt that the defendant failed to act in self-defense, he must be bound over for trial.” 233 Kan. at 174.
The issue of witness credibility at a preliminary examination must be approached with caution. When passing upon this question in State v. Chapman, 252 Kan. 606, 620, 847 P.2d 1247 (1993), we noted that the judge or magistrate must keep firmly in mind
“other basic principles applicable to consideration of sufficiency of the evidence at a preliminary examination:
‘A preliminary examination differs from a trial. This court stated in In re Mortimer, 192 Kan. 164, 166, 386 P.2d 261 (1963):
‘ “There is a difference between the quantum of proof essential to a binding over for trial and that required to convict at the trial. The guilt or innocence of a defendant is not adjudged at a preliminary examination, and it is not necessary that evidence upon which a defendant is held for trial should be sufficient to support a conviction. It is enough if it shows that an offense has been committed and that there is probable cause to believe the defendant is guilty.”
In the recent case of State v. Hunter, 232 Kan. 853, 854, 658 P.2d 1050 (1983), Justice Miller stated:
‘ “The reasonable doubt test has no place in a preliminary examination. As we have said many times, a magistrate conducting a preliminary examination serves a limited function: to determine whether it appears that a felony has been committed, and whether there is probable clause to believe that the accused committed it. It is an inquiry as to whether the defendant should be held for trial.” ’ 233 Kan. at 172-73.”
In Chapman, the district magistrate judge had dismissed certain charged offenses after the preliminary examination. No reasons were stated. 252 Kan. at 614. In the dissenting opinion in Chapman, Justice Abbott noted that the court did “not know what the trial judge’s reasoning was.” 252 Kan. at 623. Under these circumstances, Justice Abbott concluded that the State had failed to provide a record sufficient to review its claimed error and that the case should be affirmed.
In reversing the magistrate’s decision, the majority noted that the bulk of the evidence at the preliminary examination was the *539testimony of two convicted felons who may have hoped to lighten their own punishment by testifying against Chapman. The court acknowledged that “[i]t was the magistrate’s duty to assess their credibility.” 252 Kan. at 616. However, we noted that if the reasoning of Jones is followed,
“the court would not require the magistrate to discharge Chapman due to doubts about the witnesses’ credibility as long as the doubts did not obviate the appearance that he probably committed the felony with which he was charged. 233 Kan. at 173-74. The following statement of the applicable principle appears in Jones: ‘At the preliminary examination when there is a conflict in testimony, a question of fact exists for the jury, and the magistrate must draw the inference favorable to the prosecution.’ 233 Kan. 170, Syl. ¶ 4.” (Emphasis added.) 252 Kan. at 616.
The majority opinion in this case relies heavily upon Chapman, concluding that, “if the trial court had doubts about Giordano’s credibility, those doubts should have been resolved in favor of the State so iong as they did not obviate the appearance that Wilson probably committed the crime charged.”
It is at this point that I part company with the majority opinion. Chapman, while good law in this state, does not support the majority’s opinion that Wilson should be bound over for trial.
In Chapman, we noted that the bulk of the evidence “was the testimony of two convicted felons who may have hoped to lighten their own punishments by testifying against Chapman.” 252 Kan. at 616. However, we also noted that the two witnesses were consistent in their testimony that Chapman was involved in the crimes charged and that there was no evidence to suggest that their testimony concerning Chapman’s involvement in the crimes charged was otherwise impeached. Moreover, we noted that other circumstantial evidence admitted at the preliminary hearing supported Chapman’s involvement in the crimes and also served to identify the drugs involved. Clearly, under those circumstances doubts about the two convicted felons who testified against Chapman “did not obviate the appearance that [Chapman] probably committed the crime[s] charged.”
Unlike Chapman, here was no other circumstantial evidence involving the defendant in this case. Unlike Chapman, the impeachment did not involve general bias, prior convictions, or an interest *540in the outcome. Rather, the impeachment in this case bore directly upon the credibility of a single witness identifying the defendant as the person who committed the crimes charged. The impeachment went to the heart of the State’s burden at a preliminary hearing, vis., probable cause that the defendant committed the crimes charged.
Unlike Chapman, we are not required in this case to guess at the reasons why the judge concluded that there was no probable cause to believe that the defendant committed the crimes charged. The majority quotes the judge’s reasoning for his discharge of the defendant. The judge’s reasons are amply supported by the evidence of record as well as by the law.
