dissenting:
I respectfully dissent. The record in this case does not reflect any abuse of discretion in the trial court’s determination that the People failed to establish probable cause.
The purpose of a preliminary hearing is to serve as a screening device to test the sufficiency of the prosecution’s case. As this court has previously stated, “a preliminary hearing is of value to the prosecution in that it offers a method for testing the complaints of prosecuting witnesses, and eliminating prosecutions actuated by prejudice or motives inconsistent with a fair administration of the criminal law.” Maestas v. District Court, 189 Colo. 443, 541 P.2d 889, 891 (1975); Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265, 1269 (1975) (Erickson, J., dissenting).
Here the trial judge apparently concluded that the prosecution had failed in its attempt to establish probable cause almost entirely on the basis of second-hand, hearsay testimony. Prosecutorial tactics such as these deny the defendant any meaningful opportunity to cross-examine key prosecution witnesses or otherwise to challenge the prosecution’s case. The majority’s attempt to distinguish Maestas v. District Court, supra, is unpersuasive, since the key fact in that case, as here, was that the prosecution’s sole witness was a police officer who had no first-hand knowledge of the essential facts. The circumstance that the officer who testified had personally interviewed the witnesses whose hearsay statements he related obviously could not have enhanced the defendant’s ability to test by cross-*6examination the stories related by those witnesses.
In sum, the full potential of the preliminary hearing as a check on the power of the prosecution cannot be realized if we do not recognize that the trial judge is in a much better position than an appellate court to evaluate the case presented and to determine whether or not probable cause has been established. For this court to attempt on review to evaluate the testimony of witnesses it has neither seen nor heard undermines the trial court’s exercise of its factfinding function and thwarts the purpose of the preliminary hearing. Hunter v. District Court, supra (Erickson, J., dissenting). In this case, the trial judge concluded that the prosecution’s proof, based almost entirely on hearsay, fell short of establishing probable cause. I would adhere to the trial court’s finding and conclusion. Therefore I would discharge the rule.
MR. JUSTICE ERICKSON authorizes me to state that he joins in this dissent.