Preliminary Hearing or Grand Jury?
April 6, 2011 9:38 AM   Subscribe

Information needed for a script-- When does a crime call for a preliminary hearing, and when does it call for review by grand jury? From my research, it appears that grand juries are not used as much these days, but are still active in California, the state in which I'm interested.

A character in my script has been arrested for a crime. What happens next: does he go to a preliminary hearing, or does a grand jury review his case? (This takes place in California.)

Details: the accused is over 21; he was identified in an eyewitness photo line-up; he has no valid alibi; he is a poor (legal) immigrant

Pardon my ignorance if I'm missing some obvious answer here; this is an entirely new arena for me.

Thank you!
posted by aimeedee to Law & Government (10 answers total)
According to the California Grand Jurors Association, the district attorney much more frequently bypasses the grand jury and uses the process known as a preliminary hearing. A 1954 survey of California district attorneys listed the following factors as influential in the decision to seek a grand jury indictment rather than using the preliminary hearing:

High public interest in the case;

The fact that a preliminary hearing would take more time than a grand jury hearing;

The necessity for calling children or witnesses who would be subject to cross-examination at a preliminary hearing;

The existence of a weak or doubtful case which the district attorney wishes to test;

Cases involving malfeasance in office; and

The fact that witnesses are in a state prison.

A more recent study adds the following reasons for using the grand jury:

Cases where the defendant cannot be located and the time limit under the statute of limitations is about to expire,

Where the secrecy of the grand jury may allow defendants to be charged and taken into custody before they can pose potential danger to a witness's safety or flee from the jurisdiction,

The need to protect the identity of undercover agents,

And the ability to test a witness before a jury.
posted by inturnaround at 9:49 AM on April 6, 2011

So, to answer your question, it would almost certainly be a preliminary hearing in your character's case.
posted by inturnaround at 9:49 AM on April 6, 2011

What is your character accused of doing?

And, out of curiosity, is this for Script Frenzy?
posted by SMPA at 10:47 AM on April 6, 2011

I would make sure you get the opinion of a California attorney on this (I'm sure one will chime in here). Different localities use grand juries differently.

In my state, a given case often has both a preliminary hearing AND a grand jury indictment.
posted by jayder at 11:24 AM on April 6, 2011

Another factor that is probably relevant -- is the defendant in your script in jail, or has he bonded out?

Preliminary hearings are often used to determine whether there's enough evidence against a defendant to continue holding them in jail. Where I practice, in serious cases, a preliminary hearing happen on virtually all serious felony cases unless the defendant waives the hearing for tactical reasons or because the defense attorney thinks it would have no benefit. Defendants are technically entitled to them on ALL criminal cases in my state. Defendants hardly ever put on evidence at a prelim ... only the state does. A grand jury can take months (occasionally years) to indict a defendant, so the preliminary hearing is an important safeguard to ensure that a defendant is not sitting in jail for a long time when there's little evidence against him or her.

In my experience, one of the principal benefits of a preliminary hearing is that it puts witness testimony on the record, under oath. In serious cases that take years to go to trial, if a witness was lying, they often will contradict their preliminary hearing testimony when they go to trial. This is why, when a case is very serious, attorneys tend to want preliminary hearings.

There may be other considerations in California.
posted by jayder at 11:30 AM on April 6, 2011

I should qualify this statement I made:

Defendants are technically entitled to them on ALL criminal cases in my state.

I should have said, "Defendants are technically entitled to them on ALL criminal cases in my state where the prosecution is initiated by a police arrest or citation."
posted by jayder at 11:35 AM on April 6, 2011

Response by poster: Thank you, inturnaround, for the protocol. Very helpful.

The defendant is in jail; he can't afford to bond out.

No, this isn't for Script Frenzy, although that might be in my future next time around.

Preliminary hearing sounds like the most realistic scenario--but one thing confuses me.
Jayder, why don't defendants offer evidence at a prelim? If it's an opportunity for the state to determine if there's probable cause, wouldn't evidence for the defense be in order?
posted by aimeedee at 12:11 PM on April 6, 2011

The standard of proof at a probable cause hearing is low, and the judges generally view the evidence in the light most favorable to the state. The preliminary hearing judge or magistrate does not engage in careful weighing of credibility of witnesses, but engages in reasoning something along these lines -- "if the jury found these witnesses credible, is it conceivable that the jury could find the defendant guilty?"

Because the standard of proof is so low, there's little chance that proof adduced by a defendant will change a probable cause finding. Given that, one would not want to (a) tip your hand earlier than necessary about what your evidence/defense/witnesses will be, and (b) you would not want to expose your defense witnesses to cross examination prior to trial, because that would give the state a chance to find inconsistencies between prelim and trial testimony that could be used to impeach your defense witnesses.
posted by jayder at 7:24 PM on April 6, 2011

Actually, you would not want your witnesses to TESTIFY UNDER OATH prior to trial. The concern is not so much about not exposing them to cross, as it is to the dangers of having their testimony on record prior to trial. Even the best witnesses may testify inconsistently at prelim and trial ... You don't want to give the state ammo to call their credibility into doubt.
posted by jayder at 7:28 PM on April 6, 2011

Response by poster: Thank you for such a cogent explanation. This is extremely helpful.

AskMeFi rides to the rescue once again!

I look forward to including a thanks to MetaFilter in the credits (yeah, I gotta sell the thing first; I know...)
posted by aimeedee at 5:31 AM on April 7, 2011

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