specially concurring in the result only:
A preliminary hearing is a screening device to determine whether probable cause exists to believe that the defendant committed the crime charged. People v. Quinn, 183 Colo. 245, 516 P.2d 420 (1973). The preliminary hearing is not a mini-trial and greater evidentiary latitude is granted to the prosecution to establish probable cause at the preliminary hearing than would be permitted in proving the commission of the crime by the defendant at the time of trial. Maestas v. District Court, 189 Colo. 443, 541 P.2d 889 (1975). In determining whether the evidence is sufficient to bind the defendant over for trial, the trial court must view the evidence in the light most favorable to the prosecution, and proof necessary to support a conviction is not required. People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977). The sole issue at a preliminary hearing is whether evidence has been produced which establishes probable cause that the defendant committed the crime charged. People v. Brisbin, 727 P.2d 374 (Colo.1986).
In this case, the minor child suffered severe injuries during the time she was in the sole custody of her mother, the defendant. The seizures, according to Dr. Richard Krugman, an expert witness who worked with child abuse victims, occurred soon after the infliction of the head injuries of the type suffered by the victim. Dr. Krugman also testified that the child was clinically well prior to the mother’s taking custody. The child, according to the father and the aunt, was not suffering from seizures and had no injuries when the mother took custody. The occurrence of the seizures, which are closely connected to the time that the trauma occurred, circumstantially ties the defendant to the commission of the crime. Although Treat, 193 Colo, at 574, 568 P.2d at 474-75, contains the statement that the defendant “may have” committed the crime, such a standard has never been the test formulated by our case law. Crim.P. 7(h) repeatedly uses probable cause as the standard. Probable cause cannot be established by proof that the defendant may have committed the crime. The term “may have,” as used in Treat and its progeny, was an inadvertent and unfortunate use of words that has no place in preliminary hearing jurisprudence. To the extent that the term “may have” has been used in formulating a test for probable cause, I would disavow the criteria.
When the evidence before the trial is sufficient to establish probable cause and the case is dismissed, reversal is required. People v. Spurrier, 712 P.2d 486 (Colo.1986). Here, the evidence was sufficient to establish probable cause that the defendant committed the crime charged, and I would, accordingly, reverse the trial court and reinstate the charges.
I am authorized to say that Justice KIRSHBAUM and Justice MULLARKEY join in the special concurrence.