12.5: Preliminary Hearing (Information) vs. Grand Jury (Indictment)
Another important aspect to understand and differentiate is the difference between the preliminary hearing or having a grand jury. These are two ways the district attorney demonstrates he or she has enough evidence to proceed with a trial. But they are very different in how they accomplish this goal. In felony cases, the police report and complaint are not enough to go to trial. The district attorney must prove probable cause that the defendant committed the crime they are accused of, they must prove probable cause for each charge.
Preliminary Hearing
At the preliminary hearing, the prosecution will present their evidence to prove the person named in the complaint has committed the offenses they are charged to have committed. Often times this is done by having the officers who investigated the crime come and testify in court. Because this is a preliminary hearing and not a full trial, there are differences in the prosecutor's ability to provide evidence. For example, an officer can provide information (evidence) they were told or heard during the investigation. Because the prosecutor has a lower burden of proof at the preliminary hearing, it is relatively easy for them to prove to the judge there is probable cause to hold the defendant over for a formal trial. The defense attorney may also cross-examine the witnesses (police investigators) and attempt to discredit or "poke holes" in the prosecution's evidence. During this time, the defense also gets an idea of the evidence and may seek to suppress evidence through an exclusionary hearing after the preliminary hearing. The judge will then evaluate the evidence provided by the prosecutor to prove the charges in the complaint. The judge may find all the charges were proven or may find the prosecutor was only able to prove specific charges. Once it has been determined which charges have been proven, the prosecutor then submits the information to the court with the specific charges that will go to trial.
Grand Jury
The grand jury process is used less frequently by the prosecution and is the second way to formally charge a person with a criminal offense. Unlike the preliminary hearing, this hearing is not a public hearing. The grand jury is a legal body that has the ability to investigate possible criminal activity and bring formal charges against a defendant. In California, the grand jury is composed of 11-19 members from the general public who volunteer to serve on the jury for one year. And unlike a jury on a trial, not all jurors have to agree there is enough probable cause to believe the defendant committed the offenses charged by the prosecution. For example, if there were 16 jurors, only nine would have to believe there was enough probable cause to issue a verdict. Similar to the preliminary hearing, the prosecution presents their evidence to the jury to establish probable cause. The defense attorney and defendant are often not present at this hearing and therefore are not able to cross-examine the witnesses. The defense counsel will receive a transcript of the hearing.
After the prosecution, the jury will deliberate on the evidence provided to determine if there is probable cause to proceed to trial. If a minimum of nine grand jurors believe probable cause exists, they will provide a true bill . A true bill is the written decision of the juror and from there, an indictment will be drafted identifying all of the charges that will proceed to trial. The indictment is the same filing as the information found during the preliminary hearing and is the legal document that formally charging the defendant.
In California, a vast majority of criminal cases use the preliminary hearing process. So why does the prosecutor decide to take some cases to the grand jury? One of the biggest considerations is the fact the grand jury process is held in private. This allows the prosecution to maintain control over the evidence they have to prove the defendant's guilt. The defense counsel is provided discovery which outlines the information provided by the police during the investigation process, but unlike the preliminary hearing, the defense counsel does not get a chance to view testimony or cross-examine the witnesses. Additionally, all witnesses provide their testimony separately so no one hears the testimony other than the jurors, court reporter, and prosecution. This can also be useful in the event a witness later changes their testimony at trial or is coerced to change their testimony. A record will be maintained of all evidence presented in the grand jury hearing.
Critical Look at the Grand Jury Process - Exculpatory Evidence
In California, the prosecution must present any exculpatory evidence to the grand jury. Exculpatory evidence is any evidence that may prove the defendant did not commit the offense. However, since the defendant and defense counsel are not present, and this hearing is held in secrecy, who ensures that the prosecution presents this evidence to the grand jury? This is one of the criticisms of the grand jury process. It is important to know that on average the grand jury will present a "true bill" on the charges brought before them, 95-99% of the time.
Why the Prosecution Uses the Grand Jury Process Over the Preliminary Hearing Process
When the prosecution is asked why they use the grand jury process over the preliminary process, there are a number of reasons they identified.
- The public is highly interested in the case and if held in open court during a preliminary hearing. Using the grand jury eliminates the public hearing details of a crime before a trial. This may be important to ensure the prospective jury is not tainted by evidence that may or may not be admissible during trial.
- A preliminary hearing may take longer than a grand jury hearing.
- To protect child witnesses or timid witnesses who would be cross-examined by the defense counsel in a preliminary hearing.
- To gauge the performance of a witness on the stand.
- Because the hearing is in private, the defendant may be unaware of the pending criminal proceedings and the witness can be protected from potential violence and also may prevent the defendant from fleeing the jurisdiction.
- To protect the identity of undercover officers or public officials.
- In cases where there may be official misconduct. The grand jury is held in secrecy so a hearing can be conducted into potential official misconduct without public scrutiny.
To learn more about the process of preliminary hearings in California criminal cases, watch this video: preliminary hearings in CA criminal cases .
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To learn more about a grand jury and how it functions, watch this video: what is a grand jury .
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Find more information on the California Grand Jury system here: California Grand Jury system .