The State in this case elected to call a single witness. Unlike Jones, there was no conflict in the testimony. This is not a case of one witness saying one thing and another witness saying another. Rather, a single witness became sure that the defendant was involved in the crimes charged after the witness was shown photographs of people in the neighborhood.
According to Officer Giordano, she did not become sure that the person she saw was a male or female until later when she picked out a photograph at the police station. Giordano also admitted that at the time of the buy she could not tell whether the person she saw was black, white, or Hispanic. She identified the person as “tan.” Giordano also testified that she thought the person was 5’7“ tall. Giordano testified that she saw the person leave the house from a distance of about 30 feet and then again saw the person within 5 feet while the purchase of the cocaine occurred.
Three days later, Officer Giordano returned to the Saline County Sheriff s office to complete her written report. Prior to preparing her report, Deputy Sheriff James Hughes handed her five or six still photographs taken of people in the neighborhood where the cocaine buy occurred. These photographs were taken while officers were conducting surveillance of drug activities in the neighborhood. He admitted that he did not follow the usual procedures for a photographic lineup with a civilian witness. Rather, he simply gave Giordano the photographs and told her to find the one who looked like the person she saw. Hughes stated that he did so be*541cause he felt Giordano was properly trained and qualified. The photographs shown to Giordano were not introduced into evidence, and Deputy Hughes did not know if he still had the photographs. Giordano identified the defendant from the photographs.
The criteria applied in selecting photographs to be shown to the witness before the preliminary examination, the manner in which they were shown to the witness, and the unavailability of the photos at the time of the preliminary examination undermine the credibility of the witness’ in-court identification. Deputy Hughes testified that he imposed no selection criteria on the pictures used and, instead, simply used pictures taken of people in die neighborhood. Rather than following the usual procedures for civilian witnesses, he simply gave Officer Giordano “five or six” photographs and told her to find the one that looked like the person she saw. The conclusion of the trial judge that the photo array tainted the in-court identification rests upon a solid legal foundation. See State v. Nesmith, 220 Kan. 146, 147-48, 551 P.2d 896 (1976) (test applied to determine whether photographic identification was impermissibly suggestive).
The faulty photo array, together with the effective cross-examination of the single witness called by the State to establish that the defendant committed the crimes charged, created the kind of doubts referenced in Chapman. The substantial legal and factual doubts obviated the appearance that/the defendant probably committed the offenses with which she was charged. See 252 Kan. at 616.
As stated above, this court requires trial judges of this state to seriously consider the accused’s defense and pass judgment on the credibility and competency of both the State’s and the defendant’s witnesses at the preliminary examination. 259 Kan. 131, Syl. ¶ 4. While our review is de novo, we should not forget that we review a record. The trial judge in this case had the opportunity to view the only witness called by the State, observe her testifying, and perform the responsibility set forth in Jones and Bell.
The State controls the prosecution of its case. It decides what evidence it will present at the preliminary examination to establish probable cause. Should the State fail to present sufficient evidence *542at the preliminary examination that a crime has been committed and the defendant committed it, the defendant is discharged. However, the State may immediately refile the charges and proceed with additional evidence to be presented at a second preliminary hearing. Or, the State may choose to appeal the dismissal direcdy to this court.
In this case, the State chose to present a single witness at the prehminary hearing, attesting to the fact that the defendant committed the crimes charged. According to the record, Officer Giordano and an informant working with Officer Giordano were together when the drug transaction took place between the informant and the defendant. While Officer Giordano identified the defendant six times during her prehminary examination testimony, she did so only after she was given the opportunity to identify the defendant’s photograph. Consistent with this court’s prior decisions, the trial judge simply did not believe the in-court identification. The record read in a light most favorable to the State supports the trial court’s decision.
Finally, there is a threshold the State must meet in presenting evidence at a prehminary hearing. Other evidence was apparently available to the State, but it elected not to present that evidence. Affirming the district court in this case leaves the State in much the same position, for it may file the same charges again and proceed with another preliminary hearing, this time presenting all of its evidence. If for some reason it has no additional evidence to present, then based upon this record and for the reasons stated above, the defendant should be discharged. Reversing the district court on the basis of this record is contrary to our decisions in Jones, Bell, and Chapman and has the tendency to discourage thorough preparation by the State in presenting its evidence at a prehminary examination.