Preliminary Hearing vs. Indictment

Hearing roomLet us say that you have been accused of a felony offense, and the police have arrested you. You are held over-night for a bail hearing, after which time you are released on a bond that you posted pursuant to the Judge’s order setting bail. In Chicago, in fact throughout the State of Illinois, at this point in time you have not yet been “formally” charged with a crime, even though a complaint for preliminary examination has been filed with the court (at your bail hearing the complaint was filed and the Judge determined that it properly stated an offense that would justify setting bail and moving forward with the prosecution). It now falls upon the State to formally charge you with the proper felony offense(s).

Probable Cause Must be Found in Felony Cases

In order for you to be formally charged with a felony, there is an extra step in the process that doesn’t exist when charged with a misdemeanor.  For a felony, there must be an independent determination that “probable cause” exists finding that a criminal offense really occurred and that you were the person that committed said offense. This procedure is not an actual trial on the merits and your guilt or innocence is not being determined. But at this stage, there must be some evidence that would justify holding you for a later trial, either by Judge or by Jury. There are two methods that are available to the prosecutor in order to obtain this “finding of probable cause”:

  • They can proceed in secret before a Grand Jury, OR
  • They can proceed in open court in what is called a Preliminary Examination or Preliminary Hearing

State’s Attorney Will Choose the Procedure

It is the experience of our law office that when it comes to which method the State will proceed upon, the decision turns on a number of factors:

  • The nature of the offense itself
  • The criminal history of the accused
  • Whether the case involves civilian witnesses vs. police officers, and other practical considerations.

In Cook County, there are six (6) separate Municipal Districts, and in each one the State’s Attorney’s Office has their own way of doing things. For example, in Chicago, the State tends to proceed by way of a Grand Jury in crimes of violence where there are civilian victims, in high level narcotics prosecutions, and in other instances where it is deemed advantageous to not allow a defendant to cross-examine their witnesses at this early stage. In DuPage, Will, Kane and McHenry Counties however, they tend to take just about every felony to the Grand Jury.

As a point of procedure, it should be noted that if you are being detained in custody, the State must obtain the finding of probable cause within 30 days of your arrest; if you are released on bond, they have up to 60 days. If they fail to obtain either an Indictment from a Grand Jury, or have the Preliminary Hearing within those time frames, then the preliminary charges should be dismissed, and you will be released from custody or from the conditions of your bail. But don’t get too excited, because the State can still re-file the charges against you, at any time within the applicable Statute of Limitations (typically 3 years on most felonies), and you can then be taken back into custody again and be made to post bail again. The “Double Jeopardy” Clause from the 6th Amendment does not apply, as you have not yet faced Jeopardy at a trial on the merits.

What is a Preliminary Hearing?

As stated above, in order for the State to be able to proceed to a trial based on your felony arrest, there must be a finding of probable cause. When the State opts to proceed before a Judge, this is called a preliminary hearing. It is not a trial upon the merits, instead it is a limited hearing designed to allow a Judge to determine if there should ever be a trial in the future. For the Judge to determine whether there is enough evidence for the case to proceed, prosecutors will call up witnesses to give testimony in court. Your defense attorney will be allowed to question and cross-examine those witnesses, although typically the prosecutor will call only one person to testify; that being a police officer.

What differentiates this stage from a trial is that the prosecution does not need to prove that you committed the crime beyond a reasonable doubt. They only need to convince the judge that there is probable cause to believe that a crime was committed according to the charges.

What if There is a Finding of No Probable Cause?

If the judge decides there is not sufficient evidence of this, the case may be dismissed at that point. Then, the State may elect to have whatever misdemeanor charges that apply be transferred to a misdemeanor court room for prosecution, or just allow for the dismissal of the felony charges.

Even in circumstances where charges are thrown out, the prosecutor may elect to re-file charges at a later time. They can proceed to a Grand Jury, in secret, as described below. The only additional requirement put upon the State if they do so, is to alert the Grand Jurors to the earlier preliminary hearing, and the fact of the judicial finding of no probable cause. The transcript of the preliminary hearing must be made available to the Grand Jury upon their request. It is our experience that, in cases where the State wants to prosecute you, that they will not be deterred by a Judge’s finding of no probable cause, and they will go to the Grand Jury.

