Criminal Law

What is the difference between a preliminary hearing and having a case presented to the grand jury?

This is a confusing one, even for some of us that have been in the criminal law field for a while. There are some similarities between the two.

1. Both are used in cases in general sessions (the most serious cases).
2. Both are used to decide if there is enough probable cause for a case to continue.
3. Both are useful in a criminal case.

It is probably most helpful to describe how each works, which may show the differences between the two more clearly.

In preliminary hearings:
It is a hearing done before a case is indicted by the prosecutor (solicitor). It is also conducted before the case is presented to the grand jury. The preliminary hearing must be requested by the defendant, but even if one is requested, the solicitor could indict the case before the hearing is held. If this happens, no preliminary hearing is allowed, since it must be done before the case is indicted. It is a hearing that is presided over by a magistrate, who judges the case on the facts presented to decide only if there is enough probable cause to continue with the case. If the judge decides there is not enough probable cause, the judge can dismiss the case. However, the solicitor can still override the magistrate and indict the case anyway. The solicitor may also go along with the magistrate, and allow the case to be dismissed. (This may be a signal to the police to do more investigation, or to change policy in how they gathered their evidence.)

In grand jury hearings:

A grand jury hearing is conducted by the grand jury, which is a panel of 18 people who meet once a month to go over the cases to be presented. They preside over all the cases presented, not just one case, as is the case in a criminal trial. They also decide whether there is enough probable cause to continue a case. If they decide there is enough evidence, they “true bill” the case, and if they decide there is not enough probable cause to continue, they “no bill” the case. Here, though, if the grand jury does not true bill an indictment, the indictment is dismissed and if the prosecutor wants to continue with the case, he must do another indictment to be presented to the grand jury.

The most important thing to remember about the two is that while a case may have both, a preliminary hearing and a grand jury hearing, only the grand jury hearing is mandatory, and once the grand jury hearing has been done, a preliminary (meaning “first”) hearing cannot be done.

I hope this helps clear up some of the misconceptions about how the court system works. If you have other questions, you can go to my website and get my email address and ask, or post a question here, and I will try to answer it as quickly as possible.

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