What is a preliminary hearing?

A preliminary hearing is a court hearing conducted before trial in which a defendant can challenge whether the prosecution has probable cause that the defendant committed the crime in question. The preliminary hearing serves as a screening mechanism to ensure that the proper cases go forward to trial. At the end of the preliminary hearing, the judge decides whether there is enough evidence for the case to go forward.

Does a defendant have a right to a preliminary hearing in state court?

It depends on individual state law. Some states require preliminary hearings in most all cases. Other states require preliminary hearings in certain felony cases. For example, Colorado provides that all defendants charged with a class 1, 2, or 3 felony have a right to demand a preliminary hearing. In South Dakota, a defendant has a right to a preliminary hearing if charged with a felony or the most serious type of misdemeanor charge. The South Dakota law provides: "No defendant is entitled to a preliminary hearing unless charged with an offense punishable as a felony or class 1 misdemeanor."

What does a defense attorney hope to accomplish at a preliminary hearing?

In some cases, the defense attorney may hope to dismiss the case altogether by showing that the prosecution does not have probable cause to believe that the defendant committed the crime. In other words, sometimes the goal for the defense at the preliminary hearing is victory—getting the charges dismissed by a judge.

Other times, however, the defense might use the preliminary hearing to see what types of witnesses and/or evidence the prosecution has. In other words, defense attorneys sometimes use the preliminary hearing as a strategic testing ground to find out more about the prosecution's case.

Can a defendant waive a preliminary hearing?

Yes, a defendant can waive a preliminary hearing. In some cases, the defendant may intend to plead guilty and does not wish to attract any more publicity or attention to a case.

What is a grand jury?

A grand jury is a body of citizens, usually in groups of 16 to 23, who decide whether a prosecutor has presented enough evidence to obtain an indictment of an individual. Grand juries are designed to serve as a type of buffer between the prosecution and the defendant. Critics charge that grand juries—more often than not—do not serve this ideal buffering function and instead serve as a rubber stamp for the prosecution. There is a famous saying about grand juries that reflects this sentiment—"a grand jury will indict a ham sandwich."

Grand juries are distinct from trial juries—or petit or trial juries—which usually consist of 12 people. Sometimes prosecutors use the grand jury method of initiating criminal charges against individuals, rather than filing what an accusatory document—called an information—and proceeding with a preliminary hearing. The grand jury serves as a screening mechanism to determine whether the prosecutor has enough evidence to obtain what is known as a true bill. If the grand jury decides there is no evidence, it would issue what is called a no bill. Grand juries are used in federal court and in some states. Most states

Grand jurors take an oath of secrecy because grand jury proceedings are not public (iStock).

Grand jurors take an oath of secrecy because grand jury proceedings are not public (iStock).

explain the operational workings and functions of the grand jury in their rules of criminal procedure.

What are other distinguishing features of a grand jury?

Perhaps the most distinguishing feature of a grand jury is its secrecy. Grand jury proceedings are not public and grand jurors are required to take an oath about secrecy. Another distinguishing feature is that traditional rules of evidence do not apply in the grand jury setting. Prosecutors are able to present evidence that might be excluded at trial for being hearsay. Grand juries also have the power to compel witnesses to testify.

The grand jury usually is composed of more citizens than the petit jury. In Texas, however, grand jurors are composed of 12 jurors. Second, the grand jury only hears from the prosecutor, not the defense. The prosecutor decides what witnesses to call and which individuals receive immunity for their grand jury testimony. The subject or target of a grand jury is not allowed to bring an attorney and present evidence. The grand jury has broad powers to subpoena witnesses, including the defendant. The defendant can assert his Fifth Amendment right against self-incrimination at the grand jury proceeding.

If the grand jury refuses to indict can the prosecutor re-file?

Yes, in most states a prosecutor can seek an indictment with another grand jury if the first grand jury refuses to issue a true bill for an indictment. In some states the prosecutor must come forward with new evidence in order to pursue another indictment.

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