Can You Testify at Your Preliminary Hearing?

At a preliminary examination, you do have the right to testify on your own behalf, call your own witnesses, present any evidence that is relevant to your case. However, as we said above, you are not on trial. Even if you manage to convince the Judge to find that there is no probable cause, the State can still go in secret and get their indictment. During this procedure, if you testify, you will subject yourself to sworn testimony, under oath and on the record. It can then be used by the State in any further proceeding as prior sworn testimony.  Also,  by testifying you have alerted the State to what will be your defense, and you have given them the ability to investigate your side of the story in order to dismantle your defense at a later trial. Thus, we typically advise our clients to not take the witness stand during a preliminary hearing, to not call witnesses, or present evidence that will ultimately be disputed in court at a later date.

Of course, you do not have to force the State to proceed to a Preliminary Hearing or go to the Grand Jury. One may waive their right to an independent determination of probable cause and agree to allow the formal charges to be filed. Whether a Judge finds probable cause or you waive the hearing, the State will file an Information, which will allege any and all offenses that could reasonably stem from the evidence. There are indeed instances where it is advantageous to waive the hearing, although not too many in our view. You and your defense attorney can discuss the important decision regarding whether or not to waive your right to a preliminary hearing.

What is an Indictment?

A Grand Jury is an alternative to a preliminary hearing and the choice rests solely with the prosecutor or States Attorney. In some counties, rather than going before a judge for a preliminary hearing (such as is common in Cook County and Chicago), when you are charged with a crime, the prosecutor typically elects to send your case in front of a grand jury instead (as is more common in the counties of DuPage, Lake, Kane, Will and McHenry).

A grand jury consists of a group of people from the community who will hear evidence presented by the prosecution. You are typically NOT invited to this proceeding, nor is your attorney, so your criminal defense attorney will not be able to cross-examine any witnesses, unlike a preliminary hearing. Following the prosecution’s presentation, the grand jury will decide whether there is probable cause to believe that the defendant committed a crime, rather than a Judge deciding. If they believe that probable cause has been shown, then an indictment is issued. This means that the case is then assigned to another courtroom where the legal proceedings continue, just as happens after a finding of probable cause following a preliminary hearing.

Take not: The Grand Jury does not need to be unanimous in their decision, which is in contrast to a trial, where the Jury must be unanimous to render a verdict of Guilty or Not Guilty. It has often been said by experienced trial lawyers that “A Grand Jury will Indict a ham sandwich if the State wants them to.” The key to that sentence is, “if the State wants them to.” We have seen recent cases in other states where police officers were accused of violent crimes against individuals and the State went to their grand jury ostensibly seeking an indictment. But lo and behold! The grand juries found no probable cause and refused to indict.

When the State wants an indictment, they present the bare minimum amount of evidence to the grand jurors, so that their decision seems clear. When the State would prefer to not proceed, they often load up the hearing with so many witnesses, some of whom would be presenting evidence for the accused, so that the grand jury disregards their function, and finds no probable cause based upon the totality of evidence they were given. Again, if a grand jury finds no probable cause, there is nothing that prevents a prosecutor from trying again. When the State does not further pursue a defendant under these circumstances, one can draw their own conclusions as to the State’s motivations.

Contact Mitchell S. Sexner & Associates LLC for Help

If you are charged with a felony, a criminal defense attorney can help you navigate this difficult time. Whether your case involves a preliminary hearing or Grand Jury, the key to success is an experienced criminal defense attorney standing next to you. The criminal defense attorneys at Mitchell S. Sexner & Associates LLC understand that you may be nervous or have questions, so we are here to assist you as best we can. We can be reached 24 hours a day, 7 days a week, with convenient office locations not only in Arlington Heights and Chicago, but with availability elsewhere in Illinois as well. Contact us at (312) 644-0444 for a free initial consultation.

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